Amicus Curiae Brief — National Collegiate Athletic Association, Petitioner v. Shawne Alston, et al.
Supreme Court briefFeb 8, 2021
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Nos. 20-512, 20-520
IN THE
Supreme Court of the United States
________________
NATIONAL COLLEGIATE ATHLETIC ASSOCIATION,
Petitioner,
v.
SHAWNE ALSTON, ET AL.,
Respondents.
________________
AMERICAN ATHLETIC CONFERENCE, ET AL.,
v.
SHAWNE ALSTON, ET AL.,
________________
Petitioners,
Respondents.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
________________
BRIEF OF FORMER STUDENT-ATHLETES AS AMICI
CURIAE IN SUPPORT OF PETITIONERS
________________
E. Joshua Rosenkranz
Mark Davies
ORRICK, HERRINGTON &
Counsel of Record
SUTCLIFFE LLP
Katherine M. Kopp
51 West 52nd Street
Cesar A. Lopez-Morales
New York, NY 10019
Zachary Hennessee
ORRICK, HERRINGTON &
SUTCLIFFE LLP
Will Stute
1152 15th Street
ORRICK, HERRINGTON &
SUTCLIFFE LLP
Washington, DC 20005
1152 15th Street
(202) 339-8400
Washington, DC 20005
mark.davies@orrick.com
Counsel for Amici Curiae
i
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .................................... iii
INTEREST OF AMICI CURIAE .............................. 1
SUMMARY OF ARGUMENT................................... 3
ARGUMENT ............................................................. 6
I.
The Revered Tradition Of Amateurism
Is Essential To College Sports And
Cherished By Student-Athletes. .................... 7
A.
Student-athletes benefit from
amateurism in intercollegiate
athletics. ............................................ 9
B.
History confirms the necessity
of the NCAA’s careful
regulation to preserve
amateurism in college sports. ......... 13
C.
The NCAA’s compensation caps
are essential to the tradition of
amateurism...................................... 16
II.
The Lower Courts’ Rulings Endanger
The Tradition Of Amateurism By
Inviting A Compensation Arms Race. ......... 19
III.
A
Compensation
Arms
Race
Undermines
The
Tradition
Of
Amateurism By Degrading The Athletic
And Academic Experiences Of Most
Student-Athletes. ......................................... 23
A.
Many college athletics programs
risk being defunded or cut. ............. 24
ii
B.
Student-athletes’ educational
experiences will also suffer. ............ 31
CONCLUSION ........................................................ 35
APPENDIX A - LIST OF AMICI CURIAE
iii
TABLE OF AUTHORITIES
Page(s)
Cases
Deppe v. NCAA,
893 F.3d 498 (7th Cir. 2018)................................17
Hennessey v. NCAA,
564 F.2d 1136 (5th Cir. 1977)........................17, 18
Law v. NCAA,
134 F.3d 1010 (10th Cir. 1998)......................19, 22
McCormack v. NCAA,
845 F.2d 1338 (5th Cir. 1988)........................17, 19
National Collegiate Athletic Association
v. Board of Regents of the University
of Oklahoma,
468 U.S. 85 (1984) ........................................ passim
In re NCAA Athletic Grant-in-aid Cap
Antitrust Litig.,
4:14-md-02541-CW, 2019 WL
1593939 (N.D. Cal. Mar. 8, 2019)........................21
In re NCAA Athletic Grant-in-aid Cap
Antitrust Litig.,
958 F.3d 1239 (9th Cir. 2020)........................20, 23
O’Bannon v. NCAA,
802 F.3d 1049 (9th Cir. 2015)........................15, 31
iv
Smith v. NCAA,
139 F.3d 180 (3d Cir. 1998) .................................17
Statutes
20 U.S.C. § 1087kk ....................................................16
20 U.S.C. § 1087ll......................................................16
20 U.S.C. § 1087tt .....................................................16
NCAA Bylaws
NCAA Bylaws § 1.3.1 .............................. 10, 15, 17, 35
NCAA Bylaws § 2.9 .............................................15, 16
NCAA Bylaws § 2.13 .................................................16
NCAA Bylaws § 12.01.1 ..............................................8
NCAA Bylaws § 12.1.2(a) ....................................15, 16
NCAA Bylaws § 14 ......................................................8
NCAA Bylaws § 15.01.06 ..........................................16
NCAA Bylaws § 15.01.6.1 .........................................17
NCAA Bylaws § 15.02.2.1 .........................................17
NCAA Bylaws § 15.1 .................................................16
NCAA Bylaws § 16.1 .................................................17
NCAA Bylaws § 16.3 .................................................17
v
NCAA Bylaws § 16.4 .................................................17
NCAA Bylaws § 16.5 .................................................17
NCAA Bylaws § 16.8 .................................................17
NCAA Bylaws § 16.11.8 ............................................17
Other Authorities
Victoria Lee Blackstone, How Much
Money Do College Sports Generate?,
ZACKS (Jan. 28, 2019),
https://tinyurl.com/y3yej4cf .................................27
Chadd Cripe, U of I Soccer Players
Fight to Save Their Program Days
After Stunning News, Idaho
Statesmen (Apr. 10, 2018),
https://tinyurl.com/y33crzlg.................................29
Ross Dellenger & Pat Forde, A
Collegiate Model in Crisis: The
Crippling Impact of Schools Cutting
Sports, Sports Illustrated (June 11,
2020), https://tinyurl.com/y264l3r5 .....................30
Merritt Enright et al., Hidden figures:
College Students May Be Paying
Thousands in Athletic Fees and Not
Know It, NBC News (Mar. 8, 2020),
https://tinyurl.com/uku9w9s ...............................33
vi
Emily Giambalvo, When A College Cuts
A Sports Program, These Are The
Lives Upended, The Wash. Post (Oct.
6, 2020),
https://tinyurl.com/yy4ogul4................................29
Rob Goldberg, US Sen. Chris Murphy
Issues Report Calling for NCAA to
Pay Student-Athletes, Bleacher
Report (Mar. 28, 2019),
https://tinyurl.com/yxgowj54 ...............................25
Harvard Men’s Heavyweight Rowing,
Harvard-Yale Regatta – 150 Years of
Tradition,
https://tinyurl.com/y6j5c5mv (visited
Feb. 4, 2021) ...........................................................7
Will Hobson & Steven Rich, Playing in
the Red, The Wash. Post. (Nov. 23,
2015), https://tinyurl.com/yyj5uva4 ........ 22, 23, 26
John Keim, With Average NFL Career
3.3 years, Players Motivated to
Complete MBA Program, ESPN
(July 26, 2016),
https://tinyurl.com/y5wj8zku...............................34
Paula Lavigne, Rich Get Richer in
College Sports as Poorer Schools
Struggle to Keep Up, ESPN (Sept. 2,
2016), https://tinyurl.com/y2sllfhs ......................26
vii
Meghan Lopez, Should College Athletes
Be Paid? Passions High on Both
Sides of the Debate, Denver7 (Mar.
12, 2019),
https://tinyurl.com/y55p63qb .................. 28, 31, 34
Michael McCann, Examining What a
Change to the NBA’s One-and-Done
Rule Could Mean for All Involved,
Sports Illustrated (Mar. 3, 2019),
tinyurl.com/1jffn7w3............................................12
Cody J. McDavis, Comment, The Value
of Amateurism, 29 Marq. Sports L.
