Amicus Curiae Brief — National Collegiate Athletic Association, Petitioner v. Shawne Alston, et al.

Nos. 20-512, -520

================================================================================================================

In The

Supreme Court of the United States

---------------------------------♦--------------------------------NATIONAL COLLEGIATE ATHLETIC ASSOCIATION,

Petitioner,

v.

SHAWNE ALSTON, et al.,

Respondents.

---------------------------------♦--------------------------------AMERICAN ATHLETIC CONFERENCE, et al.,

Petitioners,

v.

SHAWNE ALSTON, et al.,

Respondents.

---------------------------------♦--------------------------------On Writs Of Certiorari To The

United States Court Of Appeals

For The Ninth Circuit

---------------------------------♦--------------------------------BRIEF OF PROFESSOR SAM C. EHRLICH

AS AMICUS CURIAE

IN SUPPORT OF NEITHER PARTY

---------------------------------♦--------------------------------SAM C. EHRLICH

BOISE STATE UNIVERSITY

COLLEGE OF BUSINESS

& ECONOMICS

DEPARTMENT OF MANAGEMENT

1910 University Dr., MS-1625

Boise, Idaho 83725-1600

(208) 426-1639

samehrlich@boisestate.edu

ANITA M. MOORMAN

Counsel of Record

UNIVERSITY OF LOUISVILLE

SPORT ADMINISTRATION

PROGRAM

SAC East, Suite 104R

Louisville, Kentucky 40292

(502) 852-0553

amm@louisville.edu

Counsel for Amicus Curiae

January 27, 2021

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ...................................

ii

INTEREST OF THE AMICUS CURIAE ...............

1

INTRODUCTION AND SUMMARY OF ARGUMENT ..................................................................

1

ARGUMENT ...........................................................

5

I. There is No Existing Basis Under Board of

Regents or Other Supreme Court Precedent

to Grant the Petitioners a Broad, Threshold-Level Exemption from the Antitrust

Laws .............................................................

5

II. Granting Antitrust Immunity to the Petitioners in this Case Would Repeat the Same

Mistakes of Toolson v. New York Yankees

and Flood v. Kuhn ........................................ 10

III.

Granting Antitrust Immunity to the Petitioners in this Case Would Disrupt the Ongoing Legislative Process Surrounding

College Athletic Reform ............................... 14

CONCLUSION .......................................................

18

ii

TABLE OF AUTHORITIES

Page

CASES

Agnew v. NCAA, 683 F.3d 328 (7th Cir. 2012) ...... passim

American Needle v. NFL, 560 U.S. 183 (2010) .............9

Berger v. NCAA, 843 F.3d 285 (7th Cir. 2016) ..............6

California v. FPC, 369 U.S. 482 (1962) .................... 3, 9

Deppe v. NCAA, 893 F.3d 498 (7th Cir. 2018) ... 9, 10, 11, 18

Federal Baseball v. National League, 259 U.S.

200 (1922) ........................................................ passim

Flood v. Kuhn, 407 U.S. 258 (1972) .................... passim

Goldfarb v. Virginia State Bar, 421 U.S. 773

(1975) ..................................................................... 3, 9

Group Life & Health Ins. v. Royal Drug, 440 U.S.

205 (1979) ..................................................................3

In re NCAA Athletic Grant-in-Aid Cap Antitrust

Litigation, 375 F. Supp. 3d 1058 (N.D. Cal.

2019) ........................................................................12

In re National Collegiate Athletic Association,

958 F.3d 1239 (9th Cir. 2020) .......................... 7, 8, 13

NCAA v. Board of Regents, 468 U.S. 85 (1984) ..... passim

O’Bannon v. NCAA, 802 F.3d 1049 (9th Cir.

2015) .................................................................. 3, 7, 8

Radovich v. National Football League, 352 U.S.

445 (1957) ...................................................... 2, 11, 14

Salerno v. American League, 429 F.2d 1003 (2d

Cir. 1970) .................................................................10

iii

TABLE OF AUTHORITIES – Continued

Page

Smith v. NCAA, 139 F.3d 180 (3d Cir. 1998) ...... 8, 9, 11

So. Motor Carriers Rate Conf. v. United States,

471 U.S. 48 (1985) ............................................... 3, 18

Toolson v. New York Yankees, 346 U.S. 356

(1953) .................................................................. passim

United States v. International Boxing Club of

New York, 348 U.S. 236 (1955) ................................11

United States v. Philadelphia Nat. Bank, 374

U.S. 321 (1963) .................................................. 17, 18

Vanskike v. Peters, 974 F.2d 806 (7th Cir. 1992) ..........6

STATUTES

Sherman Antitrust Act, 26 Stat. 209, as

amended, 15 U.S.C. § 1 ........................................ 3, 10

OTHER AUTHORITIES

Samuel A. Alito, Jr., The Origin of the Baseball

Antitrust Exemption: Federal Baseball Club of

Baltimore, Inc. v. National League of Professional Baseball Clubs, 34 J. SUP. CT. HIST. 183

(2009) .........................................................................2

Steve Berkowitz & Christine Brennan, Justice

Department warns NCAA over transfer and

name, image, likeness rules, USA TODAY (Jan.

