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

Supreme Court briefMar 10, 2021

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Nos. 20-512, 20-520

IN THE

Supreme Court of the United States

NATIONAL COLLEGIATE ATHLETIC ASSOCIATION,

Petitioner,

SHAWNE ALSTON, ET AL.,

Respondents.

AMERICAN ATHLETIC CONFERENCE, ET AL.,

Petitioners,

SHAWNE ALSTON, ET AL.,

Respondents.

On Writs of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF FOR THE PLAYERS ASSOCIATIONS OF

THE NATIONAL FOOTBALL LEAGUE,

THE NATIONAL BASKETBALL ASSOCIATION,

THE WOMEN’S NATIONAL BASKETBALL

ASSOCIATION, THE NATIONAL WOMEN’S

SOCCER LEAGUE, AND NATIONAL COLLEGIATE

PLAYERS AS AMICI CURIAE

IN SUPPORT OF RESPONDENTS

ANDREW S. TULUMELLO

Counsel of Record

KRISTEN C. LIMARZI

ARIANNA M. SCAVETTI

GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Avenue, N.W.

Washington, D.C. 20036-5306

(202) 955-8657

atulumello@gibsondunn.com

Counsel for Amici Curiae

TABLE OF CONTENTS

INTEREST OF AMICI CURIAE ................................ 1

INTRODUCTION AND SUMMARY OF

ARGUMENT ......................................................... 1

ARGUMENT ............................................................... 4

College Athletes Work Extraordinarily

Hard At Their Sports At Deep Personal

Sacrifice ................................................................. 4

II. The NCAA’s Amateurism Rules Harm the

Lives of College Athletes ...................................... 9

A. The NCAA’s Amateurism Rules Deprive

College Athletes of Educational

Opportunities .................................................. 9

B. The NCAA’s Amateurism Rules Deprive

College Athletes of Financial Security ........ 12

III. The NCAA’s Concept of “Amateurism”

Cannot Justify Price Fixing................................ 15

A. Board of Regents Does Not Support the

NCAA ............................................................ 15

B. Amateurism Is An Empty And

Arbitrary Rationale ...................................... 16

C. The NCAA Cannot Justify Its Rules By

Defining College Sports As a PriceFixed Product................................................ 21

D. The NCAA’s Appeal To Its Educational

Mission Cannot Justify Price Fixing ........... 25

E. The NCAA’s Parade of Horribles Is

Unfounded and Contrary to the Trial

Record ........................................................... 26

CONCLUSION .......................................................... 31

TABLE OF AUTHORITIES

Cases

Broad. Music, Inc. v. Columbia Broad.

Sys., Inc.,

441 U.S. 1 (1979) .................................................. 22

FTC v. Ind. Fed'n of Dentists,

476 U.S. 447 (1986) .............................................. 25

FTC v. Super. Ct. Trial Lawyers Ass’n,

493 U.S. 411 (1990) .............................................. 25

Law v. NCAA,

134 F.3d 1010 (10th Cir. 1998) ............................ 25

Nat’l Soc’y of Prof’l Eng’rs v. United

States,

435 U.S. 679 (1978) ........................................ 21, 31

NCAA v. Bd. of Regents of Univ. of

Okla.,

468 U.S. 85 (1984) .................... 3, 15, 16, 22, 24, 25

Standard Oil Co. v. FTC,

340 U.S. 231 (1951) .......................................... 2, 31

United States v. Socony-Vacuum Oil

Co.,

310 U.S. 150 (1940) ................................................ 3

United States v. Virginia,

518 U.S. 515 (1996) .............................................. 27

Constitutional Provisions

U.S. Const. pmbl........................................................ 30

iii

Other Authorities

2020-21 NCAA Division I Manual,

https://bit.ly/3vcl0Hy................................ 10, 18, 19

Alex Scarborough, Bama Boosters Pay

Off Saban’s Home (Oct. 27, 2014),

https://es.pn/2BSG5MJ ........................................ 18

Andy Staples, What Has the NCAA—or

Anyone—Learned from the College

Basketball Black Market’s Time on

Trial?, Sports Illustrated (May 9,

2019), https://bit.ly/32yR3CJ ............................... 30

Anthony P. Carnevale et al., Learning

While Earning: The New Normal,

Georgetown Univ. Ctr. for Educ. &

the Workforce (2015),

https://bit.ly/3szv4sc............................................. 12

Brent Schrotenboer, Colleges Still Have

Millions to Fire Football Coaches

Despite Claiming Financial Trouble

from Coronavirus, USA Today (Dec.

17, 2020), https://bit.ly/3uFWcrp ......................... 26

Brian Rosenberg, How the N.C.A.A.

Cheats Student Athletes, N.Y. Times

(Oct. 3, 2017),

https://nyti.ms/2xR9VhV ..................................... 10

Bureau of Labor Statistics, Table B-2

Average Weekly Hours and Overtime

of All Employees on Private Nonfarm

Payrolls by Industry Sector,

Seasonally Adjusted (Mar. 5, 2021),

https://bit.ly/2ZMeJDS ........................................... 5

Chad W. Pekron, The Professional

Student-Athlete: Undermining

Amateurism as an Antitrust Defense

in NCAA Compensation Challenges,

24 Hamline L. Rev. 24 (2000) .............................. 21

Charles Robinson, Renegade Miami

Football Booster Spells Out Illicit

Benefits to Players, Yahoo! Sports

(Aug. 16, 2011),

https://yhoo.it/2BC1D0V ..................................... 30

Cheri D. Mah et al., Poor Sleep Quality

and Insufficient Sleep of a Collegiate

Student-Athlete Population, 4 Sleep

Health 251 (2018),

https://bit.ly/2B2xHtR ............................................ 8

Chris Knoester & B. David Ridpath,

Should College Athletes Be Allowed

to Be Paid? A Public Opinion

Analysis, Soc. of Sport J. 8 (2020) ....................... 23

Christian Dennie, Amateurism Stifles a

Student-Athlete’s Dream, 12 Sports

Law J. 221 (2005) ................................................... 9

Christopher A. Callanan, Advice for the

Next Jeremy Bloom: An Elite

Athlete’s Guide to NCAA

Amateurism Regulations, 56 Case

Western Reserve L. Rev. 687 (2006) ................... 10

Daniel E. Lazaroff, The NCAA in Its

Second Century: Defender of

Amateurism or Antitrust Recidivist?,

86 Or. L. Rev. 329 (2007) ..................................... 16

Daniel Libit & Michael McCann, ProNCAA Athletes Petitioning SCOTUS

Struggle to Stay on Message,

Sportico (Mar. 2, 2021),

https://bit.ly/2NPbhX4 ......................................... 13

David A. Grenardo, The Continued

Exploitation of the College Athlete:

Confessions of a Former College

Athlete Turned Law Professor, 95 Or.

L. Rev. 101 (2017) ................................................ 13

Derek Volner, More than 3.8 Million

Viewers for the NCAA Women’s

Basketball National Championship,

ESPN Press Room (Apr. 4, 2017),

https://bit.ly/3qqofaW ........................................... 28

Duke University, Finding On-Campus

Employment, https://bit.ly/3r2UCgN .................. 12

Elisia J.P. Gatmen, Academic

Exploitation: The Adverse Impact of

College Athletics on the Educational

Success of Minority Student-Athletes,

10 Seattle J. for Social Justice 509

(2011), https://bit.ly/3riQ46g ................................. 7

Gabe Feldman, A Modest Proposal for

Taming the Antitrust Beast, 41 Pepp.

