Courthouse Steps Decision Webinar: NCAA v. Alston

Corporations, Securities & Antitrust Practice Group Teleforum

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On June 21, 2021, the Supreme Court unanimously decided NCAA v. Alston in favor of respondent. Writing for the Court, Justice Gorsuch explained that the district court's injunction on NCAA rules limiting the benefits schools can make available to student athletes is consistent with antitrust law and principles. Justice Kavanaugh filed a concurring opinion.

Featuring: 

  • Michael Murray, Former Principal Deputy Assistant Attorney General, Antitrust Division, U.S. Department of Justice

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Event Transcript

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Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's Practice Groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Nick Marr:  Welcome, everyone, to this Federalist Society virtual event as this afternoon, June 30, 2021, we’re having a Courthouse Steps Decision Webinar on a case called NCAA v. Alston. I’m Nick Marr, Assistant Director of Practice Groups here at The Federalist Society. As always, please note that expressions of opinion on our call today are those of our expert.

 

      We’re very pleased to be joined this afternoon to cover this case, discuss the implications, and everything having to do with antitrust and college basketball. And we’re joined by Mr. Michael Murray. He’s former Principal Deputy Assistant Attorney General in the Antitrust Division at the U.S. Department of Justice.

 

      After Mr. Murray gives his opening remarks and covers the case, which should be about 20 to 30 minutes, we’ll be looking to you, the audience, for questions, so please submit those via chat or the Q&A chat. We’ll look to those when we get to that portion of the call.

 

      With that, Mr. Murray, thanks very much for being with us. The floor is yours.

     

Michael Murray:  Thanks, Nick, and thank you for having me today. It’s great to be here digitally. I look forward to an interesting discussion, so please do submit any questions you have that occur to you while I’m speaking or after I’m speaking, and I’m happy to start a discussion there.

 

      As Nick said, the topic for today is NCAA v. Alston Supreme Court case. I thought I’d begin with a brief overview of the case for those that have not had the time to read the 35 page opinion or are generally unfamiliar with the decade-long history of this litigation. And then I’ll offer my top ten or so reflections on this case, which I’ve grouped into four general areas, the effect of the decision on this dispute regarding compensation for student athletes, the implications of the decision for antitrust law, the relevance of the decision to the big tech or tech enforcement investigations, and the significance of the decision for Supreme Court watchers.

 

      Without getting ahead of myself too much, I’ll say now that I think the decision is fairly significant on all those fronts and will be discussed for years to come.

 

      Let me start with a brief discussion of the context of this case. This case is the latest in a long line of challenges to the NCAA’s restrictions on compensation for student athletes. The Supreme Court here held very briefly, and I’ll go into this in more detail in a moment, that the NCAA’s limits on education-related benefits to players violated the antitrust laws. When we say education-related benefits, what we mean are things like post-eligibility to internships, graduate school or vocational school training, and possibly any kinds of benefits like a laptop or a musical instrument for an athlete who plays, say, the cello.

 

      To understand where we are, though, before we dive into the opinion today, I think it’s important to consider the history of these challenges just for a moment so everyone’s kind of on the same page, and I think they set the stage for what happened in this decision. The first challenge that’s really of relevance here is the NCAA v. Board of Regents of the University of Oklahoma, a case from several decades ago. And in that case, the University of Oklahoma and some others challenged the NCAA’s television plan for broadcasting football games.

 

      And the Supreme Court held that the plan violated the antitrust laws and applied the full rule of reason and concluded that the plan restricted output, raised prices. And then the Court rejected the NCAA’s defense that the plan was necessary to a joint venture to market broadcast rights. It also rejected its defense that it was acceptable to protect live audience ticket sales and that it was necessary to protect competitive balance. And that was a significant loss for the NCAA.

 

      But the Court at the time made some statements which favored the NCAA for the future that have come back into relevance for this type of litigation. For example, Justice Stevens opined,  and I’ll just read the quote because the quote itself explains why it’s relevant. He opined, “The NCAA seeks to market a particular brand of football, college football. The identification of this quote, unquote, ‘product’ with an academic tradition differentiates college football from and makes it more popular than professional sports to which it might otherwise be comparable, such as, for example, minor league baseball. In order to preserve the character and quality of this quote, unquote, ‘product,’ athletes must not be paid, must be required to attend class, and the like.”