8, 2021), https://www.usatoday.com/story/sports/

ncaaf/2021/01/08/justice-department-warns-ncaaover-transfer-and-money-makingrules/6599747002/ ...................................................15

iv

TABLE OF AUTHORITIES – Continued

Page

Steve Berkowitz, NCAA Division I Council delays vote on transfer rules and name, image

and likeness, USA TODAY (Jan. 11, 2021), https://

www.usatoday.com/story/sports/ncaaf/2021/01/

11/ncaa-voted-delayed-transfer-rules-name-imageand-likeness/6629391002/.......................................16

Collegiate Athlete Compensation Rights Act, S.

5003, 116th Cong. (2020) ........................................16

Compensating College Athletes: Examining the

Potential Impact on Athletes and Institutions

Before the S. Comm. on Health, Ed., Labor,

and Pensions, 116th Cong. (2020)....................... 4, 16

Exploring a Compensation Framework for Intercollegiate Athletics Before the S. Comm. on

Com., Sci., and Transp., 116th Cong. (2020) ...... 4, 16

Fairness in Collegiate Athletics Act, S. 4004,

116th Cong. (2020) ..................................................16

Kevin McDonald, Antitrust and Baseball: Stealing Holmes, 1998 J. SUP. CT. HIST. 89 (1998) ...........2

Brett McMurphy, Twitter (May 29, 2020), https://

twitter.com/Brett_McMurphy/status/12664110

58044035075 ............................................................14

NCAA Board of Governors, Federal and State

Legislation Working Group, Final Report and

Recommendations (Apr. 17, 2020), https://ncaaorg.

s3.amazonaws.com/committees/ncaa/wrkgrps/

fslwg/Apr2020FSLWG_Report.pdf .........................15

Petition for Certiorari, NCAA v. Alston, No. 20512 (Oct. 15, 2020)...................................................15

v

TABLE OF AUTHORITIES – Continued

Page

Protecting the Integrity of College Athletics Before the S. Comm. on the Judiciary, 116th

Cong. (2020) ................................................... 4, 15, 16

Andy Staples and Nicole Auerbach, Which bill to

compensate college athletes will win out, and

which one should?, THE ATHLETIC (Dec. 28,

2020), https://theathletic.com/2287100/2020/12/

28/ncaa-congress-name-image-likeness-bill/..........17

Student Athlete Level Playing Field Act, H. R.

8382, 116th Cong. (2020) ........................................16

1

INTEREST OF THE AMICUS CURIAE1

Sam C. Ehrlich is an assistant professor of legal

studies in the Department of Management at Boise

State University2 with a research focus on the legal

aspects of athlete labor and employment. He has published several academic articles in connection with

such issues. Professor Ehrlich has a strong interest in

seeking clarification on the applicability of antitrust

laws to NCAA activities and restrictions based on preserving amateurism in intercollegiate athletics.

---------------------------------♦---------------------------------

INTRODUCTION AND

SUMMARY OF ARGUMENT

It is somewhat ironic that this case falls so near

the 100-year anniversary of Federal Baseball v. National League, 259 U.S. 200 (1922), a well-debated opinion by this Court that gave a particular sports league—

and, for decades only that sports league—broad immunity from the antitrust laws. In doing so, this Court

set up the field of sports antitrust law in a way that

would position professional baseball apart from the

1

Pursuant to Rule 37, amicus curiae certifies that no counsel

for a party authored this brief in whole or in part, and no party or

counsel for a party made a monetary contribution intended to

fund the preparation or submission of this brief. No one other

than amicus curiae made a monetary contribution to the preparation or submission of this brief. All parties have either filed

blanket consents to the filing of amicus briefs with the Clerk’s office or have given their direct consent to the filing of this brief.

2

Professor Ehrlich’s institutional affiliation is provided for

identification purposes only. This brief does not purport to represent the view of the affiliated institution.