Rev. 275 (2018) .............................. 9, 14, 15, 28, 32
Cody J. McDavis, Paying Students to
Play Would Ruin College Sports, The
N.Y. Times (Feb. 25, 2019),
https://tinyurl.com/y38mm2c3................. 26, 27, 28
Matt Mikesic, Paying Student Athletes
is Bad News for College Sports, The
Hawk Newspaper (Oct. 8, 2019),
https://tinyurl.com/y4eb2mvg ..............................28
NCAA, DI Non-Autonomy Members,
https://tinyurl.com/yxaz664o (visited
Feb. 4, 2021) .........................................................26
NCAA, Estimated Probability of
Competing in Professional Athletics
(Apr. 8, 2020),
https://tinyurl.com/y4qydstv................................34
viii
NCAA, Finances of Intercollegiate
Athletics,
https://tinyurl.com/y4rzfv8t (visited
Feb. 4, 2021) ...................................................25, 26
NCAA, Graduation Rates,
https://tinyurl.com/y5ej3d95 (visited
Feb. 4, 2021) .........................................................11
NCAA, Questions and Answers on
Name, Image and Likeness (Jan.
2021), tinyurl.com/1cr09ks9 ..................................9
NCAA, What is the NCAA?,
https://tinyurl.com/yxm2nogd
(visited Feb. 4, 2021)............................................25
Eben Novy-Williams, Clemson Track
Cuts Reveal Differences in NCAA
Budgets and Accounting, Yahoo!
(Nov. 11, 2020),
https://tinyurl.com/y3o95jog ................................30
Denise-Marie Ordway, Power Five
Colleges Spend Football, Basketball
Revenue on Money-losing Sports:
Research, Journalist’s Resource
(Sept. 10, 2020),
https://tinyurl.com/y5mfopoh ..............................27
President Theodore Roosevelt, Play and
Work, Speech Before Harvard
Students (Feb. 23, 1907), printed in
The Harvard Graduates Magazine
15:57 (1906-1907) ..................................... 23, 24, 31
ix
Robert Sandy, The Economics of US
Intercollegiate Sports and the NCAA,
in HANDBOOK ON THE ECONOMICS OF
SPORT 396 (Wladimir Andreff &
Stefan Szymanski eds., 2006)..............................13
Howard J. Savage et al., American
College Athletics, Report of the
Carnegie Foundation for the
Advancement of Teaching, Bulletin
No. 23 (1929) ........................................................15
Rodney K. Smith, The National
Collegiate Athletic Association’s
Death Penalty: Educators Punish
Themselves and Others, 62 Ind. L.J.
985 (1987) ........................................... 13, 14, 15, 23
Willie T. Smith III, Tribute to Flying
Wedge a Starting Point for NCAA’s
Hall, USA TODAY, Mar. 30, 2000 ........................14
B. Spears & R. Swanson, HISTORY OF
SPORT AND PHYSICAL ACTIVITY IN THE
UNITED STATES 208 (1978)...................................14
Marc Stein, A New Option for N.B.A.
Prospects: The Million-Dollar Intern,
The N.Y. Times (Oct. 22, 2018),
https://tinyurl.com/y7qsu5z9 ...............................12
x
Bill Whitaker, Some Colleges Axing
“Secondary Sports” Like Gymnastics
and Tennis as Pandemic Continues,
60 Minutes (Dec. 6, 2020),
https://tinyurl.com/y6cvpqvy ...............................30
Billy Witz & Adam Zagoria, Oklahoma
State Punished by N.C.A.A. for Role
in Basketball Recruiting Scandal,
The N.Y. Times (June 5, 2020),
tinyurl.com/4ekfd6ys ...........................................22
Josh Wright, Idaho’s Move to FCS Has
Big Funding Implications, The
Spokesman-Review (Oct. 14, 2016),
https://tinyurl.com/y44uausq ..............................29
Alfred C. Yen, Early Scholarship Offers
and the NCAA, 52 B.C. L. Rev. 585
(2011) ....................................................................22
Andrew Zimbalist, How Financial
Pressures Can Lead to Athletic
Scandals, The Chronicle of Higher
Education (Nov. 9, 2018),
https://tinyurl.com/y2bn6tgd ...............................22
INTEREST OF AMICI CURIAE 1
Amici are former student-athletes who played in
the NCAA Division I, the highest level of intercollegiate athletics: Melsahn Basabe, Walter Bond, Morgan Chall, Catherine DeSilvester, Kelly Dopke, María
Fassi, Jake Gibbons, Kate Hall, Sarana Hyatt, Tre
Kelley, Olivia Lubarsky, Cody McDavis, Darren
McFadden, Chris Monroe, Jamie Redman, Wallace
Spearmon Jr., Kendall Spencer, and Kara Winger.
See App. A.
Amici participated in college basketball, gymnastics, football, soccer, swimming, golf, rowing, volleyball, and track and field. They include numerous
NCAA champions, a two-time Heisman Trophy runner-up and former NFL running back, a former NBA
player, and multiple Olympians. Some compete professionally in the United States and abroad. Others
have pursued graduate school after college—three are
practicing attorneys, one is a medical student, and another is pursuing a master’s degree in sports management. Amici’s lives were forever enriched through
their participation in intercollegiate sports, where
they honed invaluable skills that have allowed them
to thrive and give back to their families and communities. Their interest in this case lies in ensuring the
1 The parties have consented to the filing of this brief. No
counsel for a party authored the brief in whole or in part. No
party, counsel for a party, or any person other than amici curiae
and their counsel made a monetary contribution intended to
fund the preparation or submission of the brief.
2
proper adherence to the revered tradition of amateurism and the continued availability of intercollegiate
athletics.
Amici are diverse in many ways, but they share a
common story: Like the vast majority of student-athletes, amici played college sports not because they
wished or expected to be paid. Rather, they played for
the love of the game, and for the unique social, educational, and leadership opportunities that intercollegiate athletics affords. Amici also have a deep
appreciation for the amateur model of intercollegiate
athletics, which they see as the underpinning of the
many skills and opportunities they received as
scholar-athletes. They are deeply concerned that this
model is now under threat. If schools are permitted to
offer virtually limitless benefits to recruit and retain
top student-athletes, amici fear that future generations of student-athletes may no longer have access to
the same opportunities they had—including access to
higher education.
As amicus Jake Gibbons—a former swimmer at
Texas A&M University—explains, the lower courts’
decisions represent an existential threat to intercollegiate athletics:
The outcome of this ruling will decide
the fate of thousands of young people
who aspire to compete in college in nonrevenue generating sports. The outcome
of this ruling will decide if an eight-yearold swimmer will be able to dream about
competing at the highest level of his or
3
her sport while preparing … for a fulfilling career post-graduation. 2
Accordingly, amici respectfully ask this Court to
preserve intercollegiate sports by reversing the judgment of the court of appeals.
SUMMARY OF ARGUMENT
I. Central to intercollegiate athletics is the fundamental principle of amateurism: Student-athletes,
unlike professional athletes, do not get paid to play
their sport and must remain academically eligible to
play.
A. That principle of amateurism is tremendously
beneficial to student-athletes. Through their participation in intercollegiate athletics and integration into
the university community, student-athletes learn invaluable lessons of self-discipline, leadership, and
time management, while gaining access to the
school’s network and academic and social opportunities. Unsurprisingly, then, most student-athletes report having a positive academic and social experience
and have higher graduation rates than comparable
non-athletes.
B. History confirms that, for these benefits to continue, amateurism must be preserved through the
careful regulation of intercollegiate athletics. Schools’
desire to win at all costs and generate revenue has
2 The quoted statements by amici were supplied to undersigned counsel for preparation of this brief, except where otherwise noted.
