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 Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

————

BRIEF OF FORMER NCAA EXECUTIVES AS

AMICI CURIAE SUPPORTING RESPONDENT

————

JAMES W. QUINN

Counsel of Record

MICHAEL M. FAY

EMILY BURGESS

BERG & ANDROPHY

120 West 45th Street

38th Floor

New York, NY 10036

(646) 766-0073

jquinn@bafirm.com

Counsel for Amicus Curiae

March 10, 2021

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002

TABLE OF CONTENTS

Page

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

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

SUMMARY OF ARGUMENT .............................

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

THE DRAMATIC INCREASE IN THE

NCAA’S AND ITS MEMBERS’ REVENUE HAS TRANSFORMED THE

MARKET FOR COLLEGE SPORTS .......

WHEN COUPLED WITH ITS COMPENSATION RESTRICTIONS, THE NCAA’S

INCREASED REVENUE BENEFITS

SCHOOLS AND COACHES RATHER

THAN COLLEGE ATHLETES ................

III. THE NCAA HAS NO FIXED DEFINITION OF AMATEURISM ........................

IV. THE

NCAA’S

COMPENSATION

RESTRICTIONS DO NOT PRESERVE

CONSUMER DEMAND ...........................

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

II.

(i)

TABLE OF AUTHORITIES

CASES

Page(s)

NCAA v. Bd. of Regents of Univ. of Okla.,

468 U.S. 85 (1984) ....................................passim

O’Bannon v. NCAA,

7 F. Supp. 3d 955 (N.D. Cal. 2014),

aff’d in part, vacated in part,

802 F.3d 1049 (9th Cir. 2015) ...................

State Compensation Ins. Fund v.

Indus. Comm’n,

314 P.2d 288 (1957) ..................................

1, 2

COURT FILINGS

Mem. ISO Defs.’ Mot. to Dismiss, McCants

v. NCAA et al., No. 15-cv-00176 (M.D.N.C.

Mar. 30, 2015), ECF No. 21 ......................

OTHER AUTHORITIES

Lev Akabas & Daniel Libit, Saban and Day

Contracts Reveal Money on the Line in

Championship Game: Data Viz, SPORTICO

(Jan. 11, 2021; 10:43 AM), https://www.

sportico.com/leagues/college-sports/2021/

saban-day-championship-1234620074 ....... 17-18

Athlete Services, TEAM USA (2021), https://

www.teamusa.org/Team-USA-Athlete-Se

rvices/Financial-Resources ......................

Tales Azzoni, Gold Medal Not the Only

Prize for Most Olympic Champions,

ASSOC. PRESS (Aug. 26, 2016), https://ap

news.com/article/42a93d5073f64d53a842

421e4b16d5ec ............................................

iii

TABLE OF AUTHORITIES—Continued

Page(s)

Steve Berkowitz, Power Five Conferences

Had Over $2.9 Billion in Revenue in

Fiscal 2019, New Tax Records Show,

USA TODAY (July 10, 2020; 2:00 PM),

https://www.usatoday.com/story/sports/c

ollege/2020/07/10/power-five-conferencerevenue-fiscal-year-2019/ 5414405002.....

Big Bonus to Carpenter, N.Y. TIMES (Sept.

2, 1987), https://www.nytimes.com/1987/

09/02/sports/sports-people-big-bonus-tocarpenter.html ..........................................

Taylor Branch, The Shame of College Sports,

THE ATLANTIC (Oct. 2011), available at

https://perma.cc/AZM4-CYZ8 ...................

Christine Brennan, U.S. Athletes to Earn

$15,000 for Each Olympic Gold Medal,

WASH. POST (May 12, 1993), available at

https://www.washingtonpost.com/archive/

politics/1993/05/12/us-athletes-to-earn-15

000-for-each-olympic-gold-medal/db9cd2

18-7f65-4148-9364-3b130cfbb286 .............

WALTER BYERS, UNSPORTSMANLIKE CONDUCT:

EXPLOITING COLLEGE ATHLETES (1995) ....

Ctrs. for Disease Control & Prevention,

College Sports-Related Injuries – United

States, 2009-10 Through 2013-14 Academic

Years (Dec. 11, 2015), https://www.cdc.

gov/mmwr/preview/mmwrhtml/mm6448

a2.htm .......................................................

TABLE OF AUTHORITIES—Continued

Page(s)

CHARLES T. CLOTFELDER, BIG-TIME SPORTS

IN AMERICAN UNIVERSITIES (2011)............

Comm’n on Coll. Basketball, Report and

Recommendations to Address the Issues

Facing Collegiate Basketball (April

2018), available at https://www.ncaa.org/

sites/default/files/2018CCBReportFinal_

web_20180501.pdf.....................................