 

      So you can see the NCAA relied on this and related language to defend itself against challenges that fixing athlete compensation at a low number did not violate the antitrust laws. And it was generally successful in that regard, and that state of affairs prevailed until the O’Bannon v. NCAA case in 2015, roughly. In that case, several players, including basketball great Ed O’Bannon, one of the players I watched when I was younger in, I believe, a national championship game, challenged the NCAA’s restrictions on athletes being compensated for the use of their names, images, and likenesses, what are commonly known as NILs, through full cost of attendance scholarships. And the players also saw cash payments of about $5,000 for NIL compensation.

 

      The Ninth Circuit agreed that prohibiting full cost of attendance scholarships compensated for  name, image, and likeness use violated the antitrust laws, but it did not enjoin the prohibition on cash payments. So it sort of split the baby.

 

      This issue is, of course, still in the news. Various states have enacted legislation requiring compensation for name, image, and likeness use. And my former boss, AG Makan Delrahim, sent a letter to the NCAA that was reported on the press suggesting that the NCAA policy in this regard raised antitrust issues.

 

      And that letter, echoing one of AG’s Delrahim’s earlier speeches, also addressed the NCAA compensation issues more generally and argued in a way that foreshadowed Justice Kavanaugh’s concurrence. They may, quote, “raise concerns limiting antitrust laws.” And of course, the NCAA now, in news that broke earlier this week, now appears poised to allow some name, image, and likeness use compensation, although I think the details are still emerging.

 

      So that brings us to the current challenge, which was initiated around the time of the O’Bannon case and really can be seen as a successor in some sense to that case. And here, a group of players, D1 football and men and women’s D1 basketball players, challenged the NCAA’s compensation rules. And the same court as the district court in O’Bannon had the case and held a ten day trial. And after that trial, the court ruled in part for the NCAA and in part for the players. And it applied the full rule of reason analysis, no abbreviated analysis, the full rule of reason.

 

      And so the first step, which was whether the plaintiff meets its burden of showing that the challenge restraint has a substantial competitive effect, the court concluded—and here it’s important to note that there was not really a serious objection from the NCAA—that the NCAA, quote, “enjoys near complete dominance of exercise of monopoly power in the relevant market of D1 basketball and football, and that its restrictions, in fact, lower compensation.”

 

      And then at the second step, which is whether the restraints enjoy a procompetitive justification, the district court rejected the NCAA’s arguments that the restraints increased output and were necessary to competitive balance, which is a concept that had, of course, been in the Board of Regents case that I just mentioned.

 

      The court next assessed the NCAA’s arguments that its rules preserve amateurism, concluding that this was a vague concept that had not been very well defined by the NCAA, but in any event, lacked a direct connection to evidence to the consumer demand for college sports, at least with respect to those rules restricting education-related benefits as opposed to rules regarding payments that are unrelated to education.

 

      So the court accordingly concluded that the plaintiffs met their burden at what is called the third step of this type of analysis, the less restrictive alternative step, in the sense that the NCAA could eliminate the education-related restrictions while maintaining the non-education-related restrictions on normal payments. And then the court also upheld in a sort of sub-holding that if the NCAA wanted to allow academic award payments, then they must be at least as much as athletic award payments, which followed from the rest of its analysis.

 

      Both sides appealed that ruling. The players wanted broader relief. The NCAA didn’t like the relief that had been awarded against it. And a unanimous panel affirmed, and the panel was Chief Judge Thomas, Judge Gould, and Judge Milan Smith. And the court essentially held that the district court had significant factual and evidentiary record and had struck an appropriate balance in awarding relief.

 

      Interestingly, Judge Smith joined the panel opinion, but concurred to express his concern that there was a little wrinkle in the case that he didn’t think was quite appropriate. He thought it was improper to assess the procompetitive justifications in an antitrust market, which would be here in college sports a consumer facing market. In a market different than the one in which the challenger operates, which here would be the market for athlete services. But that issue was not addressed by the majority, although it is an issue that will arise again in the Supreme Court.

 

      Then the NCAA petitioned, and the court grated the writ of certiorari. Significantly, the players didn’t cross petition, so they did not renew their challenge to the compensation rules generally, and no real party briefed the American Express-type issue that Judge Smith highlighted in his concurrence.

 

      That brings us to the decision from just a few weeks ago. The Supreme Court unanimously affirmed the Ninth Circuit, 9-0, with a Justice Kavanaugh concurrence. And there are really two aspects to the opinion. The first concerns the NCAA’s argument that it should be subject to a deferential or quick look type review. And the second concerns the NCAA’s challenges to the district court’s rule of reason analysis overall.