2

other leagues to a degree that this Court would later

remark is “unrealistic, inconsistent, or illogical.” Radovich v. National Football League, 352 U.S. 445, 452

(1957). Indeed, even a sitting member of this Court has

remarked on the baseball exemption’s controversial

nature, noting that Federal Baseball has been “pilloried pretty consistently in the legal literature since at

least the 1940s.” Samuel A. Alito, Jr., The Origin of the

Baseball Antitrust Exemption: Federal Baseball Club

of Baltimore, Inc. v. National League of Professional

Baseball Clubs, 34 J. SUP. CT. HIST. 183, 192 (2009).

Of course, Justice Alito noted agreement with commentary that Federal Baseball was mostly correct for

its time, deeming a scholarly assessment of Federal

Baseball’s criticism as “principally for things that were

not in the opinion, but later added by Toolson and

Flood” to be seemingly “accurate.” Id. at 193 (quoting

Kevin McDonald, Antitrust and Baseball: Stealing

Holmes, 1998 J. SUP. CT. HIST. 89, 122 (1998)); see also

Toolson v. New York Yankees, 346 U.S. 356 (1953); Flood

v. Kuhn, 407 U.S. 258 (1972) (each affirming baseball’s

antitrust exemption on the basis of stare decisis). As

Justice Alito mentioned, this Court had “at least two

opportunities to overrule the Federal Baseball case,”

and did so both times “over withering dissents.” Alito,

supra, at 192. Thus, while Federal Baseball may not

deserve its notorious reputation, decisions by this

Court to continue to affirm the baseball exemption—

even while completely undercutting Federal Baseball’s

legal underpinnings in Flood, 407 U.S. at 282-83—are

certainly fair game for questioning.

3

While Petitioners have strategically refused to

frame it this way, this Court now—99 years after

Federal Baseball—once again faces a question about

whether to grant a request by a sports league to grant

it an antitrust exemption. But unlike Toolson and

Flood, the doctrinal history underpinning this case

presents little basis for an argument of binding stare

decisis based on past court decisions, as the language

continuously pointed to by Petitioners as compelling

the courts to grant them “ample latitude” under the

antitrust laws is merely dicta. NCAA v. Board of Regents, 468 U.S. 85, 120A (1984). After all—as the Ninth

Circuit found—while this Court “certainly discussed

the NCAA’s amateurism rules at great length” in

Board of Regents, “it did not do so in order to pass upon

the rules’ merits, given that they were not before the

Court.” O’Bannon v. NCAA, 802 F.3d 1049, 1063 (9th

Cir. 2015).

The Court should hold firm to decades of precedent

strongly disfavoring implicit, court-made antitrust exemptions. This Court has repeatedly noted a “heavy

presumption against implicit exemptions” to the Sherman Act, 26 Stat. 209, as amended, 15 U.S.C. § 1. Goldfarb v. Virginia State Bar, 421 U.S. 773, 777 (1975). See

also California v. FPC, 369 U.S. 482, 485 (1962) (“Immunity from the antitrust laws is not lightly implied”);

Group Life & Health Ins. v. Royal Drug, 440 U.S. 205,

231 (1979) (“It is well settled that exemptions from the

antitrust laws are to be narrowly construed”); So. Motor Carriers Rate Conf. v. United States, 471 U.S. 48, 67

(1985) (“Implied antitrust immunities, however, are

4

disfavored . . . ”). Such powers should be reserved to

Congress, who has thus far declined to grant the Petitioners that deference despite repeated opportunities

to do so. In fact, such opportunities have only increased

in recent years; Petitioners have had no less than three

opportunities to lobby Congress for legislative relief in

public Senate hearings since July 1, 2020. See Exploring a Compensation Framework for Intercollegiate Athletics Before the S. Comm. on Com., Sci., and Transp.,

116th Cong. (2020); Protecting the Integrity of College

Athletics Before the S. Comm. on the Judiciary, 116th

Cong. (2020); Compensating College Athletes: Examining the Potential Impact on Athletes and Institutions

Before the S. Comm. on Health, Ed., Labor, and Pensions, 116th Cong. (2020). But, as of yet, there is no

signed bill or reported consensus granting them the

antitrust immunity that they now seek from this

Court.

At the heart of this Court’s justification for affirming the baseball exemption in Toolson, 346 U.S. at 357,

was that “Congress . . . had [Federal Baseball] under

consideration but has not seen fit to bring such business under these laws by legislation having prospective effect.” If that statement is true, its corollary must

also be true: that since Congress has had plenty of opportunities to consider the Petitioners’ requests for antitrust immunity but “has not seen fit” to grant that

request through legislation, this Court should cede to

Congress’s inaction. Id.

Amicus curiae takes no position on whether the

Ninth Circuit decision should be affirmed or overruled.

