How Breyer’s Retirement Affects College Athlete Rights at the Supreme Court

Coby Rabushka

On January 26, Stephen Breyer announced he would be retiring from the Supreme Court. As with the passing or retirement of any Supreme Court Justice, hiding just behind the congratulatory and farewell remarks stand interested parties racing to determine how this development affects their legal aims. One party sure to be acutely aware of the consequences of Breyer’s retirement is the National College Athletics Association (the NCAA). During oral arguments for the watershed case of NCAA v. Alston last March, Breyer identified himself as an NCAA traditionalist, seeing college sports as markedly distinct from professional sports, both legally and in spirit.[1] Though the NCAA ultimately lost the case, and Breyer did join the rest of the Court in ruling against the NCAA, his comments at oral arguments nevertheless left college athlete advocates fretted about the position Breyer may take on future cases that looked to extend college athlete rights beyond the holding of Alston.[2] But with his retirement, the NCAA is now the party to be worried given Breyer’s replacement is likely to be more in line with the rest of the Court’s view toward college athletics.

Alston concerned whether the Sherman Act prohibits the NCAA from limiting how much colleges can compensate their athletes for academic-related costs. In their argument, the NCAA leaned heavily on NCAA v. Board of Regents, where the Court declared the NCAA deserves “ample latitude” to preserve the tradition of amateurism in college sports.[3] While not entirely dispelling with this proposition, the Court recognized in Alston that “these remarks do not suggest that courts must reflexively reject all challenges to the NCAA’s compensation restrictions.”[4] Met with a district court injunction enjoining the NCAA from limiting education-related benefits that schools could provide, the Supreme Court affirmed. Justice Gorsuch authored the unanimous opinion, holding the district court injunction “does not float on a sea of doubt but stands on firm ground – an exhaustive factual record, a thoughtful legal analysis consistent with established antitrust principles, and a healthy dose of judicial humility.”[5]

Despite the confidence Gorsuch instills in his opinion, Breyer’s comments at oral arguments suggest the dose of judicial humility may be a bit weak for him. Given the popularity and uniqueness involved in college sports, Breyer explained, “I worry a lot about judges getting into the business of deciding how amateur sports should be run.”[6] This is what made it a “tough case” for Breyer.[7] However, because of the narrowness of Alston, that is, enjoining only the prohibition of education-related benefits, Breyer signed on with the rest of the court. But of course, this is not the end of the story for the NCAA at the Supreme Court nor its athletes who continue to fight for more rights. Indeed, Gorsuch recognized this, explaining “[s]ome will think the district court did not go far enough.”[8] Thus, future cases in this area are sure to come before the Supreme Court soon. One of which may be Johnson v. NCAA, which asks whether college athletes are employees under the Fair Labor Standards Act.[9] If the Third Circuit rules in favor of the plaintiffs, there would be a split amongst the federal circuits, likely forcing the Supreme Court’s hand at answering this question. Given Breyer’s traditionalist view toward college athletics, it is clear the NCAA wishes he remained on the bench for this decision. Of course, it is not guaranteed the newly appointed justice will differ from Breyer’s view, but given the trend of the rest of the Court on this issue, underscored by Justice Kavanaugh’s heated concurrence in Alston, Breyer’s view was certainly an outlier for the Court.


[1] Michael McCann, Justice Breyer Retirement a Setback for NCAA Traditionalists, Yahoo (Jan 26, 2022),

[2] Id.

[3] National Collegiate Athletic Assn. v. Board of Regents of Univ. of Okla., 468 U.S. 85, 120 (1984).

[4] National Collegiate Athletic Assn. v. Alston, 141 S.Ct. 2141, 2158 (2021).

[5] Id at 2166.

[6] McCann, supra note 1

[7] Id.

[8] Alston, 141 S.Ct at 2166

[9] McCann, supra note 1