 

      And so the Court first assessed the NCAA’s argument that its restrictions should be approved under an abbreviated deferential review or sometimes known as a quick look review. And the Court observed that while a quick look could be sufficient to absolve or condemn a restriction, such as in cases involving a joint venture or significant market share, or on the other hand when courts have considerable experience in validating a practice, the Court concluded that the NCAA did not qualify because it had monopsony power. It controls that market for college athlete labor in these sports.

 

      And because the rules here were not strictly speaking necessary for the sport to proceed, unlike, say, the rules of a college basketball game that the court is 94 feet, and baskets are 10 feet high, and there are 5 personal fouls. And so the Court next concluded that it was not in any way restricted in its conclusion by the Board of Regents case, that notwithstanding that language that I had read previously from Justice Stevens opinion that seemed to approve, in some sense, amateurism for college sports, that that was not binding on the Court in any way.

 

      And the Court observed that, well, that analysis occurred during a full rule of reason inquiry, and so it in no way justifies an abbreviated review subsequently. And in any event, it was dicta and has been overtaken by massive economic changes in college sports. And here, the Court highlighted increasing amounts of money that are paid to, say, college coaches and through television rights.

 

      And then, the Court finally rejected the NCAA’s suggestion, which is somewhat common in antitrust law and also almost as commonly rejected, that it should receive a pass because of the higher education backdrop and the importance of societal goals that higher education serves in our society. The Court refused to essentially grant a baseball style exemption from the antitrust laws and said that if that is to happen, that is something that Congress across the street should do and the Supreme Court should not be involved in.

 

      After rejecting those NCAA challenges for a so-called quick look, the Court next assessed the NCAA’s challenges to the district court’s full rule of reason analysis. And here, there were three particular arguments that the NCAA raised, and the Court rejected all of them. First, it rejected the NCAA’s argument that the Court improperly required it to prove that each rule is the least restrictive means of achieving the procompetitive purpose of amateurism. And while the Court observed at length that judicial micromanaging is inappropriate in an antitrust case, the plaintiff has a very demanding burden, it concluded that the NCAA simply hadn’t connected the amateurism concept to consumer demand for college sports for the non-education-related rules.

 

      The Court also rejected the argument that the NCAA had advanced, and I think that Professor Wright had talked about this in a previous panel on this topic, that the district court had improperly redefined the NCAA0 product. The NCAA already argued that it’s product is amateur sports. And the Court said, well, you can’t simply label a competitive restraint a product feature and then just get a free pass from the antitrust laws. And the Court also observed that the distinct view and the district court’s view that the NCAA had treated amateurism inconsistently as a factual matter and how it defined it in terms of how it viewed that concept.

 

      And finally, the Court rejected the NCAA’s argument that the remedy here micromanages business. And though it observed again that judges should not attempt to be central planners or set prices, it concluded that the district court hadn’t really done that with its injunction that was just narrowly limited to education-related benefits, especially because it allowed the NCAA to define what is education related, regulate how those benefits are, in fact, provided to student athletes. And it also did not in its injunction affect the athletic conferences.

 

      And the Court also rejected the NCAA’s parade of horribles regarding post-eligibility internships by boosters and academic awards and in-kind education benefits. The NCAA had raised the specter that perhaps there would be Lamborghinis handed out to particular college athletes. And the Court said, well, that doesn’t seem like the type of thing that the court’s injunction touched, and it seems like the NCAA is still sort of free to regulate in that regard.

 

      The Court essentially concluded that the NCAA was overreading the injunction. So the result is that the NCAA, all told, may not enforce its hard limits on education-related benefits but may continue to ban what might be called pure compensation.

 

      And that brings us to Justice Kavanaugh’s concurrence. He joined the opinion in full, but he issued a separate and some would say fiery concurrence that made quite a stir in the news. It’s one of the few Supreme Court opinions, I think, that has done so recently, especially as a concurrence.

 

      And just as Kavanaugh stated that the NCAA’s compensation rules, quote, “raise serious questions under the antitrust laws,” and so here he’s talking not about the education-related benefit rules that were struck down by the district court and affirmed ultimately by the Supreme Court, but the actual compensation rules themselves. And he emphasized that the Court had not passed on these rules in any way other than to establish that the rule of reason would apply to them.