4
historically led to practices that have been harmful to
student-athletes, including compensating the best
athletes and continually blurring the line between
amateur and professional athletics. The NCAA was
born in the midst of these abuses, in large part to preserve amateurism and protect the viability of intercollegiate athletics. For more than a century, the NCAA,
through its member institutions and student-athlete
representatives, has therefore required that studentathletes be amateurs in intercollegiate sports—playing for the love of the sport and the desire for a college
education, rather than for payment or other compensation. The lower courts’ decisions here, however,
threaten to reintroduce precisely the abuses—large
cash payments and non-cash benefits to the top few
players—that led to the NCAA’s formation in the first
place.
C. The NCAA’s compensation caps are a core component of its mission to maintain amateurism in college sports—enabling players to maximize the
benefits of their educational experience, while protecting college sports from becoming yet another professional minor league. That the rules have been
updated over time only demonstrates that maintaining and preserving amateurism while supporting athletes’ educational experiences requires the careful
balancing of many competing interests. The NCAA
needs latitude to strike this difficult balance.
II. Disregarding the NCAA’s carefully calibrated
compensation rules, the courts below decreed that
student-athletes can continue to be amateurs even if
they are provided unlimited “education-related” benefits. This amorphous and capacious standard allows
5
schools to, for example, offer lucrative internships
and luxury goods to top student-athletes so long as
they are even marginally related to education. The decisions below also make it harder to curtail these
abuses, displacing the NCAA’s professional judgment
with the whims of creative plaintiffs’ attorneys. Without these important guardrails, schools will engage in
a damaging compensation arms race to recruit and retain top student-athletes.
III. The compensation arms race that will inevitably ensue from the decisions below will harm student-athletes, substantially diminishing both their
athletic and educational opportunities.
A. Slashing limits on student-athlete compensation endangers hundreds of non-revenue-generating
sports programs. A few schools will be able to spend
extravagantly to recruit and retain top athletes, and
to keep up, most schools (which almost uniformly lose
money on their athletics programs) will be forced divert funds from less popular sports or cut them altogether. This extravagant spending may also drive
away fans who watch college sports because they believe students play for the love of the game, not for
pay. The greatest casualty will be the hundreds of
thousands of athletes in non-revenue-generating
sports, who risk seeing their opportunities to participate in intercollegiate athletics evaporate.
B. The decisions below also undermine the educational opportunities available to student-athletes. As
schools cut less popular sports to pay for the compensation arms race, so too will they cut the athletics
6
scholarships that countless student-athletes (especially those from disadvantaged communities) depend
on. Those few student-athletes on the receiving end of
schools’ increased largess will likewise suffer educationally, as they will be forced to prioritize athletics at
the expense of their academic experiences and integration into the broader campus community.
ARGUMENT
Thirty-seven years ago, this Court recognized in
National Collegiate Athletic Association v. Board of
Regents of the University of Oklahoma that the NCAA
needs “ample latitude” to fulfill its “critical role in the
maintenance of a revered tradition of amateurism in
college sports”—a tradition that, absent the NCAA’s
regulation, “might otherwise die.” 468 U.S. 85, 102,
120 (1984). Central to maintaining this tradition, the
Court explained, are the NCAA’s “standards of amateurism,” which condition students’ eligibility to participate in intercollegiate athletics on the
requirement that “athletes must not be paid.” Id. at
88, 102. In contrast, the Court found that a television
plan challenged on appeal—which operated to “raise
prices and reduce output”—did not “fit into the same
mold as do rules defining … the eligibility of participants,” and was therefore subject to rigorous analysis
under the antitrust “rule of reason.” Id. at 113, 117.
The many NCAA rules that the lower courts invalidated below—setting caps on the types and
amount of compensation that can be given to studentathletes and recruits—not only “fit into the same
mold” as the “standards of amateurism” approvingly
7
referenced in Board of Regents, but, more importantly, they are that very mold. See Br. for NCAA
at 27-28. The rules are the entire bedrock underlying
the core principle of amateurism that “athletes must
not be paid.” Board of Regents, 468 U.S. at 102. Accordingly, these rules are entitled to deference under
this Court’s precedent.
The courts below disregarded this Court’s teachings, impermissibly subjecting the NCAA’s compensation rules to demanding rule-of-reason scrutiny and
replacing them with an unworkable alternative that
redefines the tradition of amateurism beyond recognition. To borrow the words of one former member of
this Court and (like amicus Darren McFadden) runner-up for the Heisman Trophy, the consequences of
the lower courts’ actions in this case will be profoundly “harmful to students and institutions alike.”
Id. at 121 (White, J., dissenting).
I.
The Revered Tradition Of Amateurism Is
Essential To College Sports And Cherished
By Student-Athletes.
Intercollegiate athletic competition is deeply engrained in our Nation’s history. For more than 169
years, starting with the 1852 Harvard-Yale regatta
held on New Hampshire’s Lake Winnipesaukee, student-athletes have demonstrated their passion for
sports while representing their respective schools,
student bodies, and alumni. 3 Since then, school pride
3 See Harvard Men’s Heavyweight Rowing, Harvard-Yale
Regatta – 150 Years of Tradition, https://tinyurl.com/y6j5c5mv
(visited Feb. 8, 2021).
8
has only grown. Rivalries have emerged. Invaluable
lessons of discipline, leadership, teamwork, and
friendship have been imparted. And, perhaps most
significantly, the doors to higher education have been
opened for many.
Central to that history—and essential to the resolution of this case—is the “revered tradition of amateurism.” Board of Regents, 468 U.S. at 120. The
cornerstone of that tradition is simple: Student-athletes are students and amateur athletes; unlike professional athletes, student-athletes do not get paid to
play their sport and must remain academically eligible to play. See id. at 102. 4 Amateurism has delivered
countless benefits to student-athletes over the
years—and, as amici can attest, still does. Infra § I.A.
History teaches that, for these benefits to endure, the
prohibition on pay-for-play must remain a central
tenet of the regulation of intercollegiate athletics. Infra § I.B. That is precisely what the NCAA has sought
to do over the past century.
To reinforce this salutary tradition and ensure
the clear demarcation between amateur student-athletes and professional athletes, the NCAA has issued
rules limiting the benefits that student-athletes can
4 See also NCAA Div. I Manual, §§ 12.01.1, 14 (Aug. 21,
2020) (NCAA Bylaws), https://tinyurl.com/w79kdr2.
9
receive. Infra § I.C. Reversing the judicial invalidation of those beneficial rules is what this case is
about. 5
A. Student-athletes benefit from amateurism
in intercollegiate athletics.
Since its inception, intercollegiate athletics has
provided an opportunity for student-athletes to compete in their sport on behalf of their school while pursuing a university degree.
Student-athletes benefit from the revered tradition of amateurism—and the rules that preserve it—
in myriad ways. In the late nineteenth century, student-athletes highlighted the “vigor and mental alertness,” “loyalty” and “qualities of leadership that their
participation in [intercollegiate] athletics had engendered.” 6 Modern student-athletes enjoy the same benefits, and much more. By participating in
intercollegiate athletics, student-athletes are able to
learn more about “exercise, eating habits, and general
physical care.” Ex. B., Dir. Test. Decl. of Prof. James
J. Heckman, at 14-15, Dkt. 986-2 (Heckman Decl.). 7
They also have invaluable opportunities to develop
5 In contrast, this case is not about the rights of studentathletes to be compensated for the commercial use of their
names, images, and likeness—or the NCAA’s rules to that effect.
