NCAA indicates Supreme Court ruling won't be the end of legal maneuvering in Alston case
NCAA President Mark Emmert and the association’s lawyers indicated that Monday’s Supreme Court ruling in the Alston antitrust case will not be the end of their legal maneuvering in the matter.
In an interview with USA TODAY Sports hours after Justice Neil M. Gorsuch’s opinion for a unanimous court, they said the association and its 11 major-conference co-defendants will return to U.S. District Judge Claudia Wilken for clarifications in the injunction that was affirmed on Monday.
Emmert also said that once those legal issues are resolved, he expects schools will begin providing additional education-related benefits to athletes.
In a separate, but related, matter, Emmert said that while Monday’s ruling will impact how the NCAA’s Division I schools proceed in their decision-making this week regarding rules surrounding athletes’ ability to make money from their name, image and likeness (NIL), it was too soon to know what that impact will be.
He reiterated his support for a set of proposed rules changes that have been in place since last November, calling them "very sensible," as members of the NCAA Division I Council are scheduled to meet on the issue Tuesday, Wednesday and June 28.
Because the ruling in the Alston case did not come until Monday, the Council will not vote on NIL rules proposals until June 28, a source familiar with the Council's deliberations said. The person spoke on the condition of anonymity because of the sensitivity of the topic.
There are eight states in which NIL laws will either take effect July 1 or could be put into place by schools at any time, and Emmert said the association's intent remains to make rules changes that also would go into effect on that date.
However, Emmert said the Council is being faced with a decision about whether to "make permanent changes right now ... or to temporarily change the rules while we work with Congress to see if there's the ability to create a single national standard."
The continuing legal moves in the Alston case will come from language in Wilken’s injunction, as well as Monday’s ruling.
On its face, Wilken’s injunction allows athletes playing Division I men’s or women’s basketball or Bowl Subdivision football to receive a variety of benefits from their schools “related to education.” They include computers, science equipment, musical instruments, scholarships to complete undergraduate or graduate degrees at any school and paid internships after athletes have completed their collegiate sports eligibility.
The injunction — and a subsequent clarification — also permits schools to provide cash or cash-equivalent awards based on academics or graduation.
Schools will not be required to provide these types of benefits, and conferences can impose prohibitions on certain benefits if their member schools so choose. However, conferences cannot act in concert. So, if a conference chooses to limit or prevent certain benefits, it risks giving a competitive advantage to other conferences.
However, the injunction also says the list of allowable benefits “may be amended, at any time, on motion (to Wilken) of any party.” The injunction also says “the NCAA may adopt, enact, or agree to, now or in the future, a definition of compensation and benefits that (are) ‘related to education’ for the purpose of complying with this injunction.” But it indicates that if the NCAA does that, it will have to ask Wilken to amend the injunction accordingly.
Gorsuch covered all of this in the high court’s opinion, using Wilken’s inclusion of those provisos as a reason to affirm the injunction against the NCAA’s arguments that these new benefits could be deployed by schools “as a way of circumventing limits on payments … for athletic performance.”
Gorsuch wrote that this kind of argument “rests on an overly broad reading of the injunction.”
“Before conjuring hypothetical concerns in this Court,” Gorsuch wrote, “we believe it best for the NCAA to present any practically important question it has to the district court first.”
Emmert and the NCAA’s lawyers indicated they plan to do just that.
“Under the injunction,” Emmert said, “there were still debates and discussions ongoing in front of Judge Wilken about some of the limitations on what those benefits could or couldn't be. And I anticipate that that debate about what the constraints are will continue until it's fully resolved.”
Added outside counsel Jeffrey Mishkin: "I think the Supreme Court was taking some pains to say that we expect the district judge to apply some common sense and do this reasonably, and the NCAA has a role here in either adopting new rules or arguing to the court what is or isn't a legitimate educational expense.”
But once all of this gets worked out, Emmert said: “I anticipate that many schools will do what’s allowable under this ruling. And that would be a sensible position for them to take.”
One of the plaintiffs' lead attorneys, Steve Berman, told USA TODAY Sports that he understands the NCAA potentially wanting to clarify matters with Wilken, as it is allowed to do under the injunction, but "they don't get to go back and get a do-over. They've lost. If anyone gets a do-over, it's us. … They don't know when to quit."
As for the NCAA’s ongoing debate about rules pertaining to athletes’ ability to have endorsement deals, making money from signing autographs and through social media, the Division I Council is scheduled to meet this week to discuss it further. One set of proposed changes that has been on the table since last November includes a number of restrictions, such as giving schools the latitude to prevent athletes from having deals that conflict with school contracts.
Those proposed rules changes conflict with various state laws, some of which will take effect July 1. On Sunday, ESPN reported that there is another rules proposal now being advanced that would include fewer restrictions.
Asked about the level of restrictions he thinks will be in a proposal that the Council approves, Emmert said: “That's what we're going to be debating. I think that the proposals that are on the table right now are very sensible ones. … Now, of course, understanding this ruling that just came down and in that context … we really haven't had a chance to think through all of that. But that's part of what we'll be determining over the course of the week."
Follow colleges reporter Steve Berkowitz on Twitter @ByBerkowitz