the BigAmateurism monologues

On June 24th, 2021, just three days after the U.S. Supreme Court’s historic ruling in Alston, federal district court judge Claudia Wilken issued an opinion denying the NCAA’s motion to dismiss a new class-action antitrust lawsuit filed by athletes renewing challenges to the NCAA’s amateurism-based compensation limits on name, image, and likeness. Wilken, who presided over O’Bannon and Alston, adopted a market definition in the rule of reason antitrust analysis that may be more deferential to athletes’ market interests than was the case in prior antitrust cases, which focused primarily on what is best for consumers. This theory was inspired by 9th Circuit Judge Milan Smith’s concurring opinion in Alston. Smith reasoned that subordinating athletes’ interests as laborers to consumers’ interests and preferences undermined the very purpose of antitrust laws and left athletes subject to the whims of consumers. At oral argument on Alston in the U.S. Supreme Court, Justice Barrett raised this “cross-market” issue. In its’ Alston opinion, the Supreme Court suggested this new market framing might be appropriate but declined to analyze or apply it since the parties did not raise the issue. Moreover, in House, the athletes seek substantial money damages in addition to injunctive relief. Under federal antitrust laws, any award of damages is automatically tripled. How will the NCAA respond to this new threat?