See generally NCAA, Questions and Answers on Name, Image
and Likeness (Jan. 2021), tinyurl.com/1cr09ks9.
6 Cody J. McDavis, Comment, The Value of Amateurism, 29
Marq. Sports L. Rev. 275, 288 (2018).
7 “Dkt.” references are to pleadings filed in In re NCAA Athletic Grant-in-Aid Cap Antitrust Litig., No. 4:14-md-02541-CW.
10
their “self-discipline, leadership, and teamwork …
[and] time management skills.” Id. at 7 (cleaned up).
Through a strict regimen of athletics training and academic preparation, student-athletes learn how to be
leaders in their respective teams, schools, and communities. And, because they are integrated into the
university community, student-athletes enjoy the
same academic, social, and other developmental opportunities available to their non-athlete peers, including greater “job opportunities,” access to the
school’s “networks, and an identity with the school.”
Heckman Decl., supra, at 7, 14; see NCAA Bylaws
§ 1.3.1 ( “A basic purpose of [the NCAA] is to maintain
intercollegiate athletics as an integral part of the educational program and the athlete as an integral part
of the student body.”). In short, the benefits of amateurism permeate the life of the student-athlete, adding to the “richness and diversity” of “intercollegiate
athletics” and “higher education.” Board of Regents,
468 U.S. at 120.
The experience of amicus Jake Gibbons is a paradigmatic example:
The collegiate athletics model is a cornerstone institution for the development of our world’s future leaders. This
model supports opportunities for hundreds of thousands of young adults to
hone the skills that they will apply at
an elite competence for the rest of their
lives—in their careers, their communities, and in their households. It is this
unique scholar-athletic system that allows an individual like myself to chase
11
my athletic dreams while pursuing a
degree that will prepare me for a successful life. … Swimming for Texas
A&M University, I was afforded the opportunity to train in an unmatched facility, alongside Olympians, under the
guidance of renowned coaches. Further, I was pursuing a degree in Political Science with no clear career goal
yet, but knowing that I eventually
would be prepared to serve people
meaningfully.
Gibbons’s experience is typical of most studentathletes. See Heckman Decl., supra, at 12-16 (providing a similar account of the long-term benefits student-athletes derive from amateurism). Overall, 82%
of student-athletes reported being satisfied or completely satisfied with their campus experience—with
69% indicating a positive academic experience and
77% indicating a positive social experience. See Trial
Tr., Dir. Test. of Todd Petr at 1828:2-24, Dkt. No.
1066. Furthermore, student-athletes have higher
graduation rates than comparable non-athletes, and
their graduation rates have increased consistently in
the 26 years since the NCAA began to collect this
data. See id. at 1811:18-1815:1. 8
All student-athletes can receive these meaningful
benefits through their participation in intercollegiate
athletics. There are, undoubtedly, some young athletes who would rather focus more on their athletics
8
See also NCAA, Graduation
nyurl.com/y5ej3d95 (visited Feb. 8, 2021).
Rates,
https://ti-
12
and be paid to play their respective sports. Those athletes always have the option to leave college and join
the professional league of their choice at any point. Or
they may play professionally upon graduating from
high school. 9 But the aforementioned benefits of intercollegiate athletics are only possible because of the
carefully delineated incentives that the NCAA’s rules
establish. Ultimately, if these benefits are to endure,
the “preservation of the [amateur] student-athlete in
higher education” must remain a central tenet of the
regulation of intercollegiate athletics. Board of Regents, 468 U.S. at 120. That is precisely what the history of intercollegiate athletics confirms.
9 Even for those leagues like the NBA that currently restrict
draft eligibility immediately out of high school, there are options.
See Michael McCann, Examining What a Change to the NBA’s
One-and-Done Rule Could Mean for All Involved, Sports Illustrated (Mar. 3, 2019), tinyurl.com/1jffn7w3 (further noting that
the NBA has proposed “that the eligibility rule be changed by
the 2022 NBA Draft”). For example, a basketball player can
choose to play for a year in the NBA’s minor league (the G
League), another domestic professional league, or overseas, and
then enter the NBA draft. See id. Or he can simply work for a
year prior to entering the NBA—as was the case of a current
NBA player who decided to skip college and accept a one-milliondollar internship with New Balance prior to joining the NBA. See
Marc Stein, A New Option for N.B.A. Prospects: The Million-Dollar Intern, The N.Y. Times (Oct. 22, 2018), https://tinyurl.com/y7qsu5z9.
13
B. History confirms the necessity of the
NCAA’s careful regulation to preserve
amateurism in college sports.
Adherence to the ideals of student-athletics has
not been without challenges. The “persistent and perhaps inevitable desire to ‘win at all costs’” and “unbridled competition in the economic sphere” leads “to a
wide range of competitive excesses that prove harmful
to students and institutions alike.” Id. at 121 (White,
J., dissenting). Here, as is often the case, history bears
witness to such excesses and the need for correction.
“At the beginning of intercollegiate athletics[,]
some colleges recruited athletes who had no connection to the college,” and who “simply wore the school’s
jersey for pay.” 10 One such example: the non-student
coxswain that Harvard recruited to beat Yale in the
1852 regatta. 11 Some colleges also compensated successful student-athletes with extravagant perks and
benefits (many of them under the guise of being education-related) for their athletic performance. An illustrative account: a “successful athlete at Yale” who,
“in the latter part of the nineteenth century,” was provided “a suite of rooms in the dorm, free meals at the
university club, a one-hundred-dollar scholarship,”
and a job as “an agent of the American Tobacco Com-
10 Robert Sandy, The Economics of US Intercollegiate Sports
and the NCAA, in HANDBOOK ON THE ECONOMICS OF SPORT 396
(Wladimir Andreff & Stefan Szymanski eds., 2006).
11 See Rodney K. Smith, The National Collegiate Athletic Association’s Death Penalty: Educators Punish Themselves and
Others, 62 Ind. L.J. 985, 989 (1987).
14
pany” for which he “receiv[ed] a commission on cigarettes sold in New Haven, plus a 10-day paid vacation
to Cuba.” 12
Such excesses, “including the payment of compensation to the best athletes,” and no one else, were “well
entrenched by the latter part of the nineteenth century.” 13 Like the amici on this brief, defenders of collegiate athletics in the late nineteenth century, many
of whom were former student-athletes, vocally opposed these pay-for-play schemes. 14 These individuals
“scoffed at the notion that any college athlete could be
paid,” perceiving these excesses as a threat to the very
existence of collegiate athletics and to the many positive benefits derived therefrom. 15
Amidst the impending threat to the existence of
the student-athlete, and the increasing (sometimes
fatal) violence of the infamous “flying wedge formation” in college football, the NCAA was formed. 16
12 Id. at 989 n.23 (quoting B. Spears & R. Swanson, HISTORY
OF SPORT AND PHYSICAL ACTIVITY IN THE UNITED STATES 208
(1978)).
13 Id. at 989 (emphasis added).
14 See McDavis, Amateurism, supra note 6, at 288.
15 Id.
16 See Smith, supra note 11, at 990-91 (discussing the reasons for the creation of NCAA). The flying wedge “consisted of
players locking arms, then heading upfield in a V-formation with
a runner located inside.” Willie T. Smith III, Tribute to Flying
Wedge a Starting Point for NCAA’s Hall, USA TODAY, Mar. 30,
2000, at 7C. Largely because of this formation, eighteen studentathletes died and over one hundred were injured. See Smith, supra note 11, at 990.