5

Instead, the position set forth in this brief is that regardless of this Court’s conclusion in this case, the Petitioners’ underlying assertions that they are entitled

to antitrust immunity for amateurism-related activities based on the precedent of Board of Regents, 468

U.S. 85 (1984), should be rejected. As argued, Board of

Regents provides no stare decisis on this point, and any

approach by this Court that grants such antitrust immunity fails to consider the powerful lessons of the

Court-enacted baseball antitrust exemption.

---------------------------------♦---------------------------------

ARGUMENT

I.

There is No Existing Basis Under Board of

Regents or Other Supreme Court Precedent

to Grant the Petitioners a Broad, ThresholdLevel Exemption from the Antitrust Laws

For the past thirty-six years, lower courts have

wrestled with how to interpret this Court’s language

in NCAA v. Board of Regents, 468 U.S. 85 (1984), specifically the portions of Justice John Paul Stevens’s

decision that discuss the NCAA’s eligibility rules concerning the amateur status of college athletes. In his

conclusion to this decision, Justice Stevens wrote that

the NCAA “plays a critical role in the maintenance of

a revered tradition of amateurism in college sports.” Id.

at 120A. As such, Justice Stevens wrote, there is “no

question but that” the NCAA “needs ample latitude to

play that role” to “preserve a tradition that might otherwise die.” Id.

6

It is in that call for “ample latitude” where courts

have struggled with formulating a proportional response

under the Board of Regents precedent. As frequently

discussed by the Petitioners, the Seventh Circuit cited

this language to find that NCAA bylaws that “ ‘fit into

the same mold’ as eligibility rules” and “clearly protect[ ] amateurism” require a finding by a court “to

deem such rules procompetitive,” as “they define what

it means to be an amateur or a student-athlete, and

are therefore essential to the very existence of the

product of college football.” Agnew v. NCAA, 683 F.3d

328, 343 (7th Cir. 2012).

The Seventh Circuit’s broad interpretation of

Board of Regents as having compelled courts to give

wide-ranging deference for NCAA amateurism activities can also be shown through its spread to other areas of law. For example, the Seventh Circuit recently

cited Board of Regents to hold that college athletes cannot be subject to federal wage and hour law, as, in their

view, the “revered tradition of amateurism in college

sports” cited by Justice Stevens “defines the economic

reality of the relationship between student athletes

and their schools.” Berger v. NCAA, 843 F.3d 285, 291

(7th Cir. 2016). As such, the Seventh Circuit found that

the standard multifactor tests for employment status

“ ‘fail to capture the true nature of the relationship’ between student athletes and their schools” and thus

found that relationship to not represent an employment relationship. Id. (quoting Vanskike v. Peters, 974

F.2d 806, 809 (7th Cir. 1992).)

7

Conversely, in the presently appealed case the

Ninth Circuit properly affirmed the district court’s use

of the Rule of Reason test to determine the legality of

the disputed NCAA bylaws. See In re NCAA Athletic

Grant-in-Aid Cap Antitrust Litigation, 958 F.3d 1239,

1254-55 (9th Cir. 2020). Rather than relying on Board

of Regents to grant wide immunity to the Petitioners

activities—as the Seventh Circuit has prescribed—the

Ninth Circuit gave due deference to the preservation

of amateurism in college sports by allowing it as a

procompetitive purpose at the second step of Rule of

Reason analysis before affirming the district court’s

fact-based finding that the bylaws at issue were more

restrictive than necessary to preserve amateurism in

college sports. This is precisely how the Rule of Reason should operate, and—barring a Congressionallymandated antitrust exemption—exactly how deference

to the preservation of amateurism should be afforded

under Board of Regents when analyzing NCAA activities under the antitrust laws.

Instead of granting the Petitioners a thresholdlevel exemption from antitrust law the Ninth Circuit

accurately placed the question of what comprises “ample latitude” into the Rule of Reason test, allowing the

Petitioners to argue the merits of its preservation of

“ ‘amateurism,’ which, in turn, ‘widen[s] consumer

choice’ by maintaining a distinction between college

and professional sports” as a procompetitive rationale

that may—or may not—outweigh its activities in restraint of trade. In re NCAA, 958 F.3d at 1257; see also

O’Bannon, 802 F.3d at 1058-59 (discussing the merits

8

of preservation of amateurism as a procompetitive purpose to its restraints of trade at the second step of the

Rule of Reason test). This allows courts to consider

whether these rules are “patently and inexplicably

stricter than is necessary to accomplish all of its procompetitive objectives.” O’Bannon, 802 F.3d at 1075

(emphasis in original); In re National Collegiate Athletic Association, 958 F.3d at 1260.

