Breaking down reason conservative, liberal judges consistently rule against NCAA

There are few things that United States Supreme Court justices Brett Kavanaugh and Sonya Sotomayor agree on. There is one thing, though: That the NCAA and its rules around preserving amateurism don’t comport with various U.S. laws, as evidenced by a 9-0 decision against the NCAA in the 2021 Alston ruling.

Unlike many things in American life right now, the NCAA has managed to carve out a path of bipartisanship — especially for those sitting on the federal bench, as they continue to rule against the association. And as the legal waters have hit a boiling point around the NCAA, On3’s Andy Staples and Sportico legal expert Michael McCann dove into why there aren’t many sitting judges agreeing with the NCAA.

“I think they thought — I mean, what does conservative mean in this context?” McCann said. “I think the NCAA thought conservative means ‘keep things the way they are.’ Just kind of romanticize college sports, kind of describe it as from 1945 or whatever, some sort of — the old days of the regatta and this sort of romanticizing of college football. The justices, at least in this context, are really libertarian. Like you just said, they find these rules so constraining.”

In the Alston case, the U.S. Supreme Court ruled 9-0 in favor of the plaintiffs (Alston) in a decision that stopped the NCAA from barring payouts to athletes from schools for academic performance. The payouts in those instances are usually some thousands of dollars, with a cap just under $6000.

And in delivering that opinion, two of the more conservative justices on the court scalded the NCAA, with Neil Gorsuch writing for the 9-0 majority and Kavanaugh tacking on a concurrent opinion that ended with the now infamous “The NCAA is not above the law” line.

“I had spent all this time talking to athletic directors and people in the business, they thought the conservative folks were going to be the ones on their side. And I always asked them, ‘You do realize you’re trying to keep markets closed?’ Like, they don’t like that,” Staples said.

McCann recalled that even the oral arguments in that case were not looking good for the NCAA. The most friendly justice to their case, he recalled, was the now-retired justice Stephen Breyer — he was replaced on the court by Ketanji Brown-Jackson. And even Breyer’s somewhat more open mind to the NCAA still didn’t sway him to vote in their favor.

“Justice [Samuel] Alito, I remember the oral argument, where he said, it looks — he was paraphrasing someone else — but, ‘Looks like you take the athlete, you use them up, they get hurt, then you cast them away.’ And I was like, once he said that — and justice [Clarence] Thomas saying ‘Why don’t you cap college coaches contracts?'” McCann said. “That would be illegal, but you can see where his mind is at. And the one justice who was actually sympathetic, I actually thought would’ve voted for the NCAA, I didn’t expect 9-0, was justice Breyer who, fairly progressive and he was actually, he was the one saying, ‘I’m worried about the court getting in here to change rules.’ If you’ve got one vote, at most, that’s really tough.”

The NCAA’s seeming inability to win in court these days doesn’t bode well as a number of lawsuits — via the states or individual parties — and National Labor Relations Board (NLRB) proceedings continue to squeeze amateurism out of existence.

And McCann just isn’t who on the bench is buying what the NCAA is selling.

“The big thing, if I were the NCAA, I would be worried about: It’s not as if it’s sort of liberal judges are against you, conservative judges are with you, or vice versa. They’re all against you. This is — I don’t know who the audience is any more,” McCann said. “There are so many things in law you can kind of, you can predict. ‘That’s a conservative judge, that’s a liberal judge.’ Not anymore with this stuff. This is just, they’re all ganging up.”