L. Rev. 249 (2014) ................................................ 16

Gregory Wilson & Mary Pritchard,

Comparing Sources of Stress in

College Student Athletes and NonAthletes, 7 Athletic Insight 1 (2005),

https://bit.ly/2Mcp9XD ........................................... 8

Howard J. Savage et al., American

College Athletics, Carnegie Found.

for the Advancement of Teaching

(1929) .............................................................. 18, 23

Jake New, NCAA Confirms Escort

Allegations at Louisville, Inside

Higher Ed (Oct. 21, 2016),

https://bit.ly/3kNmGCH....................................... 30

James Madison, Speech in Virginia

Convention (Dec. 2, 1829) .................................... 30

Janet E. Simon & Carrie L. Docherty,

Current Health-Related Quality of

Life Is Lower in Former Division I

Collegiate Athletes than in NonCollegiate Athletes, Am. J. Sports

Medicine (2013),

https://bit.ly/335vpWU ........................................... 9

Jasmine Harris, It's Naive to Think

College Athletes Have Time for

School, The Conversation (Oct. 9,

2018), https://bit.ly/3qrO4Hu ................................ 6

John Locke, Second Treatise of

Government (T. Peardon ed., 1952) ..................... 30

Julia Mullaney, These Are the Highest

Paid NFL Coaches in 2018 (Plus,

How They Compare to College

Football Coaches’ Salaries),

Sportscasting (Nov. 9, 2018),

https://bit.ly/2W9rS7w ......................................... 17

vii

Katelyn Ohashi, Opinion: Everyone

Made Money Off My N.C.A.A.

Career, Except Me, N.Y. Times (Oct.

9, 2019), https://nyti.ms/2NYcyug ...................... 14

Kimberly Elchlepp, ESPN’s Women’s

College World Series, Super

Regional, Regular Season Softball

Viewership Surges, ESPN Press

Room (June 6, 2019),

https://bit.ly/2MTKvMv ....................................... 28

Laine Higgins, Attendance at Women’s

College Basketball Games Is

Surging, Wall St. J. (Mar. 5, 2020),

https://on.wsj.com/38izagA .................................. 27

Lee Goldman, Sports and Antitrust:

Should College Students Be Paid to

Play, 65 Notre Dame L. Rev. 206

(1990) .................................................................... 21

Lev Akabas & Daniel Libit, Saban and

Day Contracts Reveal Money on the

Line in Championship Game: Data

Viz, Sportico (Jan. 11, 2021),

https://bit.ly/3b2EIh6 ........................................... 22

Lindsay Gibbs, Ending the Sham of

NCAA Amateurism Will Not End

Title IX, ThinkProgress (Mar. 30,

2018), https://bit.ly/37Sxv13 ................................ 29

Lindsay Gibbs, It’s Time to View Ending

NCAA Amateurism as a Women’s

Rights Issue, Too, Power Plays (Nov.

1, 2019), https://bit.ly/2O2vVCG ......................... 28

viii

Marc Edelman, Don’t Feed (or Shelter)

the Athletes: The Absurdity of NCAA

Amateurism in 2015, Forbes

SportsMoney (Feb. 28, 2015),

https://bit.ly/3dGGYvZ ......................................... 13

Michael T. Maloney & Robert E.

McCormick, An Examination of the

Role that Intercollegiate Athletic

Participation Plays in Academic

Achievement, 28 J. Hum. Resources

555 (1993), https://bit.ly/2MMmdkJ ...................... 6

Milton Friedman, Capitalism and

Freedom (1962) ..................................................... 29

NCAA, Estimated Probability of

Competing in Professional Athletics

(Apr. 8, 2020), https://bit.ly/3qQVdSJ ................. 14

NCAA, Questions and Answers on

Name, Image and Likeness (Jan.

2021), https://bit.ly/2PoyIXH ............................... 14

Nick Martin, College Football Coaches

Are Making Millions Off A Useless

Metric, Deadspin (Dec. 10, 2015),

https://bit.ly/3uB9OUB ........................................ 20

Non Profit Light, American Athletic

Conference (June 3, 2020),

https://bit.ly/3b2gzXR .......................................... 22

Patrick Hruby, Amateurism Isn’t

Educational: Debunking the NCAA’s

Dumbest Lie, Vice (June 14, 2017),

https://bit.ly/3uxrpgq ..................................... 11, 13

Patrick Hruby, The NCAA Says Paying

Athletes Hurts Their Education.

That’s Laughable., Wash. Post (Sept.

20, 2018), https://wapo.st/3aXOoZZ .................... 12

Paul Kennedy, Crowd Count: UCLAUSC Breaks Women’s College

Attendance Record, SoccerAmerica

(Nov. 4, 2017), https://bit.ly/2Orr2TU ................. 27

Phillip E. Areeda, Antitrust Law (1986) ............... 3, 25

Ramogi Huma et al., How the NCAA’s

Empire Robs Predominantly Black

Athletes of Billions in Generational

Wealth (July 31, 2020),

https://bit.ly/3qP2nXI..................................... 17, 22

Sally Jenkins, The College Football

Playoff Won’t Pay Athletes, While Its

Selection Committee Stays at the

Ritz, Wash. Post (Aug. 22, 2019),

https://wapo.st/2NzDgr3 ...................................... 17

Sen. Chris Murphy, Madness, Inc.: How

Everyone Is Getting Rich Off College

Sports – Except the Players (Mar. 28,

2019), https://bit.ly/3qhK648 ............................... 26

Shaun R. Harper, Black Male StudentAthletes and Racial Inequities in

NCAA Division I College Sports:

2018 edition, Univ. of S. Calif., Race

& Equity Ctr. (2018),

https://bit.ly/3c1hW8D ........................................... 7

Steve Berkovitz et al., Top NCAAF

Assistant Coach Pay, USA Today

(Dec. 16, 2020),

https://bit.ly/2PmGrDy ........................................ 18

Steve Berkovitz et al., Top NCAAF

Coach Pay, USA Today (Nov. 17,

2020), https://bit.ly/2pPIHs5 ............................... 17

Steve Berkovitz et al., Top NCAAF

Strength Coach Pay, USA Today

(Dec. 16, 2020),

https://bit.ly/33JLD8g .......................................... 18

Tara Sullivan, In Punishing UMass for

a $252 Violation, the NCAA’s

Hypocrisy Is on Full Display, Boston

Globe (Oct. 24, 2020),

https://bit.ly/3kmGvk2 ......................................... 20

Theo Francis, Many S&P 500 CEOs Got

a Raise in 2018 That Lifted Their

Pay to $1 Million a Month, Wall St.

J. (Mar. 17, 2019),

https://on.wsj.com/2WfhBGT ............................... 17

Tom Green, Auburn’s New Football

Facility Estimated to Cost $91.9

Million, Ala. Media Grp. (Jan. 27,

2021), https://bit.ly/3qR5Xk0 ............................... 19

University of Notre Dame, Student

Jobs, https://bit.ly/3bL5d9O ................................ 11

Walter Byers & Charles H. Hammer,

Unsportsmanlike Conduct (1995) ........................ 18

Whitney Medworth, Nike Finally Made

Sabrina Ionescu Jerseys, and They

Sold Out in Hours, SB Nation (Nov.

13, 2019), https://bit.ly/2MTJXpV ....................... 28

Will Hobson & Steven Rich, Colleges

Spend Fortunes on Lavish Athletic

Facilities, Chi. Tribune (Dec. 23,

2015), https://bit.ly/2otXwQS .............................. 19

INTEREST OF AMICI CURIAE1

The National Football League Players Association, the National Basketball Players Association, the

Women’s National Basketball Players Association,

and the National Women’s Soccer League Players Association (collectively, the “Professional Associations”)

are the exclusive collective bargaining representatives of players in the National Football League, the

National Basketball Association, the Women’s National Basketball Association, and the National

Women’s Soccer League. Most of the Professional Associations’ members are (like the class members in

this case) former Division I athletes. The National

Collegiate Players Association is a 501(c)(3) nonprofit

advocacy group that serves as the only independent

voice for college athletes across the nation. The Associations share a strong interest in ensuring that members receive enriching educational and athletic experiences during college. The Associations also have

unique insights into the impact of the NCAA’s amateurism rules on the lives of college athletes, and, in

particular, into the economic, social, and professional

harms the NCAA’s rules exact.

