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Supreme Court Justice Clarence Thomas Speaks During NCAA Hearing

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This article contains commentary which reflects the author’s opinion

It is a rare occasion for Supreme Court Justice Clarence Thomas, who is normally silent during hearings, to speak his mind.

That is why when he does you know it must be something that the 72-year-old Justices has a strong opinion on.

That was the case on Tuesday when he, and other Supreme Court Justices spoke and appeared to be leaning towards siding with players in a case against the NCAA for compensation, CNBC reported.

Division I student-athletes looked poised for victory in their Supreme Court battle against the National Collegiate Athletic Association over whether the organization may impose restraints on compensation related to education.

During 90 minutes of arguments held by phone Wednesday, the justices appeared skeptical of the claim made by the NCAA that payments to students for things like musical instruments and internships will sour fans who are drawn to the amateur quality of its competitions.

The case is the latest legal challenge over the NCAA’s compensation policies and comes amid a high-profile and related push by student-athletes seeking to profit off their own names, images and likenesses. The NCAA’s March Madness basketball tournament will hold its championships for women and men on Sunday and Monday.

Justices appointed by both Republicans and Democrats seemed persuaded by arguments made by the attorney for the student-athletes, Jeffrey Kessler, that the NCAA was violating federal antitrust law with its restrictions on education-related payments.

“It strikes me as odd that the coaches’ salaries have ballooned and they are in the amateur ranks, as are the players,” the conservative Justice Thomas said.

But he was not the only conservative Justice to appear to be siding with the players, as Justice Brett Kavanaugh appeared to be on the players’ side.

“It does seem … that schools are conspiring with competitors to pay no salaries to the workers who are making the schools billions of dollars on the theory that consumers want the schools to pay their workers nothing,” he said. “That seems entirely circular and even somewhat disturbing.”

But it was not only the conservative justices who appeared to be siding against the NCAA in favor of the players.

“These are competitors all getting together with total market power fixing prices,” liberal Justice Elena Kagan said to the NCAA’s attorney and a former U.S. solicitor general Seth Waxman.

Democrat-appointed Justice Sonia Sotomayor expressed concern that ruling in favor of the plaintiff could mean the end of college sports.

“How do we know that we’re not just destroying the game as it exists?” she said.

The case was brought by attorneys for former West Virginia University running back Shawne Alston who said that he and other student-athletes were exploited by the NCAA.

“Despite the massive revenues generated by these sports and the ever-growing demands on student-athletes,” the attorneys said in their brief for the Supreme Court. “The N.C.A.A.’s members continue to restrict the type and amount of compensation and benefits — including education-related benefits — that schools may offer in competing for recruits.”

U.S. District Judge Claudia Wilken sided with Alston last year, but the NCAA argued that the decision went too far, The Washington Post reported.

“We know what’s going to happen if, in fact, Alston is upheld,” Len Elmore, who was a Maryland basketball star and is now a as -chair of the Knight Commission on Intercollegiate Athletics, said. “It will open the door in some way, shape, or form to pay-for-play and some of the reforms that some people have been pushing for.”

The NCAA appealed but were defeated in the U.S. Court of Appeals for the Ninth Circuit, in San Francisco.

“Uncapping certain education-related benefits would preserve consumer demand for college athletics just as well as the challenged rules do,” Chief Judge Sidney R. Thomas said.

“Such benefits are easily distinguishable from professional salaries,” he said. “The record furnishes ample support,” and, “that the provision of education-related benefits has not and will not repel college sports fans.”

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