“It just strikes me as odd that the coaches’ salaries have ballooned and they’re in the amateur ranks, as are the players,” Justice Clarence Thomas, a longtime college football fan, told Seth Waxman, a lawyer who argued on behalf of the NCAA. “So the argument is they are recruited, they’re used up, and then they’re cast aside without even a college degree,” Justice Samuel Alito later added, sympathetically paraphrasing the athletes’ arguments. “So, they say, how can this be defended in the name of amateurism?”
“Mr. Waxman, the way you talk about amateurism, it sounds awfully high-minded,” Justice Elena Kagan said at one point during the oral arguments. “But there’s another way to think about what’s going on here, and that’s that schools that are naturally competitors as to athletes have all gotten together in an organization, an organization that has undisputed market power, and they use that power to fix athletic salaries at extremely low levels, far lower than what the market would set if it were allowed to operate.”
Justice Neil Gorsuch ultimately wrote a unanimous opinion for the court that rejected the NCAA’s calls for special treatment, upholding the Ninth Circuit ruling in full. An even more ominous sign came in a concurring opinion by Justice Brett Kavanaugh, in which the court’s median justice signaled that he would be open to hearing even broader challenges to the NCAA’s anticompetitive rules.