15
When the NCAA was created, it was made clear that
one of its primary roles would be, as it is still now, to
“preserve amateurism,” 17—“a tradition that might
otherwise die” but for its careful and intentional
preservation, Board of Regents, 468 U.S. at 120. The
goal has always been, and still is, to “retain a clear
line of demarcation between college athletics and professional sports.” NCAA Bylaws §1.3.1.
To that end, for more than a century, the NCAA,
through its member institutions and student-athlete
representatives, has required student-athletes to “be
amateurs in an intercollegiate sport.” NCAA Bylaws
§ 2.9; see also O’Bannon v. NCAA, 802 F.3d 1049, 1054
(9th Cir. 2015) (“One of the NCAA’s earliest reforms
of intercollegiate sports was a requirement that the
participants be amateurs.”). The NCAA’s core definition of amateurism has remained remarkably consistent throughout the years. In 1909, the NCAA
defined an amateur student-athlete as “one who enters and takes part in athletic contests purely in obedience to the play impulses or for the satisfaction of
purely play motives and for the exercise, training, and
social pleasure derived”—not for “any material or economic advantage or reward.” 18 Similarly, now, the
NCAA mandates that a student-athlete “loses amateur status”—and is thus ineligible to compete in intercollegiate sports—if she or he exchanges “athletics
skill … for pay in any form.” NCAA Bylaws
17 Smith, supra note 11, at 991 (cleaned up).
18 McDavis, Amateurism, supra note 6, at 295 (quoting Howard J. Savage et al., American College Athletics, Report of the
Carnegie Foundation for the Advancement of Teaching, Bulletin
No. 23, at 42 (1929)).
16
§ 12.1.2(a). The rules emphasize that the “participation” of student-athletes in college sports “should be
motivated primarily by education and by the physical,
mental and social benefits to be derived.” Id. § 2.9.
And for that reason, all “student-athletes should be
protected from exploitation by professional and commercial enterprises.” Id.
C. The NCAA’s compensation caps are
essential to the tradition of amateurism.
One critical component of the NCAA’s efforts to
define and preserve amateurism are its caps on the
compensation available to student-athletes. Like all
the NCAA’s rules, the compensation caps are designed, adopted, and implemented by the studentathlete representatives and member institutions that
comprise the NCAA. The caps represent the judgment
of these stakeholders—those affected the most by the
NCAA’s rules—that reasonable limits on compensation will enhance student-athletes’ educational experiences without turning college sports into
professional “minor league[s].” Board of Regents, 468
U.S. at 102.
Consistent with this judgment, the NCAA’s compensation caps are carefully limited. The primary permissible allowance is the “cost of attendance”:
Student-athletes may receive financial aid up to the
full amount of the cost of attendance at their schools.
NCAA Bylaws §§ 2.13, 15.01.06, 15.1; see also 20
U.S.C. § 1087kk. The types of benefits available as
part of the cost of attendance are set by Congress,
though schools can make limited adjustments on a
“case-by-case basis.” 20 U.S.C. §§ 1087ll, 1087tt; see
17
also NCAA Bylaws § 15.02.2.1. Schools also may use
certain authorized funds to meet student-athletes’ actual expenses related to their participation in intercollegiate athletics or academic programs. See NCAA
Bylaws §§ 15.01.6.1, 16.11.8. For instance, schools
may pay for student-athletes’ jerseys, equipment, athletics-related medical bills, and expenses associated
with travel to games and tournaments. See, e.g.,
NCAA Bylaws §§ 16.3-16.5, 16.8. Finally, schools may
offer small non-cash awards to recognize exceptional
academic or athletic achievement. Id. § 16.1.
As this Court and others have recognized, these
rules (like other related NCAA bylaws) undergird the
“revered tradition of amateurism in college sports.”
Board of Regents, 468 U.S. at 120; see also Deppe v.
NCAA, 893 F.3d 498, 501-02 (7th Cir. 2018); Smith v.
NCAA, 139 F.3d 180, 187 (3d Cir. 1998), vacated on
other grounds, 525 U.S. 459, 464 n.2 (1999); McCormack v. NCAA, 845 F.2d 1338, 1343-1345 (5th Cir.
1988). They do so in at least three ways.
First, by preventing athletes from receiving pay
or unlimited benefits, the rules help maintain “a clear
line of demarcation between college athletics and professional sports.” Hennessey v. NCAA, 564 F.2d 1136,
1153 (5th Cir. 1977); NCAA Bylaws § 1.3.1. As such,
the rules embody what this Court has recognized:
“[T]o preserve the character and quality of” intercollegiate athletics, student-athletes “must not be paid”
to play their sport. Board of Regents, 468 U.S. at 102.
Distinguishing between impermissible payments and
permissible awards and benefits requires careful
judgment, since “[t]here comes a point in time when,
18
by continuing to provide incidental expense[s], you really are crossing over” from amateurism into professionalism. Ex. 35, Dep. of Kevin C. Lennon at 63:1722, Dkt. No. 704-36.
Second, the limited benefits reinforce amateurism
by helping student-athletes meet the expenses of competing in intercollegiate sports and the academic demands of college. Amicus Cody McDavis’s experience
typifies the importance of these benefits. As a Division I basketball player at the University of Northern
Colorado, McDavis had a full athletic scholarship, his
books and meals were paid for, and he received tutoring on campus and even when traveling for games.
The benefits enabled McDavis—now a practicing lawyer—to effectively balance his educational objectives
with his athletic commitments. These benefits do not
erode amateurism in college sports because, simply,
“nobody considers the[m] to be pay.” 19-15566 (9th
Cir.), Dkt. No. 40, at ER170.
Third, the rules help prevent “[c]olleges with
more successful programs” from “taking advantage of
their success by expanding their programs, to the ultimate detriment of the whole system of intercollegiate athletics.” Hennessey, 564 F.2d at 1153. By
limiting the amount of benefits schools can offer top
athletic recruits, the rules help control the “[f]inancial
pressures upon many members, not merely to ‘catch
up’, but to ‘keep up,’” which “threaten both the competitive, and the amateur, nature of the programs.”
Id.
Unsurprisingly, the NCAA’s rules around amateurism have been updated over the past century to
19
accommodate new realities and balance the many
competing interests at stake—all without altering the
fundamental principle that student-athletes do not
get paid to play their sport. But these alterations are
not an invitation to ignore the revered tradition of amateurism, much less dismiss it as a “pretext” or a
“moving goalpost.” Resp’t’s Br. in Opp’n at 7, 9. To the
contrary, the ongoing balancing encompassed in these
rules reflects the reality that, to preserve amateurism
within the boundaries set forth in the Sherman Act,
the NCAA needs “ample latitude” to superintend college athletics. Board of Regents, 468 U.S. at 120; Law
v. NCAA, 134 F.3d 1010, 1022 n.14 (10th Cir. 1998)
(stating that the NCAA must receive “plenty of room
under the antitrust laws to preserve the amateur
character of intercollegiate athletics”); McCormack,
845 F.2d at 1345 (“That the NCAA has not distilled
amateurism to its purest form does not mean its attempts to maintain a mixture containing some amateur elements are unreasonable.”). The lower courts’
failure to accord the NCAA this latitude risks undermining the very enterprise of amateur college sports.
II. The Lower Courts’ Rulings Endanger The
Tradition Of Amateurism By Inviting A
Compensation Arms Race.
The decisions below imperil the tradition of amateurism in college sports in two fundamental ways.