INTRODUCTION AND

SUMMARY OF ARGUMENT

A. College sports are a multi-billion dollar business. The NCAA’s amateurism rules ensure that everyone can benefit financially except the “student athletes” who produce the product in the first place. For

Pursuant to Supreme Court Rule 37.6, no counsel for a party

authored this brief in whole or in part, and no person or entity

other than amici or their counsel made a monetary contribution

to this brief’s preparation. The parties have consented to the filing of this brief.

college athletes who will never play professional

sports—which is all but a handful of them—the

NCAA’s amateurism rules deprive them of their only

opportunity in life to receive any economic benefits or

enhanced education-related opportunities for their

athletic talent and hard work. It makes college sports

one of the very few sectors of American society where

adults are unable to monetize their labor and talents

at all.

The sins of amateurism also run much deeper.

The NCAA’s amateurism rules restrict athletes’ opportunities for intellectual, social, and personal

growth—in ways both big and small. As the NCAA

has acknowledged, its amateurism rules discourage

athletes from graduating. They isolate athletes on

campus and away from friends and family. They deter

any athlete from starting a business or writing a book.

In short, the NCAA’s amateurism rules impede the

human flourishing of the men and women they ostensibly protect.

B. While the antitrust laws embody “faith in the

value of competition,” Standard Oil Co. v. FTC, 340

U.S. 231, 248 (1951), the NCAA’s amateurism rules

abhor it. The NCAA admits that its Division I Manual

prescribes horizontal agreements to eliminate competition. These rules fix the benefits any school may offer to a college athlete at NCAA-defined “legitimate

educational expenses and modest achievement

awards.” NCAA Br. 37; see also id. at 7, 27, 29, 46 n.4.

Amateurism is not a sufficiently concrete or intelligible justification for this horizontal price fixing. To

the extent it has any practical meaning, amateurism

defines “college sports” as “sports subject to price fixing.” As the NCAA says repeatedly, for college sports

to be different than professional sports “athletes must

not be paid.” NCAA Br. 3, 6, 27, 34, 38, 45–46, 49.

But as a matter of basic antitrust doctrine, a product

cannot be defined to include “price fixing” as an essential element. Moreover, as the district court found,

college sports are differentiated from professional

sports because the athletes are students—not because

they are uncompensated.

This Court’s decision in NCAA v. Board of Regents

of University of Oklahoma, 468 U.S. 85 (1984), does

not save the NCAA. Board of Regents invalidated

rules restricting competition for television rights to

NCAA games as unreasonable restraints of trade.

The Court’s dicta describing student-athletes as unpaid does not immunize all limitations on educationrelated compensation from antitrust scrutiny.

The NCAA’s plea for “latitude” in light of its “educational mission” is equally unavailing. Even if amateurism rules did foster educational enrichment (they

do the exact opposite), courts should “not inquire

whether the restraint promotes the ‘public interest’

but only whether it increases competition.” Phillip E.

Areeda, Antitrust Law, ¶ 1504, at 381 (1986). Finally,

the NCAA’s speculative arguments about the harms

that might arise from market forces in college athletics are nothing more than “the age-old cry of ruinous

competition,” which this Court has consistently held

is never a defense to price-fixing conspiracies. United

States v. Socony-Vacuum Oil Co., 310 U.S. 150, 221–

22 (1940).

While the NCAA relies on deference and dicta, the

players rely on well-supported factual findings on a

full-blown trial record. That record demonstrates that

that “amateurism” is not a valid justification for denying college athletes the same right to earn as every

other American. The judgment of the court of appeals

should be affirmed.

ARGUMENT

College Athletes Work Extraordinarily Hard

At Their Sports At Deep Personal Sacrifice

Division I college athletics are intense and demanding. The day begins at dawn with early morning

film sessions, followed by five hours of class, nearly

five hours of team meetings and practice, and another

hour or two of tutoring or study sessions before the

day ends. Alec James Depo., ECF No. 1116-13 at 245

(describing daily routine for University of Wisconsin

football player); Trial Tr. (Jenkins), ECF No. 1041 at

747–51 (describing daily routine for Clemson football

player).2 Division I football players spend on average

over 40 hours per week on athletic activities during

the football season, while Division I men’s and

women’s basketball players average nearly 35 hours

per week. ER674. 3 At many schools and for many

athletes, the demands can be even more onerous. Jt.

Trial Ex. 0014-0006 (Pac-12 report finding that athletes averaged 50 hours a week on athletics during

seasons).

“ECF No.” cites refer to the electronic docket in In re Nat’l Collegiate Athletic Ass’n Athletic Grant-in-Aid Cap Antitrust Litig.,

No. 4:14-md-2541 (N.D. Cal.) (Wilken, J.).

“ER” citations are to the excerpts of the record filed with the

Ninth Circuit.

When combined with academic duties, college athletes end up working 75-to-80 hour weeks, on average,

every week during their months-long seasons. ER677.

That is more than double the average workweek for

the typical American worker (35 hours). See Bureau

of Labor Statistics, Table B-2 Average Weekly Hours

and Overtime of All Employees on Private Nonfarm

Payrolls by Industry Sector, Seasonally Adjusted

(Mar. 5, 2021), https://bit.ly/2ZMeJDS.

The offseason is no better for most athletes.

NCAA data show that more than two-thirds of Division I football players and Division I men’s basketball

players report spending as much or more time on athletic activities in the offseason. ER678. Almost 60%

of Division I women’s basketball players report the

same. Id.

The consequences of repeatedly spending upwards of 40 hours per week on athletics, including

many hours of intense physical exertion, are unsurprising. In pursuit of their sport, college athletes frequently sacrifice (1) their academic goals, (2) their extracurricular pursuits, and (3) their own mental and

physical health.

First, for many college athletes, academics necessarily takes a backseat to athletics. The demands of

Division I athletics all but guarantee that outcome.

Whereas attending practice, games, and meetings is

almost always either officially or practically mandatory, athletes have more flexibility in choosing, attending, and studying for classes. It is only natural

for the discretionary to give way to the obligatory, particularly when athletes are told by their coaches and

others that their “primary focus” should be athletics.

Trial Tr. (Shawne Alston) 670:12–21. The primacy of

athletics inevitably leads to “academic sacrifices.” Jt.

Trial Ex. 0014-0016 (Pac-12 report); Jasmine Harris,

It’s Naïve to Think College Athletes Have Time for

School,

The

Conversation

(Oct.

2018),

https://bit.ly/3qrO4Hu (Division I football and men’s

basketball players spend three times as many hours

per week on athletics as on academics). For example,

plaintiff Justine Hartman, a former basketball player

at U.C. Berkeley, testified at trial that because of her

six-hours-per-day practice routine, she would often

“literally have to run to make it to class,” and that

“sometimes it would be pointless” because class would

have “another 20 minutes left, and I hadn’t showered

or eaten.” Trial Tr. 797:20–23.

More poignantly, college athletes are often forced

to sacrifice their preferred majors and classes based

on their athletic obligations. NCAA data reveal that

athletic commitments prevented 51% of Division I

women’s basketball players, 50% of Division I Football

Bowl Subdivision (“FBS”) football players, and 34% of

Division I men’s basketball players from enrolling in

the classes they wanted. Pls.’ Trial Ex. 0059-0006

(NCAA GOALS study). A Pac-12 report found that

athletes are “discouraged from taking certain majors

from the outset [of college] due to their athletic demands” and often “change their majors … either because they cannot schedule the classes and other requirements they need, or they cannot keep up with

their academic demands due to their sport’s time demands.” Jt. Trial Ex. 0014-0016.

