the BigAmateurism monologues

One year ago, the US Supreme Court issued what many view as a landmark decision in NCAA v Alston. The Supreme Court held unanimously that the NCAA was not entitled to antitrust immunity. For nearly forty years post-Board of Regents, the NCAA has successfully used off-hand language from that case as a shield from liability in lawsuits challenging the NCAA’s amateurism-based compensation limits or its regulatory authority. In short, the Supreme Court held that the NCAA was not above the law. In Johnson v NCAA, athletes allege they are employees under the Fair Labor Standards. The NCAA counters that it is entitled to a similar amateurism-based immunity created out of whole cloth by the 7th Circuit in Berger v NCAA. It treats Alston as either irrelevant to the FLSA issues or supportive of its amateurism-based immunity arguments. The NCAA’s briefing in Johnson makes one wonder whether Alston has any meaning at all. This episode analyzes the NCAA’s use of Alston and the state of amateurism in 2022.