First, they toss out several of the NCAA’s carefully
calibrated compensation limits, replacing them with
an amorphous standard that begs to be exploited. Second, they undermine the Association’s ability to guard
against these abuses. Now, freed of any meaningful
limits on student-athlete compensation, schools will
20
compete in an arms race to provide the biggest benefits to recruit and retain a few select student-athletes.
Although it acknowledged that Board of Regents
“define[s] amateurism to exclude payment for athletic
performance,” the Ninth Circuit chose instead to draft
its own definition. In re NCAA Athletic Grant-in-aid
Cap Antitrust Litig., 958 F.3d 1239, 1258 (9th Cir.
2020) (Alston). According to the Ninth Circuit, “Not
paying student-athletes unlimited payments unrelated to education is what makes them amateurs.” Id.
(cleaned up). Applying this novel definition, the court
held that nearly all the NCAA’s rules limiting “education-related benefits” are unlawful because they are
not needed to prevent schools from offering athletes
unlimited payments unrelated to education. Id. at
1258-63. The court thus affirmed the district court’s
permanent injunction prohibiting the NCAA from
limiting any of the following so-called “education-related benefits”:
[C]omputers, science equipment, musical instruments and other items not
currently included in the [cost of attendance] but nonetheless related to
the pursuit of various academic studies; post-eligibility scholarships for undergraduate, graduate, and vocational
programs at any school; tutoring;
study-abroad expenses; and paid posteligibility internships.
Id. at 1251 (quotation marks omitted).
21
What makes a benefit “education-related” is unclear, and the opportunities for abuse leap off the
page. As the NCAA points out, facilitating a $500,000
Nike internship might be justified, for example, if an
athlete were majoring in sports management. See
NCAA Pet. at 28. A Mercedes Benz could be offered to
help an athlete get to class, or even to practice (after
all, a student-athlete’s educational experience involves both academic and athletic components).
Airpods Max, Fender guitars, and other high-value
items all could be on the table under the guise of maximizing the educational experience of these studentathletes, well beyond that of their peers. Even cash
payments are now permissible, since the injunction
further requires the NCAA to allow salary-like “academic achievement” payments of almost $6,000 to
every student-athlete merely for being eligible to play.
Id. at 1251, 1262 & n.18.
Making matters worse, the lower courts’ decisions
hinder the NCAA’s ability to guard against these
abuses. Any attempt to define what it means to be “education-related” must be approved by the district
court. In re NCAA Athletic Grant-in-aid Cap Antitrust
Litig., 4:14-md-02541-CW, 2019 WL 1593939, at *1
(N.D. Cal. Mar. 8, 2019). Yet, under the lower courts’
impermissibly fact-intensive application of this
Court’s rule of reason test, see Br. for NCAA at 17-34,
any such rule risks being struck down if (inevitably)
a plaintiff’s attorney can think of an alternative that
is even marginally less restrictive on student-athlete’s compensation. The decisions below thus undermine the “ample latitude” the NCAA needs to
22
maintain amateurism in college sports, Board of Regents, 468 U.S. at 120, leaving schools free to spend
almost limitlessly on student-athletes’ compensation.
Such spending is sure to occur. Schools experience
near-constant “pressure to ‘keep up with the Joneses’
by increasing spending on recruiting talented players
… in order to remain competitive with rival schools.”
Law, 134 F.3d at 1012. To avoid “falling to the bottom
line,” schools pour significant sums into “attracting
top high-school players,” even when that requires taking on significant debts. 19 These same pressures also
lead some schools to circumvent the NCAA’s limitations on compensation. Indeed, schools have been doing so since the NCAA’s inception, 20 and modern-day
examples are not hard to find. 21 Without a meaningful limit on the amount of benefits schools may offer
top athletes, this “frantic spending race” 22 will be
much worse.
19 Andrew Zimbalist, How Financial Pressures Can Lead to
Athletic Scandals, The Chronicle of Higher Education (Nov. 9,
2018), https://tinyurl.com/y2bn6tgd.
20 See Alfred C. Yen, Early Scholarship Offers and the
NCAA, 52 B.C. L. Rev. 585, 595-96 (2011) (noting that many universities failed to abide by the NCAA’s initial regulation, offering
“[s]cholarships, under-the-table payments, and special jobs with
alumni,” which “made it clear that universities and coaches valued athletic victory and its associated benefits more than any
obligation to live up to the ideals of amateur sport”).
21 See, e.g., Billy Witz & Adam Zagoria, Oklahoma State
Punished by N.C.A.A. for Role in Basketball Recruiting Scandal,
The N.Y. Times (June 5, 2020), tinyurl.com/4ekfd6ys.
22 Will Hobson & Steven Rich, Playing in the Red, The
Wash. Post. (Nov. 23, 2015), https://tinyurl.com/yyj5uva4.
23
The Ninth Circuit cursorily dismissed these concerns, speculating that it “cannot have been the district court’s intent” to allow such abuses. Alston, 958
F.3d at 1261 (cleaned up). The question is not what
the court intended, however; it is what was done. By
removing key constraints on schools’ ability to compensate student-athletes, the decisions below will superheat the “financial arms race of big-time college
sports,” 23 enabling schools to offer virtually unlimited
benefits to recruit and retain “the best athletes”—the
very excesses that led to the NCAA’s formation more
than 100 years ago. 24 As elaborated in the next section, while a few student-athletes may benefit from
this compensation arms race, the vast majority will
not.
III. A Compensation Arms Race Undermines
The Tradition Of Amateurism By Degrading
The Athletic And Academic Experiences Of
Most Student-Athletes.
The concern with concentrating resources among
the top-performing student-athletes at the expense of
all others is not new. Addressing a crowd of Harvard
students on the eve of the NCAA’s formation, President Theodore Roosevelt cautioned that “the athletic
spirit is essentially democratic. Our chief interest
should not lie in the great champions in sport”—
namely, those who are the most talented, the most
23 Id.
24 Smith, supra note 11, at 989.
24
successful, or those who generate the most revenue. 25
“On the contrary[,] our concern should be most of all
to widen the base, the foundation, in athletic sports:
to encourage in every way a healthy rivalry which
shall give to the largest possible number of students
the chance to take part in vigorous outdoor games.” 26
The decision below turns the democratic focus of
college sports that President Roosevelt envisioned on
its head, encouraging schools to bestow extravagant
gifts and benefits on a few, elite student-athletes and
recruits. Left out in the cold will be the hundreds of
thousands of other student-athletes, who risk seeing
their athletic programs defunded or cut as schools divert resources to keep up with their rivals’ spending.
Student-athletes’ educational experiences are
also at risk. As schools cut non-revenue-generating
athletics programs, so too will they cut the scholarships on which countless student-athletes rely. Those
lucky enough to be on the receiving end of schools’ increased largess will suffer too, as the pressures to prioritize athletics over education increase.
A. Many college athletics programs risk being
defunded or cut.
Only a very few schools turn a profit on their athletics programs, and those profits come almost exclusively from football and men’s basketball. Allowing
25 President Theodore Roosevelt, Play and Work, Speech Be-
fore Harvard Students (Feb. 23, 1907), printed in The Harvard
Graduates Magazine 15:57 (1906-1907), at 779.
26 Id.
25
schools to offer student-athletes virtually unlimited
educational benefits will exacerbate this system of
haves and have-nots. Specifically, it will make it
harder for small athletics programs to compete,
threaten the viability of non-revenue-generating
sports such as baseball and volleyball, and drive away
fans who watch college sports precisely because student-athletes play for the love of the game, not for
pay.