It is no surprise, then, that studies consistently

have found a negative relationship between athletic

participation and academic performance, particularly

in revenue-producing college sports. See, e.g., Michael

T. Maloney & Robert E. McCormick, An Examination

of the Role that Intercollegiate Athletic Participation

Plays in Academic Achievement, 28 J. Hum. Resources

555 (1993), https://bit.ly/2MMmdkJ; Elisia J.P. Gatmen, Academic Exploitation: The Adverse Impact of

College Athletics on the Educational Success of Minority Student-Athletes, 10 Seattle J. for Social Justice

509 (2011), https://bit.ly/3riQ46g; Shaun R. Harper,

Black Male Student-Athletes and Racial Inequities in

NCAA Division I College Sports: 2018 edition, Univ. of

Calif.,

Race

Equity

Ctr.

(2018),

https://bit.ly/3c1hW8D.

Second, the athletic demands placed upon college

athletes significantly limit their opportunities outside

the classroom. Most athletes, for example, “don’t have

the time” to get part-time jobs. Trial Tr. (Hartman)

810:15. Studies show that part-time employment is

something many athletes want. Jt. Trial Ex. 00140006 (Pac-12 report). The Pac-12 found that time

commitments make it “very difficult” for athletes to

participate in internships. Jt. Trial Ex. 0014-0016.

The story is the same for student clubs and organizations. Plaintiff Martin Jenkins testified that “football

time requirements” prevented him from remaining a

part of Clemson’s entrepreneurship club. See Trial Tr.

791:3–20; see also Trial Tr. (Hartman) 810:12–13.

Third, the rigors of college athletics can cause athletes’ health to suffer, both during and after college.

Division I football and basketball players average less

than 6.2 hours of sleep per night, with Division I football players getting less than 5.7 hours a night. Pls.’

Trial Ex. 0059-0025 (NCAA GOALS study). As a result, almost half of Division I football and basketball

players are so tired from the physical demands of their

sports that they “struggle to find energy to do other

things.” Id. at 0044; see also Cheri D. Mah et al., Poor

Sleep Quality and Insufficient Sleep of a Collegiate

Student-Athlete Population, 4 Sleep Health 251

(2018), https://bit.ly/2B2xHtR (“Collegiate athletes

frequently experience poor sleep quality, regularly obtain insufficient sleep, and commonly exhibit daytime

sleepiness.”).

Sleep deprivation, combined with extreme time

pressure, can adversely affect athletes’ mental health.

According to NCAA data, more than a third of Division I men’s basketball and football players experience intense stress, feeling that “difficulties were piling up so high that [they] could not overcome them.”

Pls.’ Trial Ex. 0059-0043 (NCAA GOALS study).

Other studies have found that college athletes report

more stress than non-athletes across a “wide variety

of variables,” including “having a lot of responsibilities,” “not getting enough time for sleep,” and “having

heavy demands from extracurricular activities.”

Gregory Wilson & Mary Pritchard, Comparing

Sources of Stress in College Student Athletes and NonAthletes, 7 Athletic Insight 1, 4 (2005),

https://bit.ly/2Mcp9XD.

Athletes’ physical health is also consistently, and

unavoidably, at risk. The grueling physical activity

required to be a Division I athlete leads to high rates

of injuries—some of which can be career ending and

permanently life altering. According to one study of

hundreds of former Division I athletes between ages

40 and 65, more than twice as many athletes reported

sustaining major injuries and experiencing chronic injuries compared to non-athletes. See Janet E. Simon

& Carrie L. Docherty, Current Health-Related Quality

of Life Is Lower in Former Division I Collegiate Athletes than in Non-Collegiate Athletes, Am. J. Sports

Medicine (2013), https://bit.ly/335vpWU.

College athletes unavoidably carry the heavy consequences of their labor in their bodies and minds—

and will do so for the rest of their lives. And due to

the NCAA’s amateurism rules, notwithstanding these

sacrifices, they are precluded from receiving any enhanced educational opportunities or economic benefits

during their college years, unlike all other students

(and nearly all other American adults).

II. The NCAA’s Amateurism Rules Harm the

Lives of College Athletes

The NCAA’s Amateurism Rules Deprive College Athletes of Educational Opportunities

The NCAA claims that its “core mission” is “to facilitate intercollegiate sports as an important component of the educational opportunities offered by its

members schools.” NCAA Br. 15. But the NCAA’s

amateurism rules impair these opportunities—to a

nearly farcical degree.

Take Division I bylaw 12.5.2.1, which prohibits

athletes from receiving money for promoting any

“commercial product.” The NCAA has interpreted

that bylaw to prohibit a University of Oklahoma baseball player from promoting his own book about overcoming brain cancer and losing his father to leukemia.

See Christian Dennie, Amateurism Stifles a StudentAthlete’s Dream, 12 Sports Law J. 221, 235–37 (2005).

The NCAA has also tried to use the bylaw to bar a

Northwestern University football player—and theater major—from appearing in a feature film. See

Christopher A. Callanan, Advice for the Next Jeremy

Bloom: An Elite Athlete’s Guide to NCAA Amateurism

Regulations, 56 Case Western Reserve L. Rev. 687,

691–92 (2006). Or consider Division I bylaw 12.4.4,

which prohibits college athletes who start a business

from using their “name, photograph, appearance or

athletics reputation” to promote the business. Athletes who have been caught in the crosshairs of this

rule include two swimmers from the University of

Iowa who started a T-shirt screening business, and a

cross-country runner at Texas A&M who started a water bottle company. See Brian Rosenberg, How the

N.C.A.A. Cheats Student Athletes, N.Y. Times (Oct. 3,

2017), https://nyti.ms/2xR9VhV.

Normally, colleges and universities would laud

and encourage exceptional extracurricular accomplishments such as these; the NCAA responds instead

with threats of athletic ineligibility. None of this is

lost on college athletes, who, stripped completely of

economic opportunities by the NCAA, can only marvel

as they pass by the school bookstore with their jersey

number hanging for sale in the window. Meanwhile,

multiple NCAA bylaws authorize the NCAA and its

member institutions to use athletes to endorse schoolowned products and activities in a wide variety of circumstances. See NCAA Division I Manual § 12.5.1.

“Amateurism” can have no integrity in the eyes of athletes whose earning potential has been taken from

them in a context so laden with contradictions.

Most disturbingly, the NCAA’s amateurism rules

also hamper academic achievement. The graduation

rate of football players in top conferences is 20% lower

than that of non-athletes; for men’s basketball play-

ers, the graduation rate is more than 30% lower. Patrick Hruby, Amateurism Isn’t Educational: Debunking the NCAA’s Dumbest Lie, Vice (June 14, 2017),

https://bit.ly/3uxrpgq. The NCAA admitted in this

case that voiding its amateurism rules and increasing

athlete compensation would increase graduation

rates. See Defs.’ Opp’n to Pls.’ Am. Joint Mot. for

Class Cert. at 11, ECF No. 216. The NCAA conceded

that “many of those student-athletes who now leave

college to play professional football or basketball

would, if they were paid to play college sports, stay in

school longer.” Id. (emphasis added). Antitrust doctrine has gone topsy-turvy when the amateurism rationale for price-fixing also works to the detriment of

students’ academic lives.

The NCAA suggests that permitting colleges to offer certain education-related benefits to athletes

would have “serious negative effects on the educational experience of many student-athletes.” NCAA

Br. 49; see also Br. of Former Student-Athletes as

Amici Curiae in Support of Pet’rs (“Former Athletes

Br.”) 31–35. But there is no record evidence—let

alone a reason—to believe that compensating athletes

(or providing them enhanced educational benefits)

would have any adverse effect on their studies.

Neither the NCAA nor any of its member schools

prohibits non-athletes from earning money while pursuing their academic studies out of concern for their

educational well-being. Most colleges offer students

on-campus job opportunities, as lab assistants, teaching assistants, campus tour guides, and so on. See,

e.g., University of Notre Dame, Student Jobs,

https://bit.ly/3bL5d9O (“In addition to earning money,

student employees may develop professional skills,

experience, and networks that lead to success in work

and life after graduation.”); Duke University, Finding

On-Campus Employment, https://bit.ly/3r2UCgN

(“Many students work during their time at Duke,

holding jobs in a wide range of locations and environments. Finding campus employment is an important

part of your professional development as you prepare

to launch your career[.]”).