There can be no question that the Ninth Circuit’s

approach is the only correct interpretation of the

breadth of the “ample latitude” that must be provided

to NCAA activities and at what stage of antitrust litigation that “ample latitude” must be considered. Justice Stevens and the rest of the Board of Regents

majority, after all, did not explicitly state that this “ample latitude” must be in the form of a wholesale, threshold-level exemption from the antitrust laws, or any

other law at that. Such questions were not even before

the Court in Board of Regents.

Indeed, the NCAA rules that were before the Court

in Board of Regents—output restrictions on college

football television broadcasts—were found to have “restricted rather than enhanced the place of intercollegiate athletics.” Board of Regents, 468 U.S. at 120A.

While Justice Stevens did write of rules that “are justifiable means of fostering competition among amateur

athletic teams and therefore procompetitive,” no language by the Board of Regents Court explicitly stated

that those rules should be fully above the law. Id. This

essential point was noted by the Third Circuit in Smith

v. NCAA, 139 F.3d 180, 185 (3d Cir. 1998), vacated on

9

other grounds, NCAA v. Smith, 525 U.S. 459 (1999), as

they stated that “no court of appeals expressly has addressed the issue of whether antitrust laws apply to

the NCAA’s promulgation of eligibility rules.” Given

that Smith was decided fourteen years after Board of

Regents, one can reasonably assume that the Third

Circuit was aware of this Court’s call for “ample latitude” in Board of Regents and did not read “ample latitude” as representing a wholesale exemption from

antitrust law.

Supporting this much more limited reading of

Board of Regents is entirely consistent with this

Court’s long disfavor of implicit, court-made exemptions to the antitrust laws. See, e.g., Goldfarb v. Virginia State Bar, 421 U.S. at 777 (“[O]ur cases have

repeatedly established that there is a heavy presumption against implicit exemptions [to § 1 of the Sherman

Act]”); California v. FPC, 369 U.S. at 485 (“Immunity

from the antitrust laws is not lightly implied”).3 A

3

While this Court held in American Needle v. NFL, 560 U.S.

183 (2010), that “teams that need to cooperate are not trapped by

antitrust law” as their shared interests “provide[ ] perfectly sensible justification for making a host of collective decisions,” that

holding was clear that Rule of Reason analysis is still required to

weigh that justification against its anticompetitive costs, even if

that analysis “can sometimes be applied in the twinkling of an

eye.” Id. at 202-04 (quoting Board of Regents, 468 U.S. at 110).

Instead, Petitioners seek a ruling—based on the Seventh Circuit’s

holdings in Agnew, 683 F.3d at 341-42, and Deppe, 893 F.3d at

501-02—that all restrictions of the college athlete labor market in

furtherance of amateurism are presumptively procompetitive,

thus automatically outweighing any alleged anticompetitive harm

put before the court. This request is not consistent with American

Needle.

10

wholesale “procompetitive presumption”—as formulated by the Seventh Circuit in Agnew v. NCAA, 683

F.3d at 341-42, and applied in Deppe v. NCAA, 893

F.3d 498, 501-02 (7th Cir. 2018)—is too close to a

blanket exemption from the Sherman Act to be warranted under the law. By contrast, the Ninth Circuit’s

approach in this litigation, which places the onus on

the Petitioners to prove that their alleged procompetitive

rationales—including the defense and maintenance of

amateurism—outweigh the clear anticompetitive effects of the Petitioners’ price fixing schemes, is the approach that should be adopted moving forward.

II.

Granting Antitrust Immunity to the Petitioners in this Case Would Repeat the Same

Mistakes of Federal Baseball v. National

League

Regardless of what one might think of this Court’s

creation of the baseball antitrust exemption in Federal

Baseball v. National League, 259 U.S. 200, it is undisputed that numerous judges—including those on this

Court—have bemoaned its existence. The Second Circuit famously referred to Federal Baseball as “not one

of Mr. Justice Holmes’ happiest days” while deeming

the rationale of Toolson’s affirmance of Federal Baseball to be “extremely dubious.” Salerno v. American

League, 429 F.2d 1003, 1005 (2d Cir. 1970). Even while

affirming the baseball exemption in Flood v. Kuhn, 707

U.S. at 282, this Court called the baseball exemption

“an exception and an anomaly” and an “aberration.”

Writing in dissent, Justice Douglas called the baseball

11

exemption “a derelict in the stream of the law that we,

its creator, should remove.” Id. at 286 (Douglas, J., dissenting). In fact, this Court wrote in an earlier case

(which declined to extend the baseball exemption to

professional football) that “were we considering the

question of baseball for the first time upon a clean slate

we would have no doubts” that the sport should not receive the protection given to them in Federal Baseball.