1. A common refrain, chorused by Respondents
and the decisions below, is that “everyone is getting
rich off college sports … except the students.” 27 But
that is deeply misleading. Of the more than 1,100 colleges and universities competing in NCAA sports
(representing almost 20,000 teams and nearly a half
million student-athletes), 28 only 25 reported net profits from their athletic departments in the 2018-19
season. 29 These rarified few have one thing in common: they are part of the so-called Power Five—the
nation’s five wealthiest athletic conferences. 30 The 65
schools in the Power Five pull in billions more than
27 Rob Goldberg, US Sen. Chris Murphy Issues Report Call-
ing for NCAA to Pay Student-Athletes, Bleacher Report (Mar. 28,
2019), https://tinyurl.com/yxgowj54.
28 NCAA, What is the NCAA?, https://tinyurl.com/yxm2nogd
(visited Feb. 8, 2021).
NCAA, Finances of Intercollegiate Athletics, https://tinyurl.com/y4rzfv8t (visited Feb. 8, 2021).
29
30 Id.
26
all the other NCAA schools combined. 31 Yet, even
among the Power Five schools, the median athletics
program operates at a net loss of $7 million. 32
It is worse for everyone else. Every single one of
the 285 non-Power Five schools in Division I 33 lost
money in 2019, with a median deficit of $23 million
per school. 34 And not a single Division II or III school
made money on its athletics programs. 35 For these
universities, “to continue operating means relying on
millions of dollars in debt, funding from their main
campus and student fees.” 36 “[P]oorer departments
such as Rutgers have taken millions in mandatory
fees from students and siphoned money away from academic budgets to try to keep up” with the few ultrawealthy athletics departments in the Power Five. 37
31 Paula Lavigne, Rich Get Richer in College Sports as
Poorer Schools Struggle to Keep Up, ESPN (Sept. 2, 2016),
https://tinyurl.com/y2sllfhs.
29.
32 NCAA, Finances of Intercollegiate Athletics, supra note
33
NCAA, DI Non-Autonomy Members,
nyurl.com/yxaz664o (visited Feb. 8, 2021).
29.
https://ti-
34 NCAA, Finances of Intercollegiate Athletics, supra note
35 Id.
36 Cody J. McDavis, Paying Students to Play Would Ruin
College Sports, The N.Y. Times (Feb. 25, 2019), https://tinyurl.com/y38mm2c3.
37 Hobson & Rich, supra note 22.
27
Stark disparities also exist across sports. Among
the dozens of different NCAA sports, football and basketball are the most profitable by far. Division I football, in particular, garners more revenue than the
next 35 other sports combined, grossing an average of
$31.9 million per school. 38 By comparison, men’s basketball (the second-highest grossing sport) pulls in a
per-school average of $8.1 million; women’s basketball grosses $1.8 million; and rowing brings in just
$932,646. 39 Schools use most of their revenue from
football and men’s basketball to fund less popular
sports that tend to lose money. 40
2. By enabling schools to offer virtually unlimited
“educational” benefits, the Ninth Circuit’s decision
will further undermine the viability of most athletic
programs in the country. The 25 revenue-generating
Power Five schools will “be able to easily lure the biggest name recruits to play for” their revenue-generating football and men’s basketball programs based on
the promise of exorbitant benefits, “creat[ing] a static
environment where the best schools stay on top and
38 Victoria Lee Blackstone, How Much Money Do College
Sports Generate?, ZACKS (Jan. 28, 2019), https://tinyurl.com/y3yej4cf.
39 Id.
40 Denise-Marie Ordway, Power Five Colleges Spend Football, Basketball Revenue on Money-losing Sports: Research,
Journalist’s
Resource
(Sept.
10,
2020),
https://tinyurl.com/y5mfopoh.
28
other schools have virtually no chance of ever competing with them.” 41 All other schools will be faced with
a choice: find a way to keep up, or risk losing top talent to schools that can. To find the money, these
schools may divert funds from less profitable sports
programs or cut them altogether. 42 Even those schools
that do earn money on their athletics departments
may need to divert money that currently funds nonrevenue-generating sports toward increasingly lavish
expenditures on their football and men’s basketball
programs. 43
These risks are not theoretical. After the NCAA
began allowing Division I schools to offer stipends to
cover certain expenses included in the cost of attendance, schools expanded funding for their revenue-generating sports programs and offset the new costs with
cuts to less popular sports. One such example: Shortly
after the NCAA loosened its compensation rules,
North Dakota State University announced it would
offer cost-of-attendance scholarships in 16 sports, at
an annual cost of $600,000. The school’s main rival,
41 Matt Mikesic, Paying Student Athletes is Bad News for
College Sports, The Hawk Newspaper (Oct. 8, 2019), https://tinyurl.com/y4eb2mvg.
42 McDavis, Paying Students to Play Would Ruin College
Sports, supra note 36; see also Meghan Lopez, Should College
Athletes Be Paid? Passions High on Both Sides of the Debate,
Denver7 (Mar. 12, 2019), https://tinyurl.com/y55p63qb (noting
that “paying players big salaries for some sports could mean that
other, less profitable programs might be cut”).
43 See McDavis, Amateurism, supra note 6, at 281-82 (2018)
(noting that increased costs for men’s basketball and football
programs “will inevitably lead” to cuts in other sports subsidized
by those programs).
29
the University of North Dakota, followed suit six days
later, cutting five teams to cover the added expense. 44
The University of Idaho, too, placed its championshipwinning women’s soccer program on the chopping
block 45 just a year after the school announced it was
expanding its football team and providing recruits full
cost-of-attendance scholarships. 46 The university only
changed its mind only after amicus Kelly Dopke—
then-captain of the women’s soccer team—persuaded
officials that “our success not only on the soccer field,
but in the classroom and around this community
should not go unnoticed,” and that cutting the program would “leave indelible repercussions on the University as a whole.”
Recent budget cuts further illuminate the chasm
between the few revenue-generating sports teams
and the rest of intercollegiate athletics. More than 80
Division I programs have been cut in the past year, 47
most being non-revenue-generating sports like track,
44 McDavis, Paying Students to Play Would Ruin College
Sports, supra note 36.
45 Chadd Cripe, U of I Soccer Players Fight to Save Their
Program Days After Stunning News, Idaho Statesmen (Apr. 10,
2018), https://tinyurl.com/y33crzlg.
46 Josh Wright, Idaho’s Move to FCS Has Big Funding Im-
plications, The Spokesman-Review (Oct. 14, 2016), https://tinyurl.com/y44uausq.
47 Emily Giambalvo, When A College Cuts A Sports Program, These Are The Lives Upended, The Wash. Post (Oct. 6,
2020), https://tinyurl.com/yy4ogul4.
30
gymnastics, and swimming. 48 These “sports are getting the axe because they don’t generate much revenue,” while “schools that play big-time sports have
gone to remarkable lengths to save their football and
basketball seasons.” 49 The loss is particularly pronounced in sports that supply the U.S. Olympic and
Paralympic pipeline. In May 2020, for example, the
University of Akron eliminated its cross-country program, just four years after its star athlete Clayton
Murphy became the first American man to win an
Olympic medal in the 800-meter run since 1992. 50
Murphy was crushed, telling reporters, “They threw
away a major part of what made myself and others go
to that university.” 51
3. Limitless spending on a few student-athletes
may have another consequence: Fans’ interest may
wane. Surveys have consistently found that “[t]he appeal of college athletics is driven by” perceptions that
48 Bill Whitaker, Some Colleges Axing “Secondary Sports”
Like Gymnastics and Tennis as Pandemic Continues, 60 Minutes
(Dec. 6, 2020), https://tinyurl.com/y6cvpqvy.