College students balance paid labor and academic

studies all the time. Between 70 and 80 percent of undergraduate students are employed, and about 40 percent of undergraduates work at least 30 hours per

week. Anthony P. Carnevale et al., Learning While

Earning: The New Normal, Georgetown Univ. Ctr. for

Educ.

the

Workforce

(2015),

https://bit.ly/3szv4sc. It insults college athletes to

suggest that they alone, unlike the rest of their peers,

could not achieve this balance. If a budding Hollywood movie star can work on a Star Wars film while

enrolled at Harvard without jeopardizing her education, the dedicated men and women who play college

sports can do the same. Patrick Hruby, The NCAA

Says Paying Athletes Hurts Their Education. That’s

Laughable., Wash. Post (Sept. 20, 2018),

https://wapo.st/3aXOoZZ (referring to Natalie Portman’s movie work).

The NCAA’s Amateurism Rules Deprive College Athletes of Financial

Security

The NCAA’s amateurism rules also undermine

college athletes’ financial well-being. Unable to monetize their athletic talent and lacking time to work a

paying job, the athletes who form the backbone of a

billion-dollar business often find themselves unable to

purchase basic necessities—including food. David A.

Grenardo, The Continued Exploitation of the College

Athlete: Confessions of a Former College Athlete

Turned Law Professor, 95 Or. L. Rev. 101, 106 & n.20

(2017). More than 40% of Division I football and men’s

basketball players report not having “enough money

to buy the things I need (e.g. groceries).” Pls.’ Trial

Ex. 0059-0041 (NCAA GOALS study) (emphasis omitted). Retired NFL running back Darren McFadden—

one of the former student athletes identified in the

brief filed by college players supporting the NCAA—

was unable to afford a $50 parking ticket. Daniel

Libit & Michael McCann, Pro-NCAA Athletes Petitioning SCOTUS Struggle to Stay on Message, Sportico

(Mar. 2, 2021), https://bit.ly/2NPbhX4. Students who

turn elsewhere for food and shelter risk being declared ineligible for college sports. Marc Edelman,

Don’t Feed (or Shelter) the Athletes: The Absurdity of

NCAA Amateurism in 2015, Forbes SportsMoney

(Feb. 28, 2015), https://bit.ly/3dGGYvZ (describing a

formerly homeless Baylor University running back removed from the roster after accepting housing from an

acquaintance).

Even for those athletes who can afford necessities,

the NCAA’s amateurism rules prevent them from

earning income that could be used to participate in

normal social activities like eating out with friends or

going on dates—basic economic freedoms that their

fellow students are afforded, but that athletes are denied. Hruby, Amateurism Isn’t Educational, supra.4

Amici suggest that athletes’ ability to be compensated for the

commercial use of their name, image, and likeness are a separate

issue not implicated here. Former Athletes Br. 9 n.5. Not so.

Even as the NCAA considers whether to loosen its restrictions on

Depriving athletes of compensation while in college is particularly problematic because, for most athletes, college sports provide their only opportunity in

life to monetize their athletic talents. In 2019, just

over 4% of draft-eligible Division I men’s basketball

players were selected in the NBA draft; less than 4%

of draft-eligible Division I football players were selected in the NFL draft; and less than 3% of draft-eligible Division I women’s basketball players were selected in the WNBA draft. See NCAA, Estimated

Probability of Competing in Professional Athletics

(Apr. 8, 2020), https://bit.ly/3qQVdSJ.

The challenges are even greater for athletes in

sports with limited or no professional opportunities

beyond college. In women’s gymnastics, for example,

athletes generate sizeable followings, sell out arenas,

and garner enormous viewing numbers on YouTube,

but they have no professional path to follow after college. Katelyn Ohashi, Opinion: Everyone Made Money

Off My N.C.A.A. Career, Except Me, N.Y. Times (Oct.

9, 2019), https://nyti.ms/2NYcyug.

athletes benefiting from their name, image, and likeness, it continues to insist any changes must not “undermin[e] the NCAA’s

model of amateur intercollegiate athletics.” NCAA, Questions

and Answers on Name, Image and Likeness (Jan. 2021),

https://bit.ly/2PoyIXH. This undoubtedly falls within the scope

of rules setting the “standards of amateurism” that the NCAA

believes should be held procompetitive as a matter of law and

exempt from detailed rule-of-reason analysis. NCAA Br. 27. After all, the NCAA’s view in this Court is that “student-athletes

are not paid to play at all.” Id. at 36; see also id. at 46 (“not paying student-athletes is precisely what makes them amateurs”)

(citation and emphasis omitted).

III. The NCAA’s Concept of “Amateurism” Cannot Justify Price Fixing

The NCAA’s entire rationale for eliminating competition among colleges is the inherent value of “amateurism”—the idea that college athletes should be unpaid. That empty concept cannot justify the NCAA’s

price fixing and nothing this Court has said suggests

otherwise.

Board of Regents Does Not Support

the NCAA

For decades, the NCAA has defended its anticompetitive restrictions by relying on dicta from the

Court’s decision in NCAA v. Board of Regents of University of Oklahoma, 468 U.S. 85, 101 (1984). Board

of Regents does not immunize the NCAA’s amateurism rules from scrutiny.

Board of Regents held that the NCAA’s restrictions on the number of annually televised college

football games violated the antitrust laws. 468 U.S.

at 105–13. The Court stated that the NCAA’s restraint was subject to rule-of-reason analysis, rather

than per se illegality, because NCAA rules “enable[] a

product to be marketed which might otherwise be unavailable . . . and hence can be viewed as procompetitive.” Id. at 102 (emphasis added). The Court cited a

“myriad of rules” that “must be agreed upon” to enable

competition, including “such matters as the size of the

field, the number of players on a team, and the extent

to which physical violence is to be encouraged or proscribed.” Id. at 101. The Court then discussed other

NCAA rules that appeared to help the NCAA preserve

the identity of college sports, the defining feature of

which the Court understood to be the sports’ identification “with an academic tradition.” Id. To preserve

that product, the Court said, “athletes must not be

paid, must be required to attend class, and the like.”

Id. at 102 (emphasis added). It is this last observation

that has formed the entire foundation for the NCAA’s

amateurism defense in the decades since.

That passing observation simply cannot bear the

legal and factual weight the NCAA has placed upon it.

This Court did not deem NCAA’s amateurism rules

“procompetitive as a matter of law” or hold they must

be “upheld without a trial or ‘detailed’ rule-of-reason

analysis[.]” Contra NCAA Br. 26–27. Rather, the

Court held that because the NCAA’s rules “can be

viewed” as procompetitive, they should not be struck

down without a rule-of-reason analysis. 468 U.S. at

102 (emphasis added). The Court said nothing at all

about any potential procompetitive benefits of the

NCAA’s compensation caps. The NCAA’s attempt to

turn that dictum into a holding that forecloses Respondents’ claims is not credible.5

Amateurism Is An Empty And Arbitrary Rationale

The NCAA and its member institutions proclaim

that the “‘tradition of amateurism’ ‘adds richness and

diversity to intercollegiate athletics.’” NCAA Br. 6.

They deride critics for suggesting the NCAA’s “adherence to its conception of amateurism is a sham.” Id.

The dicta from Board of Regents has been “criticized frequently

and consistently,” over the ensuing decades. Daniel E. Lazaroff,

The NCAA in Its Second Century: Defender of Amateurism or Antitrust Recidivist?, 86 Or. L. Rev. 329, 353 (2007) (collecting

sources); see also Gabe Feldman, A Modest Proposal for Taming

the Antitrust Beast, 41 Pepp. L. Rev. 249, 251 (2014).

at 29. But it is not the NCAA’s adherence to amateurism that is a “sham.” The “sham” is claiming as procompetitive a rule that everyone who touches college

athletics may profit handsomely from the sport except

for the athletes who produce it.

