Editorial: How changes to the Supreme Court impact NCAA litigation

On Jan. 27, Justice Stephen Breyer announced he would retire from the U.S. Supreme Court, paving the way for President Joe Biden to appoint a new justice. 

Breyer’s retirement will have profound impacts in the arena of college sports litigation. In the past, Breyer has argued for the preservation of college sports and fought against changes in how they operate. His retirement means the NCAA has lost its most vocal supporter in the nation's highest court. 

In NCAA v. Alston, argued last March, Breyer thought the Court was forcing unjust changes in college sports.

The case revolved around the potential violation of antitrust laws by the NCAA as the organization attempted to limit how much universities could compensate athletes for academic-related expenses.

Justice John Stevens wrote that the NCAA should be owed “ample latitude” in determining the boundaries of amateurism for college athletes in an earlier court decision. He said college sports differ from other businesses and should be applied to different standards in how antitrust laws apply. Breyer agreed.

“The reason [the Alston case] is so tough,” Breyer said, “is ... this is not an ordinary product. This is an effort to bring into the world something that’s brought joy and all kinds of things to—to millions and millions of people, and it’s only partly economic.

“So I worry a lot about judges getting into the business of deciding how amateur sports should be run. And I can think of ways around that ... You could just say it’s a different kind of product.”

Breyer eventually ruled in favor of Alston, alongside his fellow members on the bench.

It's unclear how the framing of this case impacted Breyer's final decision, and more progressive solutions to college sports operations could have potentially changed this case's unanimous outcome. Breyer's support of the NCAA — especially when it comes to compensation limits for athletes — was made clear during oral arguments.

A new justice would be a part of several college sports cases that could surface before the Supreme Court in the near future. For example, Johnson vs. NCAA was a case that discusses whether student-athletes should be categorized as employees under the Fair Labor Standards Act.

The case is currently in the U.S. Court of Appeals for the Third Circuit — directly below the Supreme Court. It's likely that wins for athletes here could pave the way for litigation in the nation's highest court.

The absence of a strong pro-NCAA judge would prove huge for athletes, who in a time of introductory NIL legislation could benefit from the Supreme Court’s current lean. 

For UNC athletes, we have seen this development unfold with the introduction of college athlete endorsement deals. From Armando Bacot and Jimmy’s Seafood to Sam Howell and Bojangles, athletes have begun profiting off their brands. 

Just this past week, UNC athletic supporters announced a NIL collective named Heels4Life, created to bring together UNC football players, fans and businesses.

The initiative, created by former UNC linebacker Shakeel Rashad, aims to bridge the gap between college athletes and NIL agreements. 

Currently, the UNC athletic department does not negotiate on its athletes' behalf, nor does it promote any NIL agreements. It has been up to the athletes to promote their own deals, usually done via social media. 

Heels4Life plans to enable businesses to approach players with deals that had previously not been allowed.

“Companies like Heels4Life … work with the UNC athletes to facilitate connections with business and organizations which are eager to work with our athletes," UNC football coach Mack Brown said in an InsideCarolina interview. "Our athletes have had tremendous success with these organizations and we look forward to many more engagements with our athletes.”

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