 

      And then Justice Kavanaugh suggested that these rules may lack a valid procompetitive justification. And he sees it as circular, that the NCAA’s argument that it’s not college athletes because the defining feature of college sports is that the athletes aren’t paid is just a completely circular argument. And he used very strong and colorful rhetoric that in other industries, this kind of thing would be, quote, “flatly illegal.” And in sort of channeling his inner Chief Justice, he wrote, “Price fixing labor is price fixing labor,” unquote.

 

      He criticized the NCAA as well for not giving athletes, many of whom are African American and from lower income backgrounds, what he called their fair share. And though he predicted there would be thorny issues lurking in a compensational regime for the NCAA, such as how to comply with Title IX or the ideas regarding collective bargaining, he closed with a simple statement that the NCAA is not above the law.

 

      So that’s the opinion, and that brings me to a few reflections that I’d like to offer, and then open it up for questions. And so I’ve grouped these reflections into four broad categories, the implications for the players in the NCAA in this case, the implications for antitrust law, the implications for big tech antitrust enforcement, and general Supreme Court watching reflections.

 

      First, and this regards the players in the NCAA, it really cannot be overstated how significant this victory is for the players. In about a decade, they have not only significantly increased the amounts they may receive regarding college sports, but they also prevailed unanimously at the Supreme Court. They have achieved widespread support in the court of public opinion, ranging from the former head of the Antitrust Division to state legislatures across the country.

 

      That said, in second, the opinion portends more litigation, and I think that’s true in at least two respects. First, the players in the NCAA and the conferences undoubtedly will clash on the definition of education-related benefit. That’s something that’s up to the NCAA to define, but it looks like there will be further litigation on that.

 

      Perhaps more significantly, though, the Court’s opinion, and especially Justice Kavanaugh’s concurrence, essentially sends up the Bat Signal for a future challenge to the Court for compensation rules. And in particular, the Court’s reasoning suggests the next one could only sort of cope with the education-related definition or the connection between non-education-related compensation and consumer demand, which, as the Court took pains to point out in this case, involves facts that change over time.

 

      Third, with respect to the players in the NCAA, this litigation has been Solomonic as a matter of first principles. And the litigation could result in a scheme where athletes can receive education-related benefits involving graduate and vocational education, paid internships after their college career and other in-kind transfers amounting to significant amounts but cannot receive small cash sums. That’s an odd result.

 

      It’s also a case that has resulted in a court ordering a price for academic awards, which, as Professor Wright pointed out a few months ago, is something that makes the average antitrust lawyer’s head spin. It’s hard to believe that enforcing the antitrust laws will come to rest at this outcome in this space, or just to sort of put it in terms used at the oral argument, I don’t think we’ve reached the antitrust endgame, as some of the justices turned the phrase. That’s the implications, I think, or at least my reflections of the implications for players in the NCAA.

 

      I have a few thoughts as well on the implications for antitrust law. Although this case is of interest to the general public for a variety of reasons, there are quite a few interesting antitrust elements as well. The first, I think, concerns the quick look doctrine, and we talked about that a bit before. The quick look doctrine is generally a controversial practice by which courts condemn restrictions, often horizontal restrictions like those in the 1-800 Contacts case where the Second Circuit reversed the FTC a few weeks ago. And it does, of course, condemn those practices without a full rule of reason analysis on the theory that some restraints are clearly anticompetitive.

 

      Here, the NCAA argued for a quick look or abbreviated deferential review to approve its restrictions, not to reject them, but to approve them. The players and the government vociferously objected, arguing, I believe correctly, that the Court had never approved a practice using quick look before. But here, the Court sided with the NCAA, emphasizing that a quick look is sufficient for approval or condemnation of a practice. And then it enumerated the types of practices that may survive or fail a quick look review. This idea that quick look could be used to approve a practice is a significant development in the rhetoric and language of the doctrine.

 

      Second, there’s much talk in the news and in Congress and elsewhere about the consumer welfare standard and traditional antitrust law principles. I think this opinion goes out of its way to cite landmark opinions by Judge Bork such as the Rothery Storage case and Judge Easterbrook such as the Polk Bros. case that are landmark or bedrock cases discussing the traditional antitrust principles.

 

      The Court also takes head on its own previous decision in Topco, which was criticized by Judge Bork when it suggested a joint venture with market share that the grocery stores in Topco, quote, “usually is incapable of impairing competition.” So this an opinion, at least as I see it right now, that cements the consumer welfare standard and traditional antitrust principles in American antitrust law.