Radovich, 352 U.S. at 452.

In the years following Federal Baseball, this Court

has steadfastly refused to extend baseball’s antitrust

immunity to other professional sports. See Radovich,

352 U.S. 445 (declining to exempt professional football

from antitrust law); United States v. International Boxing Club of New York, 348 U.S. 236 (1955) (declining to

exempt professional boxing from antitrust law); Flood,

707 U.S. at 282-83 (“Other professional sports operating interstate—football, boxing, basketball, and, presumably, hockey and golf—are not so exempt.”) As

noted above, the Third Circuit found fourteen years after Board of Regents that no court—including this

one—had “addressed the issue of whether antitrust

laws apply to the NCAA’s promulgation of eligibility

rules.” Smith, 139 F.3d at 185.

But should Alston be found in favor of the Petitioners in a manner similar to a “procompetitive presumption” for amateurism rules as the Seventh Circuit has

now twice espoused, see Agnew, 683 F.3d at 341-42;

Deppe, 893 F.3d at 501-02—or, even worse, by declaring

NCAA amateurism restrictions to be non- or even

“anti-commercial” as the Sixth Circuit did in Bassett v.

12

NCAA, 528 F.3d 426, 433 (6th Cir. 2008)—the mistakes

of Federal Baseball would be repeated all over again.

The Petitioners make their request for antitrust deference based on the preservation of ‘amateurism,’ citing

Board of Regents. However, Judge Wilken at the Northern District Court of California correctly found that

this concept of ‘amateurism’ in intercollegiate sports

comes with “no stand-alone definition” and a wholly incomplete and inconsistent explanation of what can be

considered to be “pay,” at least based on plain language

definitions of the term. In re NCAA Athletic Grant-inAid Cap Antitrust Litigation, 375 F. Supp. 3d 1058,

1070-71 (N.D. Cal. 2019).

The flimsy nature of the Petitioners’ request for

antitrust deference based on ‘amateurism’ can only

bring back strong memories of Federal Baseball’s definition of professional baseball as merely “exhibitions

. . . which are purely state affairs.” Federal Baseball,

259 U.S. at 208. Just as how that definition may have

been true in 1922 but is not true now, the Petitioners’

and some lower courts’ vision of the relationship between college athletes and their schools as entirely divorced from economic consideration may have been

true several decades ago (including when Board of Regents was decided), but is certainly not true in modern

times. See Agnew, 683 F.3d at 338-41 (describing the

clearly economic nature of the modern intercollegiate

sports labor market.) Given that trajectory, one wonders

what judges and legal scholars 100 years from now

might think of the Court’s decision in this case should

that decision have the effect of granting antitrust

13

immunity to NCAA activities, even if that immunity is

narrower than the nearly-unlimited exemption that

baseball enjoys to this day.

Moreover, unlike in Federal Baseball’s progeny—

Toolson and Flood—no stare decisis binds this Court to

continue any existing antitrust immunity. Regardless

of what one may think of the power of language in

Board of Regents, language on amateurism is merely

dicta, as noted above. It is dicta that should certainly

be given its fair respect, but it is dicta that gives no

firm statement that the Court is bound to give any

true, threshold-level antitrust immunity to the Petitioners, as demonstrated by the circuit split between

courts attempting to interpret the Board of Regents

amateurism language. Board of Regents’s call for

courts to afford the NCAA “ample latitude” to promulgate amateurism restrictions is vague enough to be

interpretable in an infinite number of ways, even by

simply allowing amateurism as a valid procompetitive

purpose in Rule of Reason analysis. That is exactly

what the lower court did in this case. See In re National

Collegiate Athletic Association, 958 F.3d at 1257-59 (allowing “a much narrower conception of amateurism

that still gives rise to procompetitive effects” to be balanced as a procompetitive justification, rather than the

NCAA’s “expansive conception of amateurism” that

was found at the trial court to be unsupported by the

evidence). “Ample latitude” does not necessarily require an effective threshold-level exemption for activities implicating amateurism in college sports. Thus, as

precedent, the disputed Board of Regents language is

14

wholly distinguishable from the much more directive

Federal Baseball doctrine that was relied upon as stare

decisis in Toolson and Flood.