The disparities are well documented but forceful

and startling. College athletes often struggle to get

by, but the NCAA, college administrators, and coaches

live comfortable lives—if not lives of luxury. Sally

Jenkins, The College Football Playoff Won’t Pay Athletes, While Its Selection Committee Stays at the Ritz,

Wash. Post (Aug. 22, 2019), https://wapo.st/2NzDgr3.

Mark Emmert, the president of the NCAA, earns

nearly $4 million in salary each year. The salaries of

the commissioners of top athletic conferences range

from $2 million to $5 million. Even college athletic

directors average more $1 million in annual salary.

Ramogi Huma et al., How the NCAA’s Empire Robs

Predominantly Black Athletes of Billions in Generational Wealth 4 (July 31, 2020), https://bit.ly/3qP2nXI.

Total annual pay for Division I college football head

coaches can approach $11 million per year—more

than most NFL head coaches and nearly as much as

the average CEO at an S&P 500 company;6 assistant

Steve Berkovitz et al., Top NCAAF Coach Pay, USA Today

(Nov. 17, 2020), https://bit.ly/2pPIHs5; Julia Mullaney, These Are

the Highest Paid NFL Coaches in 2018 (Plus, How They Compare

to College Football Coaches’ Salaries), Sportscasting (Nov. 9,

2018), https://bit.ly/2W9rS7w (estimating that only one NFL

coach makes more than $10 million); Theo Francis, Many S&P

500 CEOs Got a Raise in 2018 That Lifted Their Pay to $1 Million

Month,

Wall

St.

(Mar.

17,

2019),

https://on.wsj.com/2WfhBGT.

coaches’ salaries now top $2.5 million per year,7 and

even strength coaches make almost $750,000.8 Boosters often supplement these salaries by providing millions more in direct cash payment to the coaches. 9

Meanwhile, the athletes whose hard work pays for

these salaries are told to find fulfillment from the

“physical, mental and social benefits to be derived”

from athletics. NCAA Division I Manual § 2.9.10

Amateurism is arbitrary because the concept is

undefined and malleable. The term does not appear

anywhere in the NCAA’s 600-plus page bylaws, and

NCAA officials have no idea what it means. ER25

(former SEC Commissioner: “I’ve never been clear on

… what is really meant by amateurism.”). The best

Steve Berkovitz et al., Top NCAAF Assistant Coach Pay, USA

Today (Dec. 16, 2020), https://bit.ly/2PmGrDy.

Steve Berkovitz et al., Top NCAAF Strength Coach Pay, USA

Today (Dec. 16, 2020), https://bit.ly/33JLD8g.

See Alex Scarborough, Bama Boosters Pay Off Saban’s Home,

ESPN.com (Oct. 27, 2014), https://es.pn/2BSG5MJ (“the Crimson

Tide Foundation paid off [head coach Nick] Saban’s $3.1 million

home in January 2013”).

For almost a century, the NCAA has perpetuated amateurism,

not out of reverence for any Olympic ideal, but instead, as the

NCAA’s own former Executive Director put it, as “a transparent

excuse for monopoly operations that benefit [non-athletes].”

Walter Byers & Charles H. Hammer, Unsportsmanlike Conduct

388 (1995). That much was clear at least as far back as 1929,

when a comprehensive report on college athletics described “the

university of the present day” as “eagerly” embracing amateur

football because it “wants popularity, but above all it wants

money and always more money. The athlete is the most available publicity material the college has.” Howard J. Savage et al.,

American College Athletics, Carnegie Found. for the Advancement of Teaching xv (1929) (“Carnegie Report”).

the NCAA can offer is to define amateurism “by reference to what they say it is not: namely, amateurism is

not ‘pay for play.’” Id. But even that is not entirely

accurate—athletes may receive some compensation in

exchange for their services. NCAA Br. 29 (acknowledging that athletes may receive cost of attendance,

“legitimate expenses” and “modest achievement

awards”). Amateurism provides no discernible or intelligible principle for determining whether the magic

line of “professionalism” is crossed at two post-eligibility scholarships or twenty (ER32); whether athleticperformance awards should be capped at $5,000 or

$100,000 (ER27–28); or whether schools should be allowed to pay for athletes’ loss-of-value insurance premiums (ER30).

The result is that arbitrariness is part of the

NCAA’s DNA. Under NCAA rules, tennis players may

accept up to $10,000 in prize money prior to collegiate

enrollment; football, basketball, and soccer players

may not. NCAA Division I Manual § 12.1.2.4. Auburn

University is free to lure recruits with a $91 million

football facility featuring “a players lounge, barbershop, two recording studios, [and] a flight simulator”

without threatening amateurism. Tom Green, Auburn’s New Football Facility Estimated to Cost $91.9

Million, Ala. Media Grp. (Jan. 27, 2021),

https://bit.ly/3qR5Xk0; see also Will Hobson & Steven

Rich, Colleges Spend Fortunes on Lavish Athletic Facilities,

Chi.

Tribune

(Dec.

23,

2015),

https://bit.ly/2otXwQS (describing “city-state”-like facilities with “sand volleyball courts, laser tag, movie

theater, bowling lanes, barber shop and other amenities”). But the University of Massachusetts’s inadvertent reimbursement of a $252 telephone jack in

two players’ apartment required vacating three years’

of victories for every member of the school’s women’s

tennis team. Tara Sullivan, In Punishing UMass for

a $252 Violation, the NCAA’s Hypocrisy Is on Full Display,

Boston

Globe

(Oct.

24,

2020),

https://bit.ly/3kmGvk2. The NCAA has no problem

with athletes receiving the cost of college attendance,

plus “books” and “a computer,” NCAA Br. 7—but insists that permitting schools to offer musical instruments to college athletes would “entirely eviscerate

the procompetitive distinction between college and

professional athletes,” id. at 49. The NCAA has no

problem with college athletes’ coaches receiving hundreds of thousands of dollars in compensation for the

athletes’ academic performance, Nick Martin, College

Football Coaches Are Making Millions Off A Useless

Metric,

Deadspin

(Dec.

10,

2015),

https://bit.ly/3uB9OUB (describing NCAA coaches’ bonuses based on athletes’ GPA and graduation rates),

but laments that “academic or graduation awards and

incentives” for the athletes themselves would be “the

very definition of a professional salary,” NCAA Br.

47–48, and would “fundamentally change the nature

of college sports,” College Conferences Br. 43.

The NCAA tries to wave off these profound and

amoral inconsistencies as merely “a disagreement

about how to implement the principle of amateurism

on the margins.” NCAA Br. 29. But the arbitrariness

of the NCAA’s rules demonstrates that amateurism

does no real analytical work and is meaningless as a

rationale—it is a malleable and continuously evolving

target whose only consistent function is to serve as a

pretext for price fixing.

The NCAA Cannot Justify Its Rules

By Defining College Sports As a

Price-Fixed Product

According to the NCAA, the “standards of amateurism” and “the mold” for college sports is that “athletes must not be paid.” NCAA Br. 27. Of course, preserving amateurism for its own sake cannot justify the

NCAA’s compensation rules. It is self-evident (and

settled law) that price fixing cannot be self-justifying.

See Nat’l Soc’y of Prof’l Eng’rs v. United States, 435

U.S. 679, 696 (1978) (“[T]he Rule of Reason does not

support a defense based on the assumption that competition itself is unreasonable.”).

It would make “a mockery of the antitrust laws”

to allow the NCAA to incorporate amateurism (i.e.,

price fixing) as an essential element of its “product.”

Lee Goldman, Sports and Antitrust: Should College

Students Be Paid to Play, 65 Notre Dame L. Rev. 206,

236 (1990). This is obvious in any other context. A

group of private law firms could not conspire to fix associate salaries on the theory that clients prefer lawyers who practice for the “love of the law.” Nor could

concert venues justify an agreement to limit payments

to non-headliner bands on the ground that they are

creating a new product of “amateur” concerts. See id.

