NCAA v. Alston: A Unanimous Court Removes Amateurism's Shield

National Collegiate Athletic Association v. Alston, 594 U.S. 69 (2021), No. 20-512, decided June 21, 2021, is technically a narrow antitrust decision about whether the NCAA may cap education-related benefits such as tutoring, study-abroad costs, paid internships, and laptops. Its actual importance is far larger. A unanimous Supreme Court affirmed that NCAA compensation rules enjoy no special antitrust dispensation, and Justice Brett Kavanaugh’s solo concurrence delivered a warning so pointed that, within days, the NCAA suspended its remaining restrictions on name, image, and likeness compensation. Alston did not decide the NIL question. It made the NIL question impossible for the NCAA to keep avoiding.

At a glance

• Case: NCAA v. Alston, 594 U.S. 69 (2021), No. 20-512 (consolidated with American Athletic Conference v. Alston)
• Decided: June 21, 2021; opinion by Justice Neil Gorsuch for a unanimous Court (9-0); concurrence by Justice Brett Kavanaugh
• Court below: U.S. Court of Appeals for the Ninth Circuit, affirming Judge Claudia Wilken (N.D. Cal.)
• Holding: The NCAA’s rules limiting education-related benefits are subject to ordinary rule-of-reason scrutiny and, on this record, constitute an unlawful restraint of trade
• Posture: The athletes did not cross-appeal the district court’s refusal to enjoin limits on non-education-related pay, so only the education-related benefit caps were before the Court

What was actually at issue

Alston grew directly out of O’Bannon. After the Ninth Circuit’s 2015 ruling drew the line at benefits “tethered to education,” a new class of Division I football and basketball players returned to Judge Wilken’s courtroom to test how far that tether reached. Following another bench trial, the district court issued an injunction with a careful split: it left intact NCAA rules capping benefits unrelated to education (preserving the line against pay-for-play), but it struck down rules limiting benefits that are related to education — things like postgraduate scholarships, science equipment, musical instruments, tutoring, and paid internships.

Crucially, the athletes did not appeal the part of the order that preserved limits on non-education pay. So when the case reached the Supreme Court, the only question was whether the NCAA could continue to cap education-related benefits. That procedural framing kept the holding modest. The reasoning did not.

Gorsuch’s opinion: no antitrust exemption, just antitrust law

The NCAA’s lead argument was the same one it had pressed for decades: that its amateurism rules deserve extraordinary deference, even something approaching immunity, because of the dictum in NCAA v. Board of Regents (1984) praising amateurism as essential to college sports. Justice Gorsuch dismantled the argument methodically. Board of Regents, he wrote, concerned television broadcast restraints, not compensation rules, and its language about amateurism was not a holding that conferred antitrust immunity. The NCAA “is not above the law,” and its rules — like those of any joint venture among competitors — must be judged by the rule of reason.

The Court then declined the NCAA’s plea for an abbreviated, deferential review. Because the NCAA and its members enjoy “near complete dominance” of the relevant market and exercise monopsony power over athletes’ labor, a full rule-of-reason analysis was appropriate. The district court had found a substantial anticompetitive effect, credited the NCAA’s procompetitive interest in distinguishing college from professional sports, and identified less restrictive alternatives — chiefly, allowing the challenged education-related benefits. The Supreme Court found no error in that careful, fact-bound work. It also rejected the NCAA’s complaint that the injunction would mire it in “judicial micromanagement,” noting the decree left the NCAA free to define what counts as education-related and to regulate accordingly.

The concurrence that changed the sport

Justice Kavanaugh joined the opinion in full but wrote separately to say what the majority pointedly did not. The decision before the Court, he acknowledged, addressed only education-related benefits. “But this case,” he continued, “involves only a subset of the NCAA’s compensation rules — namely, the rules restricting the education-related benefits that student-athletes may receive… The Court does not address the legality of the NCAA’s remaining compensation rules.”

Then came the line that reverberated through every athletic department in the country: “Nowhere else in America can businesses get away with agreeing not to pay their workers a fair market rate on the theory that their product is defined by not paying their workers a fair market rate.” He continued that the NCAA’s business model “would be flatly illegal in almost any other industry in America,” and that its remaining limits on athlete compensation “raise serious questions under the antitrust laws.”

Kavanaugh’s concurrence is not binding. But its signal was unmistakable: a future challenge to the broader compensation rules — including blanket NIL bans — would face a Court already deeply skeptical. The NCAA read the message. On July 1, 2021, ten days after the decision, it adopted an interim policy permitting athletes to profit from their name, image, and likeness, ending its long prohibition without waiting to lose another lawsuit.

Open questions

Alston answered the education-benefits question and left the central one untouched: are direct limits on athlete pay — including caps on NIL-related compensation or revenue sharing — lawful under the Sherman Act? The opinion’s logic points strongly toward “no,” but the Court expressly reserved it. The decision also did not resolve whether athletes are employees, whether collective bargaining could immunize compensation rules under the labor exemption, or how a patchwork of state NIL statutes interacts with federal antitrust principles. Those gaps set the agenda for Johnson v. NCAA and the House settlement.

Implications

• The deference era is over. Courts now apply ordinary rule-of-reason scrutiny to NCAA compensation rules; Board of Regents is no longer a shield.
• The concurrence did the heavy lifting. Kavanaugh’s separate opinion, though not law, functioned as a roadmap that accelerated the NCAA’s voluntary surrender on NIL.
• Monopsony framing matters. By emphasizing the NCAA’s buyer-side market power over athlete labor, the Court invited scrutiny of every restraint on what athletes can earn.
• Voluntary change preempts litigation. Facing near-certain defeat on the broader rules, the NCAA changed its NIL policy rather than test the question in court.

Frequently asked questions

Did Alston legalize NIL deals? Not directly. The holding addressed only education-related benefits. But the opinion’s reasoning and Justice Kavanaugh’s concurrence made the NCAA’s broader compensation bans look indefensible, prompting the NCAA to adopt an interim NIL policy ten days later.

Was the decision unanimous? Yes, 9-0, with Justice Gorsuch writing for the Court and Justice Kavanaugh adding a concurrence. The unanimity underscored how weak the NCAA’s claim to special treatment had become.

Why didn’t the Court rule on pay-for-play? Because the athletes never appealed the part of the injunction that preserved limits on non-education compensation. That issue was simply not before the Court, which is why the holding is narrow even though its language is sweeping.

Authorities and sources

• NCAA v. Alston, 594 U.S. 69 (2021), No. 20-512 (June 21, 2021). Decision and concurrence via Justia and Cornell LII.
• Holding and rule-of-reason analysis: Harvard Law Review.
• Practitioner summary of the decision and Kavanaugh concurrence: Jones Day.
• Background and the post-decision NIL policy shift: Congressional Research Service.