In sum, amicus curiae respectfully argues that if

this Court were to assess a broad reading of the wellcited Board of Regents language on amateurism to

grant antitrust immunity to the NCAA, it would be

accepting the NCAA’s implicit argument that intercollegiate sports is entitled to special treatment as

compared with the other sports leagues. A “revered

tradition of amateurism in college sports”—as assessed by this Court more than 35 years ago—is not

sufficient to justify such treatment. Board of Regents,

85 U.S. at 120A. The grant of the decidedly baseballlike special treatment that Petitioners seek would be—

in this Court’s own words—“unrealistic, inconsistent,

or illogical.” Radovich, 352 U.S. at 452. Furthermore,

as this Court has repeatedly stated, such grants should

be exclusively in the hands of Congress, not the courts.

III. Granting Antitrust Immunity to the Petitioners in this Case Would Disrupt the Ongoing

Legislative Process Surrounding College

Athletic Reform

It is of little secret that the Petitioners have been

engaged with various members of Congress to lobby for

legislation to preempt recently passed state legislation

forcing change in NCAA name, image, and likeness

(NIL) policy. See, e.g., Brett McMurphy, Twitter (May

29, 2020), https://twitter.com/Brett_McMurphy/status/

15

1266411058044035075 (attaching a letter from five Petitioner athletic conferences to Congress asking Congress to enact federal NIL legislation); NCAA Board of

Governors, Federal and State Legislation Working

Group, Final Report and Recommendations at 27 (Apr.

17, 2020), https://ncaaorg.s3.amazonaws.com/committees/

ncaa/wrkgrps/fslwg/Apr2020FSLWG_Report.pdf; Protecting the Integrity of College Athletics: Hearing Before

the S. Comm. on the Judiciary, 116th Cong. 4 (2020)

(statement of Mark Emmert, President, National Collegiate Athletic Association). Petitioners even cited

this Congressional action in their own petition for writ

of certiorari. Pet. for Writ of Certiorari at 6, NCAA v.

Alston, No. 20-512 (Oct. 15, 2020) (noting that Congress “is considering (with petitioner’s active involvement) whether to adopt federal legislation regarding

student-athlete compensation”).

Such legislation would presumably include—if

Congress so chooses—immunity from antitrust enforcement. Indeed, lawyers from the Department of

Justice recently sent a letter to the NCAA warning

that their proposed direction on NIL reform measures

“may raise concerns under the antitrust laws.” Steve

Berkowitz & Christine Brennan, Justice Department

warns NCAA over transfer and name, image, likeness

rules, USA TODAY (Jan. 8, 2021), https://www.usatoday.

com/story/sports/ncaaf/2021/01/08/justice-departmentwarns-ncaa-over-transfer-and-money-making-rules/

6599747002/. Citing this letter, the NCAA has now delayed voting on its proposed NIL and athlete transfer

rules indefinitely, presumably waiting to see whether

16

it can receive antitrust immunity for these rules from

Congress—or from this Court in this case—first. Steve

Berkowitz, NCAA Division I Council delays vote on

transfer rules and name, image and likeness, USA TODAY (Jan. 11, 2021), https://www.usatoday.com/story/

sports/ncaaf/2021/01/11/ncaa-voted-delayed-transferrules-name-image-and-likeness/6629391002/.

But in the past year the Petitioners have been afforded no less than three opportunities to lobby Congress in legislative hearings debating the extent to

which Congress should intervene. See Compensating

College Athletes: Examining the Potential Impact on

Athletes and Institutions Before the S. Comm. on

Health, Ed., Labor, and Pensions, 116th Cong. (2020);

Exploring a Compensation Framework for Intercollegiate Athletics Before the S. Comm. on Com., Sci., and

Transp., 116th Cong. (2020); Protecting the Integrity of

College Athletics Before the S. Comm. on the Judiciary,

116th Cong. (2020). These efforts have led to several

proposed bills, some of which have been formally submitted by several different Members of Congress for

committee review. See, e.g., Fairness in Collegiate Athletics Act, S. 4004, 116th Cong. (2020) (introduced by

Senator Marco Rubio); Collegiate Athlete Compensation Rights Act, S. 5003, 116th Cong. (2020) (introduced by Senator Roger Wicker); Student Athlete

Level Playing Field Act, H. R. 8382, 116th Cong. (2020)

(introduced by Representative Anthony Gonzalez).

Most of this proposed legislation includes some

degree of antitrust immunity for the Petitioners’ activities, as well as immunity under federal and state

17

wage-and-hour statutes like the Fair Labor Standards

Act. See Andy Staples and Nicole Auerbach, Which bill

to compensate college athletes will win out, and which

one should?, THE ATHLETIC (Dec. 28, 2020), https://

theathletic.com/2287100/2020/12/28/ncaa-congress-nameimage-likeness-bill/ (summarizing the proposed NIL

legislation before Congress.) But Congress has thus far

failed to take any action to pass this legislation and

grant the relief that the Petitioners now seek from this

Court. See Flood, 407 U.S. at 281-83 (citing as persuasive the “numerous and persistent” legislative proposals that Congress failed to pass and finding that

since Congress had yet to enact this legislation, they

clearly intended baseball’s treatment under the antitrust laws to remain as is.)