 

      The third antitrust element I think worthy of reflection is somewhat similar. The Court describes here very defendant from the tests but then applies them in a plaintiff-friendly manner. So for example, Professor Wright a few months ago pointed out, correctly I believe, that the NCAA product design argument, that amateurism is a part of the product and thus of protection, would be more at home in a Section 2 monopolization case than a Section 1 case.

 

      But the Supreme Court’s opinion doesn’t mention that section, instead accepting the NCAA’s premise that Section 1 agreements may include, quote, “efforts aimed at introducing new products into the marketplace.” So it has accepted the NCAA’s premise, the legal argument, but rejected it in a particular case.

 

      And finally, with respect to antitrust, there’s a lurking American Express-type issue. American Express, of course, the Supreme Court decision that held that courts often must consider both sides of a two-sided transaction market when defining the relevant antitrust market. And the decision has spawned much discussion in the bench, the government, and the bar about two-sided markets.

 

      Here, Justice Gorsuch hints at a similar issue, the issue raised by Judge Smith in his concurrence in the Ninth Circuit, whether it’s appropriate to consider benefits in the consumer-facing side of the market, the college sports market, to justify restraints on the labor side, the athlete services market. And Justice Gorsuch correctly points out the issue’s not property teed up, so expect that to be an issue litigated in future cases.

 

      A third set of reflections concern what one might call the issue of the day, antitrust enforcement in the text phase. It’s hard in some sense not to view every antitrust development through this lens, given how much it permeates the news cycle. And I’ll offer just two very brief reflections.

 

      The first concerns product design and is related to what I said a moment ago. Companies defending Section 2 monopoly suits often rely on product design tech defenses because they’ve been successful. Courts are generally deferential in this area, and the Court’s language in this opinion did play a role in those defenses.

 

      Second and more generally, the Court’s approach in this case is to generally accept the NCAA’s legal arguments and then rule against it on the record. That means there’s significant language in the opinion that defendants can use in future cases, including in tech enforcement cases.

 

      The fourth and final set of reflections concern the Supreme Court more generally, and I have three thoughts here, putting on my Supreme Court law clerk hat for a moment. The first is that this opinion is a unanimous opinion, and that indicates a broad degree of consensus on the Court. Sometimes, unanimous opinions gloss over significant disputes, and there’s likely some element of that here. But that the Court could unite on a high-profile case involving a high-profile area of law, at least right now, is contrary to what one might read in the popular press about the Supreme Court.

 

      Second, I think Justice Kavanaugh’s concurrence is worthy of a very careful read. Sometimes, a justice will write a concurrence to try and shape the interpretation of an opinion in a way that the majority would not attempt. Sometimes, a justice writes a concurrence to express a different decision-making rationale. But I don’t read this concurrence in either of those ways. Instead, in mind of Justice Kavanaugh’s position on the Court and his judicial philosophy, I read it as a sign of extreme judicial concern with the NCAA’s practices. And this is not a welcome development for the NCAA, which, until about 6 years ago, did not have much to fear from the judiciary in terms of significant reform.

 

      Finally, I would like to echo a reflection that I offered in discussing the Apple v. Pepper decision several years ago. In a speech while I was working in the antitrust division, I praised Justice Kavanaugh’s application of ordinary judicial methodologies to that case, though I will say that my remarks were interpreted and reported as if I were criticizing the decision, which was not right.

 

      I thought and still think that antitrust laws should be subject to the same judicial methodologies, textualism and the like, as other areas of law because that supports the rule of law. And I see the same type of analysis in this opinion from both Justice Gorsuch and Justice Kavanaugh, and the Court overall. They’ve applied the law to the facts in a way that is clear, supported by precedent, and supports the rule of law, even though it supports the plaintiffs in an antitrust case, which is contrary to what caricatures of the current Supreme Court would have you believe would be the result.

 

      In conclusion and in summary, I’ve given a few reflections on this case from the perspective of the disputed area in antitrust law, big tech antitrust enforcement, and the Supreme Court itself. And I’d like to conclude by saying I think this is an important case that deserves careful reading and study, and I think it will be an important opinion in the development of antitrust law.

 

      I believe it’s time for any questions that have accrued in the queue. Thank you for having me.

