Supreme Court justice Antonin Scalia’s death Saturday sent the American political system into a flurry, prompting national debate over whether the president should be allowed to nominate a replacement and giving even more importance to the 2016 presidential election.

Well as it turns out, Scalia’s passing could impact the sports world as well, specifically whether college athletes get paid any time soon.

Back in 2014, U.S. District Judge Claudia Wilken ruled that college athletes have the right to profit off their likenesses and that the NCAA cannot prevent them from doing so but capped compensation at $5,000. The decision was considered a partial win for both plaintiff Ed O’Bannon and the NCAA. A year later, an appeals court affirmed that the NCAA violates anti-trust law but ditched Wilken’s $5,000 figure, deciding instead that players could be paid only the full cost of attendance.

According to CBS Sports, both sides now have until March 14 to seek an appeal to the Supreme Court. That’s where Scalia comes in.

Scalia was arguably the most ardent conservative on the Supreme Court, an “originalist” who basically opposed anything not enumerated in the constitution. Though we’ll never know for sure, we can assume he would have opposed breaking open the college athletics status quo and allowing college athletes to be paid.

Scalia’s death leaves the Supreme Court with four liberal and four conservatives, making any case that comes before it liable to result in a tied vote, which would result in an affirmation of the lower court’s ruling. Of course, Supreme Court justices are individuals who make their own decisions, and we can’t predict exactly what will happen with any given vote.

Via CBS Sports:

Does that mean one potential vote for the NCAA in the O’Bannon case is now gone? No one knows, but it’s a question being asked.

“There’s no question that any case that might wind up before the Supreme Court could be impacted by Scalia’s death,” said Gabe Feldman, director of the Tulane sports law program and the university’s associate provost for NCAA compliance. “One fascinating thing about sports cases is they don’t always necessarily fall upon neat party lines. Sometimes it’s conservative vs. liberal or management vs. labor, but that’s not always the case. Often it’s more difficult to predict the outcome of sports cases because there’s a mixture of influence that could impact the case.”

It’s possible that Scalia’s death will affect whether the two sides even file appeals to the Supreme Court. Because the appeals court came down somewhere between O’Bannon and the NCAA, both parties have some interest in appealing for a more total victory, but there could be risk involved. The NCAA in particular might decide to accept the ruling that its schools must pay full cost of attendance for fear of allowing the Supreme Court to overhaul its system of amateurism, according to a source quoted in the CBS Sports piece.

“I think (Scalia’s death) will probably factor into whether to file, but I don’t know how much,” said a high-ranking college sports administrator who has followed the O’Bannon proceedings. “My feeling is (the language in Board of Regents, a 1984 Supreme Court case) is not that all that important. It was a comment in a dissenting opinion so it doesn’t really hold precedent as law. I think there’s some downside going to the Supreme Court. They may invalidate everything done in court and I think most of us are satisfied with (the decision to allow) cost of attendance.”


Now, even if one or both parties file appeals to the Supreme Court, it’s unlikely the court would even hear the case given the volume of cases petitioned to it. But even that could be affected by the re-constitution of the court in the wake of Scalia’s death. What, if anything, happens with the Supreme Court in the coming year could have a major impact on whether the next wave of college sports stars get paid.

[CBS Sports] [photo:]


About Alex Putterman

Alex is a writer and editor for The Comeback and Awful Announcing. He has written for The Atlantic, VICE Sports,, and more. He is a proud alum of Northwestern University and The Daily Northwestern. You can find him on Twitter @AlexPutterman.