49 Id.
50 Ross Dellenger & Pat Forde, A Collegiate Model in Crisis:
The Crippling Impact of Schools Cutting Sports, Sports Illustrated (June 11, 2020), https://tinyurl.com/y264l3r5.
51 Id. Another example: Clemson recently cut its men’s track
program—which has produced 22 Olympians and 16 NCAA
championship titles—not long after it opened a new football
practice facility with a slide, bowling alleys, and a mini-golf
course. See Eben Novy-Williams, Clemson Track Cuts Reveal
Differences in NCAA Budgets and Accounting, Yahoo! (Nov. 11,
2020), https://tinyurl.com/y3o95jog.
31
athletes are “playing for the love of the sport, teamwork and [not] for pay.” Ex. 72, BIGTEN-GIA 124849,
at 853, 860-61, Dkt. 704-73. Indeed, sports fans are
more than twice as likely to believe that student-athletes “play for the love of the sport” than professional
athletes. Ex. 83, Sports Property Comparison, at 11,
Dkt. No. 704-84; see also O’Bannon, 802 F.3d at 1073
(“[T]he amateur nature of collegiate sports increases
their appeal to consumers.”). These findings are consistent with amici’s personal experiences: Students
and alumni want to root for their fellow classmates,
not poorly paid professionals.
Ultimately, student-athletes will bear the brunt
of these harms. As amicus Cody McDavis puts it, if
students are paid money or unlimited benefits, “student-athletes who are working just as hard and have
dedicated their lives to it will not have an opportunity
to go play the sport they want at the college they
choose.” 52
B. Student-athletes’ educational experiences
will also suffer.
While a few top athletes go to college partly to increase their prospects of playing professional sports,
most (if not all) go to college to obtain an education.
As President Roosevelt noted in the above-referenced
speech, “it is a very poor business indeed for a college
man to learn nothing but sport.” 53
52 Lopez, supra note 42.
53 Roosevelt, supra note 25, at 780.
32
The compensation arms race will harm the educational experience of student-athletes in at least three
significant ways. First, it will make post-secondary
education less accessible, especially to those who can
least afford it. Second, it will detract from the due emphasis that must be given to educational objectives.
And third, it will further separate the student-athlete
from the actual student body and university community.
1. Many student-athletes depend upon their athletic scholarships to receive a college education. But
in the fallout from the inevitable compensation arms
race that will ensue from the decisions below, schools
will struggle to come up with resources to recruit or
retain top athletic talent. Not only are non-revenuegenerating athletic programs likely to be eliminated
(see § III.A. above), but many athletic scholarships
may also be reduced, if not cut altogether. 54
Fewer athletic scholarships translates into less
access to education. Many student-athletes in high
school will no longer be able to pursue a college education. This reality will, of course, have a disproportionate effect on disadvantaged communities that
already face significant obstacles to access post-secondary education (and the knowledge, job opportunities, and higher wages that generally come with a
college degree). As amici on this brief can personally
attest, without access to athletic scholarships, higher
education simply would not be a viable option for
54 See McDavis, Amateurism, supra note 6, at 331-32 & n.
420, 422.
33
many student-athletes. Amicus Kelly Dopke was confronted with this risk first-hand when, as noted
above, the University of Idaho informed her that the
women’s soccer team would be cut. “Without the opportunity to play soccer collegially,” she told the university at the time, “my academic aspirations to
pursue a career in the medical field would not be possible.”
By the same token, schools may also charge students more tuition and fees to cover their increased
athletics expenses. 55 But many students already pay
vast sums of money to fund athletic programs—often
unknowingly. For example, one junior at James Madison University in Virginia discovered that ten percent of the annual cost of her education went “solely
to finance the school’s sports teams,” a fact she only
discovered “by visiting and searching the school’s
website.” 56 And other schools use the athletics fees
they charge students “to make up for low ticket
sales.” 57 These problems would only be exacerbated
under the lower courts’ regime, making college education further inaccessible.
2. The decisions below also create new incentives
that prioritize athletic achievement over educational
objectives, upsetting the balance the NCAA has
sought to strike in its rules.
55 Id. at 280.
56 Merritt Enright et al., Hidden figures: College Students
May Be Paying Thousands in Athletic Fees and Not Know It,
NBC News (Mar. 8, 2020), https://tinyurl.com/uku9w9s.
57 Id.
34
Amicus Cody McDavis can attest to these powerful incentives. “Being a Division I athlete, I understand how those pressures [to perform athletically]
would increase exorbitantly if I was being paid an actual dollar figure,” or equivalent in-kind benefits. 58 “I
would focus less on my academics and more on my
athletics … .” 59 Because these benefits will be available only to a select few based on their athletic performance, students-athletes will face much more
pressure to prioritize their athletics over their education, exacerbating the stress to perform that studentathletes already experience.
Prioritizing athletics over education is harmful
for student-athletes because the prospects of going
“pro” for most student-athletes are quite low—almost
negligible when it comes to playing in the NBA, the
WNBA, and the NFL. 60 And even for those who wind
up playing professionally, their average careers are
quite limited. “The average NFL career,” for example,
“lasts 3.3 years.” 61
Some may cite these facts as a reason to justify
the monetization of athletic talent in college. But far
from it, they serve to highlight the value of a college
education and the need for reasonable regulations
58 Lopez, supra note 42.
59 Id.
60 See NCAA, Estimated Probability of Competing in Profes-
sional Athletics (Apr. 8, 2020), https://tinyurl.com/y4qydstv.
61 John Keim, With Average NFL Career 3.3 years, Players
Motivated to Complete MBA Program, ESPN (July 26, 2016),
https://tinyurl.com/y5wj8zku.
35
that balance student-athletes’ often competing incentives. As a former NFL quarterback said, “When you
focus on football so much, you get blinded to the outside world and what’s going on around you,” which is
“why you keep your mind sharp on other things so
that when football is over, you” can say, “‘OK, now I
don’t have to start completely anew.’” 62
3. Lastly, the decisions below risk further separating student-athletes from the broader university
community, undermining the value of their educational experience. As noted above, one benefit of amateurism is that it allows the integration of studentathletes into the student body. See NCAA Bylaws
§ 1.3.1. But such integration can hardly happen if top
student-athletes are further showered with benefits
unavailable to the rest of the student body (including
most student-athletes)—even less so if the bill is
footed through increased (and most likely hidden) tuition and fees. These are the sort of excesses that Justice White described as “harmful to students and
institutions alike,” and that must be avoided in order
to preserve amateurism. Board of Regents, 468 U.S.
at 121 (White, J., dissenting).
CONCLUSION
The judgment of the court of appeals is harmful to
student-athletes and does not afford the NCAA the
“ample latitude” this Court has said it needs to superintend college athletics within the boundaries of the
Sherman Act. It must be reversed.
62 Id.
36
Respectfully submitted,
E. Joshua Rosenkranz
ORRICK, HERRINGTON
& SUTCLIFFE LLP
51 West 52nd Street
New York, NY 10019
Mark Davies
Counsel of Record
Katherine M. Kopp
Cesar A. Lopez-Morales
Zachary Hennessee
ORRICK, HERRINGTON
& SUTCLIFFE LLP
Will Stute
1152 15th Street
ORRICK, HERRINGTON
& SUTCLIFFE LLP
Washington, DC 20005
1152 15th Street
(202) 339-8400
Washington, DC 20005 mark.davies@orrick.com
February 8, 2021
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.