 

Nick Marr:  Great. Thanks very much for that great discussion, great coverage. We do have one question. We have a question that says, “Should athletes now pay federal and state taxes on the value of their scholarships?”

 

Michael Murray:  That’s an interesting question. I am not a tax lawyer, so I unfortunately don’t know the answer to that off the top of my head. But I will say that this opinion -- and I think Justice Kavanaugh highlighted this issue in his concurrence. There are a lot of unresolved questions, legal issues, and just general policy issues if the NCAA shifts to a more market-based compensation regime. He highlighted a few in his concurrence involving how Title IX would shake out, how other issues would shake out. I think this tax issue could be one. While I’m not a tax lawyer, I think it could be one that is related as well.

 

      And then he highlighted something that I think is also worth thinking about, which is if this area of the world moves to a market-based system of compensation, will something like collective bargaining emerge like what we have in the NBA or the NFL? And in those areas, we have compensation systems that are designed around those types of laws, those labor laws.

 

      And the dispute is always between -- not always, but often between management and labor about what share of revenues the players should receive, and then there are complicated questions related to that regarding, well, what is the denominator, what’s the numerator? And then there are what you might call distribution questions. How does the share that the players receive accrue to folks who are at different stages of their careers, the stars, the journeymen, the newer players?

 

      And you could imagine similar issues applying to any collective bargaining in this context. In fact, Justice Gorsuch’s opinion highlights a very interesting episode that I was previously unaware of at the University of Pittsburgh in 1939, I believe, where a freshman on the football team walked off on the theory that the upper class were being paid too much and they were sharing in the benefits. And so one could imagine that type of dynamic again occurring where you have a disparity, perceived or real, among different types of compensation for different sports, or within particular sports, or depending on class year, depending on conferences. And then that opens a whole host of issues, including the taxation issue raised by the questioner.

 

      Of course, the fundamental premise of the antitrust laws, though, is that competition, in most marketplaces, is the national policy of the United States, and that will actually produce the better outcomes from a policy perspective. And so that’s the tradeoff. Sometimes, competition can create subsidiary issues, as Justice Kavanaugh highlighted in his concurrence and as the question mentions as well.

 

Nick Marr:  Great. The floor is wide open for questions. Please submit them via chat if you have them. And we’ve got one. It comes through the Q&A chat. “Given the tilt of this decision and pending antitrust litigation, does it make sense for the NCAA to go to a market-based system of compensation right now where it can get some initial and unitary parameters for future collective bargaining?” That’s something you just brought up. I don't know if you want to add anything to that.

 

Michael Murray:  Yeah, that’s a fascinating question. I think that -- and I saw the reaction from the NCAA to the decision. They said it was frustrating and, I think, deeply disappointing, or maybe just disappointing, which is an understandable reaction from them. I imagine they’re circling up right now to think about their strategy and what they want to do going forward.

 

      I know right now, they’ve had a lot of proposals on the table regarding the name, image, and likeness issue, and they were progressing through their internal processes for decision making, which are more complex than might be obvious to the naked eye. There’s quite a few working groups, committees, bureaucratic structures for an organization that’s like the NCAA. And so those have been working through, and that was the genesis of my former boss’s letter to them about six or seven months ago now regarding some of their proposed reforms.

 

      So I imagine there’s quite an institutional focus right now thinking about those reforms, the name, image, and likeness reforms, especially in light of the state legislation that is starting to go into effect. I believe some of it goes into effect tomorrow, if I’m remembering correctly. And so I imagine that they’re focused on that, but if I were them, I would be thinking along those lines. Is it better to get out ahead of this issue and try to create a scheme that makes sense and will satisfy antitrust review, or is it better to continue to litigate and hope to prevail on the pure compensation issue that Justice Kavanaugh focused on in his concurrence? And I think the legal strategy could differ depending on what the organization wants to do and depending on the constituencies.

 

      Remember, of course, the NCAA is not a -- we can think of it as a coherent organization, and it is, but it’s also composed of many member institutions, not all of whom have similar issues and interests. We think of Division 1 football, Division 1 men’s and women’s basketball. We might think of UConn or Duke in the basketball for women’s and men’s, and for football, we think of, say, SEC football or Notre Dame football. I know Nick is a Notre Dame alum, so I’m sure that’s what he thinks of.