A group of beef producers could not justify an agreement to fix an inflated price for “premium” beef on the

ground that the price restraint helps distinguish premium beef from regular beef. See Chad W. Pekron,

The Professional Student-Athlete: Undermining Amateurism as an Antitrust Defense in NCAA Compensation Challenges, 24 Hamline L. Rev. 24, 66 (2000).

The NCAA’s amateurism-as-a-product argument is

specious.

While this Court has held that price fixing might

be justifiable where “the agreement on price is necessary to market the product at all,” Broad. Music, Inc.

v. Columbia Broad. Sys., Inc., 441 U.S. 1, 23 (1979)

(emphases added), that is manifestly not the case

here. Even Board of Regents recognized that “[t]he

identification of [college sports] with an academic tradition differentiates college [sports] from and makes

it more popular than professional sports to which it

might otherwise be comparable[.]” 468 U.S. at 101–

02 (emphasis added).

Given the opportunity at trial, the NCAA failed to

establish that its compensation rules define a unique

product or spur consumer demand. See Bd. of Regents, 468 U.S. at 113 (defendant faces “a heavy burden of establishing an affirmative defense” to restraint on trade). All the NCAA could offer is a madefor-litigation survey (discredited by the district and

appellate courts) and anecdotal hearsay about the

connection between amateurism and consumer demand. ER41–42. The NCAA now points to lay testimony from Pac-12 Commissioner Larry Scott (salary:

$5.2 million 11 ), American Athletic Conference Commissioner Michael Aresco (salary: $1.9 million12), and

the Ohio State University athletics director Eugene

Scott (salary: $1.55 million13) to support its claim that

only amateurism can ensure consumer demand for

college sports. NCAA Br. 43–44. But the district

Huma, supra, at 4.

Non Profit Light, American Athletic Conference (June 3, 2020),

https://bit.ly/3b2gzXR.

Lev Akabas & Daniel Libit, Saban and Day Contracts Reveal

Money on the Line in Championship Game: Data Viz, Sportico

(Jan. 11, 2021), https://bit.ly/3b2EIh6.

court did not credit that testimony and made factual

findings to the contrary—factual findings which the

NCAA does not contest on appeal.

To the contrary, the district court correctly found

that eliminating restrictions on education-related

benefits would “only reinforce consumers’ perception

of student-athletes as students, thereby preserving

demand.” Pet. App. 43a. Consumer demand did not

wane after the NCAA itself loosened restrictions on

other education-related benefits. Id. at 20a, 36a. And

the latest research reveals that a majority of American adults support allowing college athletes to be paid

and that “support appears to be highest among passionate sports fans.” Chris Knoester & B. David Ridpath, Should College Athletes Be Allowed to Be Paid?

A Public Opinion Analysis, Soc. of Sport J. 8, 11

(2020).

In other words, college sports are distinct because

“student-athletes are, in fact, students,” not because

they are unpaid. ER48. Student-athletes “would continue to be students in the absence of the challenged

rules”—indeed, even absent the NCAA. ER49. College sports played by students flourished for decades

before the NCAA came into existence and continued

to grow explosively up until the early 1950s when the

NCAA first enforced its compensation rules. See Carnegie Report at 13–33.

The NCAA claims that any loosening of its rules

“will vitiate the distinction between college and professional sports.” NCAA Br. 4. But no one could sincerely believe that Alabama versus Auburn at BryantDenny Stadium in November will suddenly become indistinguishable from an NFL game because a few

players received a musical instrument or a graduate

school scholarship. Nor would an upset win by a 16th

seed or a Cinderella run during March Madness become indistinguishable from NBA games because a

basketball player was promised a future internship

with his or her conference or school. Contrary to the

NCAA’s view (NCAA Br. 6), the true “hallmark[]” of

college sports—what gives it “richness and diversity”

(Bd. of Regents, 468 U.S. at 113, 120)—is that the

players are students enrolled in the college, playing in

a multi-generational ecosystem of rabid fans, including students and alums and their families—not that

the athletes play the games “unpaid.”14

Moreover, if, as the NCAA claims, consumers actually prefer to watch unpaid athletes, then a rule prohibiting compensation would be unnecessary. Freed

from the NCAA’s unnecessary restrictions, colleges

would compete to pay student-athletes as little as possible to serve this “consumer demand” for a “differentiated product.” NCAA Br. 43–44. But no one—including the NCAA—thinks this way, because no one—

including the NCAA—believes it to be true.

Even if it were true, as the NCAA suggests (NCAA Br. 47),

that “Consumers would . . . understand that cash payments for

internships were part of the compensation for student-athletes’

athletic play,” that is a distinct question from the antitrust analysis, which is whether the restraints in place now are essential

to preserve college athletics as a product separate from professional sports. The answer to that question—as found at trial—

is no.

The NCAA’s Appeal To Its Educational Mission Cannot Justify Price

Fixing

The NCAA also claims that its actions are justified because it imposes them “as part of serving a societally important non-commercial objective: higher

education.” NCAA Br. 3. But the NCAA’s ostensible

interest in higher education does not relax the requirements of the Sherman Act.

This Court has consistently rejected the suggestion that price fixing can be justified because it purportedly serves broader societal values. See FTC v.

Super. Ct. Trial Lawyers Ass’n, 493 U.S. 411, 423–24

(1990) (rejecting argument by trial lawyers that boycott of court-appointed work was justified to promote

the social value of increasing the quality of representation); FTC v. Ind. Fed'n of Dentists, 476 U.S. 447,

462–64 (1986) (refusing to consider ethical policy of

insuring proper dental care as a valid procompetitive

end). Rather, antitrust is concerned with whether the

challenged restraint promotes competition. Bd. of Regents, 468 U.S. at 117 (rejecting justifications offered

to support a challenged restraint that do not promote

competition as “inconsistent with the basic policy of

the Sherman Act”); see also Phillip E. Areeda, Antitrust Law, ¶ 1504, at 381 (1986).

For this reason, the Tenth Circuit has rejected the

NCAA’s claim that restricting assistant coaches’ salaries is justified on the ground that doing so preserves

“entry-level coaching position[s].” Law v. NCAA, 134

F.3d 1010, 1021 (10th Cir. 1998). Law held that the

rule of reason does not take into account the professed

“social value” from maintaining coaching positions for

younger people. Id. at 1021–22. The NCAA’s “give us

a pass because we mean well” argument is just as unpersuasive here as it was in Law.

In any event, the NCAA’s restrictions on education-related compensation do nothing to further its academic mission. To the contrary, as explained in Section II.A., these rules thwart the intellectual development of college athletes.

The NCAA’s Parade of Horribles Is

Unfounded and Contrary to the

Trial Record

Bereft of economic argument, record evidence,

and doctrinal support, the NCAA trots out a list of

anxieties about what might happen if its amateurism

rules are invalidated.

The NCAA and its amici suggest that schools

would rather defund or eliminate their athletic programs than compensate their athletes. Former Athletes Br. 24–30; Br. of Ga. et al. (“States Br.”) 33–34.

That is absurd. Colleges spend hundreds of millions

on athletic facilities and salaries, and the NCAA does

not explain why that would change. Sen. Chris Murphy, Madness, Inc.: How Everyone Is Getting Rich Off

College Sports – Except the Players 7 (Mar. 28, 2019),

https://bit.ly/3qhK648 (a larger share of Power Five

revenue is spent on salaries for 4,400 coaches than on

student aid for 45,000 athletes). Colleges currently

pay millions of dollars to former coaches. In 2020

alone, public colleges with major football programs

“committed . . . to more than $107.5 million in buyoutrelated payments . . . for head coaches, assistants and

strength coaches[.]” Brent Schrotenboer, Colleges

Still Have Millions to Fire Football Coaches Despite

Claiming Financial Trouble from Coronavirus, USA

Today (Dec. 17, 2020), https://bit.ly/3uFWcrp. Eliminating the NCAA’s amateurism rules would simply

enable colleges to redirect that spending towards the

individuals who actually generate that revenue.