Because of the lack of Federal Baseball-like stare

decisis or existing legislation already prescribing the

NCAA antitrust immunity for amateurism restrictions,

this Court’s prior precedent placing the role of creating

antitrust immunity in the hands of the legislative

branch should hold. As an example, this case has

strong similarities to the fact pattern leading to this

Court’s holding in United States v. Philadelphia Nat.

Bank, 374 U.S. 321, 348 (1963), where this Court rejected the argument that Congress intended to confer

an antitrust exemption to the banking industry

through a 1950 amendment which had added an assets-acquisition provision to § 7 of the Clayton Act. Id.

at 340-48. Reviewing the legislative history of the

amendment, this Court stated that there was “no indication . . . that Congress wished to confer a special

18

dispensation upon the banking industry” and if Congress had wished to grant a wider exemption than the

narrow amendment granting exemption solely to asset

acquisition, “surely it would have exempted the industry” either at that time or through later legislation. Id.

at 348.

Despite Petitioners’ efforts, Congress has thus far

refused to grant this request. Like the bankers in Philadelphia Nat. Bank, Petitioners should not be permitted to continue to usurp the legislative process by

asking this Court to grant them antitrust protection

that Congress has, at least thus far, declined to grant

to them. See So. Motor Carriers Rate Conf., 471 U.S. at

67 (“Only Congress, expressly or by implication, may

authorize price fixing, and has done so in particular industries or compelling circumstances.”) Such power

should be left in the hands of the legislative branch,

which will allow Congress to grant the Petitioners antitrust immunity only when it sees fit.

---------------------------------♦---------------------------------

CONCLUSION

As noted, amicus curiae takes no position on

whether the Ninth Circuit decision should be affirmed

or overruled. This brief instead submits that the Court

in this case is faced with a second choice and question

of law: whether to affirm the Seventh Circuit’s approach

in Agnew v. NCAA, 683 F.3d at 341-42, and Deppe v.

NCAA, 893 F.3d at 501-02, of granting broad antitrust

immunity through a “procompetitive presumption” for

19

the Petitioners’ activities related to amateurism; or

whether to affirm the Ninth Circuit’s approach, which

has rejected Petitioners’ claim to antitrust immunity

and instead forced them to justify their conduct by balancing procompetitive effects against anticompetitive

harms.

In the view of amicus curiae, that decision should

be clear. The Ninth Circuit’s approach properly applies

the Rule of Reason to weigh the merits of the Petitioners’ conduct in its proper holistic context. By contrast,

the Seventh Circuit precedent relied on by the Petitioners improperly reads Board of Regents dicta to

grant implied antitrust immunity in a way that runs

counter to decades of Court precedent. Affirming that

approach over the Ninth Circuit’s methodology—thus

reading into Board of Regents an antitrust exemption

for amateur sports—would resurrect the failed reasoning of Toolson and Flood.

This Court should not create another sport-specific antitrust exemption that would haunt its legacy.

This is particularly true since unlike in Toolson and

Flood—where Congress was faced with the choice of

whether to remove an antitrust exemption created by

firm and decisive doctrine by this Court—Congress is

currently deciding whether to add antitrust immunity

by answering the Petitioners’ call to exempt amateurism restrictions through legislation. Thus, regardless

of how the Court rules in this case, its decision should

properly leave the decision of antitrust immunity for

amateurism activities to the legislative branch. This

can be done by either affirming the Ninth Circuit’s

20

holding, or by taking a more narrow but decisive approach to reversal that makes clear that regardless of

this Court’s judgment of the Ninth Circuit’s findings,

its approach of relying on Rule of Reason analysis is

the only correct and proper means of determining the

legality of NCAA amateurism restrictions under the

antitrust laws.

Respectfully submitted,

SAM C. EHRLICH

BOISE STATE UNIVERSITY

COLLEGE OF BUSINESS

& ECONOMICS

DEPARTMENT OF MANAGEMENT

1910 University Dr., MS-1625

Boise, Idaho 83725-1600

(208) 426-1639

samehrlich@boisestate.edu

ANITA M. MOORMAN

Counsel of Record

UNIVERSITY OF LOUISVILLE

SPORT ADMINISTRATION

PROGRAM

SAC East, Suite 104R

Louisville, Kentucky 40292

(502) 852-0553

amm@louisville.edu

Counsel for Amicus Curiae

January 27, 2021