 

      But in fact, Division 1, even football and men’s and women’s basketball, is actually a pretty varied group of institutions that play, ranging from small liberal arts colleges in the Northeast to gigantic state universities in the Southwest, but very different structures of their institutions, very different levels of competitiveness when they’re playing other schools. And so coming up with one policy that will satisfy all of those institutions is not as easy as it might seem, and then I could imagine it would take some time.

 

      All that is to say that I think the questioner presumed or assumed that there will be changes in the future, and I think that’s a pretty fair assumption, whether they come by judicial reform or whether they come from the NCAA’s own initiative to try to get out ahead of things as well. I think we’ll see some changes in the future.

 

Nick Marr:  Very good. Well, the floor is open for questions. If you have them, please submit them via the chat or the Q&A chat. I have a question, and it’s just a general question that I like to ask for all the Supreme Court decisions. Was there anything particularly surprising? This was a 9-0 decision. Was there anything surprising to you, especially as compared to oral argument?

 

Michael Murray:  I was surprised that it was 9-0, frankly. There a many unanimous decisions at the Supreme Court. Statisticians would be able to tell you the exact number, but it’s much more than is widely understood. But this is a controversial area of law, and I would be very surprised if all nine justices agreed on the scope and direction of antitrust law.

 

      And this is also a very high profile issue, college sports. It was argued by the Acting Solicitor General, which indicates how high profile the issue was. And so it surprised me that it was 9-0. I didn’t think it would be 5-4, but had thought maybe 7-2, or 8-1, or something like that. And so that was surprising to me.

 

      From the oral argument, I think that you could see the justices really struggling in the oral argument with a lot of the issues in the case. There were some complex antitrust issues. What do we mean by defining a product? How do we think about that? How does the three-step balancing test actually work? That’s sort of difficult.

 

      And then you saw the traditional arguments from counsel, very able counsel on both sides here, Jeff Kessler and Seth Waxman, who argued for a parade of horribles from Seth Waxman’s side, and that there was no parade of horribles from Jeff Kessler’s side. And I think both of them did an effective job with working with what they had from an argument perspective. And so it was surprising in some sense that the Court didn’t go into detail on more of those, but it did address them. And so I don't think anyone can say that the Court wasn’t grappling with the issues very well.

 

      So I guess at bottom, the only thing that really surprised me was that it was completely unanimous. I think that even the degree of consensus in the legal community, it’s not surprising that the result went the way it went. But it’s hard to get nine justices to agree on a 35-page opinion dealing with the scope of antitrust law. So that’s a credit to Justice Gorsuch and the Court to be able to come up with something that not only got nine votes but likely stand the test of time and be in casebooks in the future for law students, especially in antitrust courses.

 

Nick Marr:  Well, great. We don’t have any questions in the queue right now or on the floor. I don’t have additional ones. So Michael, maybe if you have any closing remarks or anything you forgot to get to that you’d like to get to before we close out this afternoon?

 

Michael Murray:  I think we covered everything that I intended to cover. I will close, I guess, by saying that it’s a fascinating opinion. I think that it’s got a little bit of something in there for everyone. We have history of college sports in the beginning for those who are reading the opinion primarily because it involves college sports. We have quite significant antitrust discussion for those who are reading it as an antitrust lawyer. And then we have some interesting Supreme Court dynamics as well for those who are primarily Supreme Court case watchers and like to count votes and count noses and think about where the alliances are.

 

      And then we also have, I guess in a way, the Justice Kavanaugh concurrence as an example of an opinion, a concurrence, in some sense that can dominate coverage of a decision. And some of his lines were particularly well written and quotable, which  is what you would expect from someone of his caliber, and it was a pleasure to read. So I would encourage all those who have not read the opinion yet to at least give it a look over.

 

      And if you are not an antitrust lawyer, feel free to skip some of the in-depth antitrust analysis and enjoy it for the history of college sports and for the Justice Kavanaugh concurrence and some of the rhetoric and turns of phrase that he uses in that opinion.

 

Nick Marr:  Great. Well, I think we’ll close out a bit early this afternoon. Thank you very much, Mr. Murray, for the benefit of your time and expertise this afternoon. Thanks for joining us. Thanks for taking the questions. To our audience, for your great questions. Of course, we welcome your feedback on this program and others. You can email us at info@fedsoc.org.

 

      Also, check your emails and our website for announcements about upcoming Zoom events like this one and registration information, especially as the term winds down. We’re covering all of these cases at the end of the term, so check our website for those. But until that next event, thank you all for joining us today. We are adjourned.

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s Practice Groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.