The NCAA and its amici also complain that if

schools are permitted to offer compensation or education-related benefits to male athletes, they might be

required to do the same for women athletes. NCAA

Br. 32; States Br. 31–33. The NCAA invidiously implies that women’s sports might suffer if market forces

are introduced to college athletics. That argument

wrongly assumes that women’s sports have no economic value to colleges, and it is also old-fashioned

stereotyping. United States v. Virginia, 518 U.S. 515,

533, 542 n.12 (1996) (Ginsburg, J.) (“[O]verbroad generalizations” about the “talents, capacities, or preferences” of women, “have . . . impeded[] women’s progress toward full citizenship stature throughout our

Nation’s history.”).

Women athletes have “equal opportunity to aspire, achieve, participate in and contribute to” their

schools “based on their individual talents and capacities.” Id. at 532. Attendance figures and ticket prices

for women’s basketball games exceeds that of men’s

games at many schools. Laine Higgins, Attendance at

Women’s College Basketball Games Is Surging, Wall

St. J. (Mar. 5, 2020), https://on.wsj.com/38izagA.

Some women’s college soccer games are just as wellattended as Major League Soccer games. Paul Kennedy, Crowd Count: UCLA-USC Breaks Women’s College Attendance Record, SoccerAmerica (Nov. 4, 2017),

https://bit.ly/2Orr2TU (nearly 12,000 fans in attendance). Jerseys for top female college athletes sell out

instantly. Whitney Medworth, Nike Finally Made Sabrina Ionescu Jerseys, and They Sold Out in Hours,

SB Nation (Nov. 13, 2019), https://bit.ly/2MTJXpV.

Millions of viewers tune in to watch the finals of

women’s March Madness and the College Softball

World Series. Derek Volner, More than 3.8 Million

Viewers for the NCAA Women’s Basketball National

Championship, ESPN Press Room (Apr. 4, 2017),

https://bit.ly/3qqofaW; Kimberly Elchlepp, ESPN’s

Women’s College World Series, Super Regional, Regular Season Softball Viewership Surges, ESPN Press

Room (June 6, 2019), https://bit.ly/2MTKvMv. Allowing competition will greatly increase the benefits

available to women players as colleges compete with

one another to build the best women’s sports programs.

Indeed, the NCAA’s rules have a more profoundly

negative effect on female athletes than on male athletes, primarily because women at this point in history

generally have fewer opportunities in athletics after

their college careers end. There are fewer roster spots

available in the professional ranks for elite women

athletes: the WNBA has 12 professional teams and

the NWSL has 10, compared to 30 NBA teams and 27

MLS teams. This foists impossible decisions on talented women athletes. Olympic champions like Katie

Ledecky and Kyla Ross have been forced to choose between capitalizing on their success or pursuing their

college careers—they ended up forfeiting years of their

highest earning potential. Lindsay Gibbs, It’s Time to

View Ending NCAA Amateurism as a Women’s Rights

Issue, Too, Power Plays (Nov. 1, 2019),

https://bit.ly/2O2vVCG. Permitting, if not requiring

pursuant to Title IX, colleges to compensate female

athletes will incentivize them to invest in women’s

sports and to create additional avenues for continued

growth. Lindsay Gibbs, Ending the Sham of NCAA

Amateurism Will Not End Title IX, ThinkProgress

(Mar. 30, 2018), https://bit.ly/37Sxv13.

The NCAA and its amici also warn that non-revenue sports will be jeopardized if its amateurism rules

are lifted, but again there is no record evidence or

sound argument to support this speculation. See, e.g.,

NCAA Br. 32; Former Athletes Br. 28; States Br. 31–

34. Many schools already maintain their athletic programs even if their athletic departments do not make

a profit. Former Athletes Br. 25. And if profits were

required for schools to maintain their athletic programs, Divisions II and III of the NCAA would have

long since been eliminated. See id. at 26. So too for

drama societies, school newspapers, intramural flag

football, and the chess club.

The NCAA next warns that permitting schools to

offer educational benefits, such as post-eligibility internships, will simply allow them to funnel de facto

salaries to players as a recruiting tool. NCAA Br. 37–

38. But colleges already spend lavishly to lure top

athletes to their programs through, for example, the

construction of luxurious athletic facilities. Eliminating amateurism would permit colleges to compete

with books instead of buildings and to reward athletes

instead of administrators.

The bottom line is that the NCAA’s parade of horribles is all speculative. And as with “most arguments

against the free market,” these arguments reflect “a

lack of belief in freedom itself.” Milton Friedman,

Capitalism and Freedom 15 (1962). Free markets

have elevated the well-being of mankind for centuries.

While the introduction of limited market forces may

change the status quo in ways that are uncomfortable

for the NCAA, there is every reason in law and in history to trust that the elimination of anticompetitive

constraints will lead to the betterment of collegiate

sports and “promote the General Welfare.” U.S.

Const. pmbl.

Moreover, the NCAA’s current regime is not a

model of ethics and integrity. By trying to smother

market forces, the NCAA has driven them underground and witnessed seemingly endless scandals

proliferate under its purview. See, e.g., Andy Staples,

What Has the NCAA—or Anyone—Learned from the

College Basketball Black Market’s Time on Trial?,

Sports

Illustrated

(May

2019),

https://bit.ly/32yR3CJ (reviewing fallout of federal

government’s investigation into college basketball

bribery scandal); Jake New, NCAA Confirms Escort

Allegations at Louisville, Inside Higher Ed (Oct. 21,

2016), https://bit.ly/3kNmGCH (describing use of parties with dancers and escorts to lure basketball program recruits); Charles Robinson, Renegade Miami

Football Booster Spells Out Illicit Benefits to Players,

Yahoo!

Sports

(Aug.

16,

2011),

https://yhoo.it/2BC1D0V (University of Miami booster

“provided thousands of impermissible benefits to at

least 72 athletes from 2002 through 2010”).

College athletes deserve better. They possess and

deserve the opportunity to realize their right to employ their talents and to reap the fruits of their labors.

See John Locke, Second Treatise of Government 17 (T.

Peardon ed., 1952) (“The labour of his body, and the

work of his hands, we may say, are properly his.”); see

also James Madison, Speech in Virginia Convention

(Dec. 2, 1829) (the “personal right to acquire property

… is a natural right”). And notwithstanding the

queasy-making hypotheticals the NCAA will wave

around, antitrust law puts its faith in freedom and in

the long run:

‘The heart of our national economic policy long

has been faith in the value of competition.’

Standard Oil Co. v. FTC, 340 U.S. 231, 248

(1951). The assumption that competition is

the best method of allocating resources in a

free market recognizes that all elements of a

bargain—quality, service, safety, and durability—and not just the immediate cost, are favorably affected by the free opportunity to select among alternative offers. Even assuming

occasional exceptions to the presumed consequences of competition, the statutory policy

precludes inquiry into the question whether

competition is good or bad.

Nat’l Soc’y of Prof’l Eng’rs, 435 U.S. at 695.

CONCLUSION

The NCAA’s amateurism rules demand that college athletes sacrifice their minds and bodies for their

schools and for their love of the game while every

penny of economic benefit flows to someone else.

Nothing in this Court’s precedent compels the Court

to condone this system, which is anathema to modern

antitrust law and deeply rooted American values.

This Court should reject amateurism as a justification

for price fixing under the antitrust laws and put college athletes on the same footing as every other American adult. The judgment of the Ninth Circuit should

be affirmed.

Respectfully submitted,

ANDREW S. TULUMELLO

Counsel of Record

KRISTEN C. LIMARZI

ARIANNA M. SCAVETTI

GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Avenue, N.W.

Washington, D.C. 20036-5306

(202) 955-8657

atulumello@gibsondunn.com

Counsel for Amici Curiae

March 10, 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.