Ross Dellenger & Pat Forde, A Collegiate

Model in Crisis: The Crippling Impact of

Schools

Cutting

Sports,

SPORTS

ILLUSTRATED (June 11, 2020), available

at https://www.si.com/college/2020/06/11/

college-sports-program-cuts-ncaa-olymp

ics ...............................................................

Sara Goldrick-Rab et al., Hope Ctr. for

College, Cmty. & Justice, Hungry to Win:

A First Look at Food and Housing

Insecurity Among Student-Athletes (Apr.

2020), available at https://hope4college.

com/wp-content/uploads/2020/04/2019_

StudentAthletes_Report.pdf .....................

GERALD GURNEY ET AL., UNWINDING

MADNESS: WHAT WENT WRONG WITH

COLLEGE SPORTS AND HOW TO FIX IT

(2017) .........................................................

Jennifer M. Hootman, Epidemiology of Collegiate Injuries for 15 Sports: Summary

and Recommendations for Injury Prevention Initiatives, 42 J. ATHLETIC TRAINING

312 (2007) ..................................................

TABLE OF AUTHORITIES—Continued

Page(s)

Patrick Hruby, The Olympics Show Why

College Sports Should Give Up on

Amateurism, THE ATLANTIC (July 25,

2012), available at https://www.theatlan

tic.com/entertainment/archive/2012/07/theolympics-show-why-college-sports-shouldgive-up-on-amateurism/ 260275 ...............

Int’l Olympic Comm., Olympic Marketing

Fact File (2020) .........................................

J. G. Joakim Soederbaum, Leveling the

Playing Field – Balancing Student

Athletes’ Short and Long-Term Financial

Interests with Educational Institutions’

Interests in Avoiding NCAA Sanctions,

24 MARQ. SPORTS L. REV. 261 (2013) ........

Knight Found. Comm’n on Intercollegiate

Athletics, Keeping Faith with the

Student-Athlete: A New Model for

Intercollegiate Athletics (Mar. 1991),

available at https://www.knightcommiss

ion.org/wp-content/uploads/2008/10/199193_kcia_report.pdf ....................................

NCAA, 2020-21 Division I Manual (2020),

https://web3.ncaa.org/lsdbi/reports/getRe

port/90008 ..................................... 13, 19, 20, 21

NCAA, GOALS Study: Understanding

the Student-Athlete Experience (2020),

https://ncaaorg.s3.amazonaws.com/resea

rch/goals/2020AWRES_GOALS2020con.

pdf ............................................................. 10, 11

TABLE OF AUTHORITIES—Continued

Page(s)

NCAA Recruiting Facts, NCAA (Aug.

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

/compliance/recruiting/NCAA_Recruiting

FactSheet.pdf ............................................

NCAA, Results from the 2015 GOALS

Study of the Student-Athlete Experience

(Jan. 2016), https://www.ncaa.org/sites/

default/files/GOALS_convention_slideba

nk_jan2016_public.pdf ..............................

NCAA Salaries: NCAAB Coaches, USA

TODAY (Feb. 27, 2020), https://sports.

usatoday.com/ncaa/salaries/mens-basket

ball/coach ...................................................

NCAA Salaries NCAAF Assistant Coaches

(Dec. 16, 2020), https://sports.usatoday.

com/ncaa /salaries/football/assistant ..........

NCAA Salaries: NCAAF Coaches, USA

TODAY (Nov. 17, 2020), https://sports.usa

today.com/ncaa/salaries ............................

NCAA Salaries: NCAAF Strength Coaches,

USA TODAY (Dec. 16, 2020), https://sports.

usatoday.com/ncaa/salaries/football/streng

th................................................................

NCAA, Trends in Graduation Success

Rates and Federal Graduation Rates at

NCAA Division I Schools (Nov. 2020),

https://ncncaaorg.s3.amazonaws.com/res

earch/gradrates/2020/2020D1RES_FedG

SRTrends.pdf ...........................................

vii

TABLE OF AUTHORITIES—Continued

Page(s)

JOE NOCERA & BEN STRAUSS, INDENTURED:

THE INSIDE STORY OF THE REBELLION

AGAINST THE NCAA (2016). ......................

Charlie Nobles, Saban Leaving the Dolphins

for Alabama, N.Y. TIMES (Jan. 4, 2007),

https://www.nytimes.com/2007/01/04/spo

rts/ncaafootball/04saban.html ..................

Mitchell H. Railborn, NCAA, Revenues and

Expenses of Intercollegiate Athletics

Program: Analysis of Financial Trends

and Relationships 1981-1985 (1986) ........ 7, 12

Brent Schrotenboer, College Football

Playoff Business is Booming at Halfway

Point, but Expansion Looms, USA TODAY

(Jan. 9, 2020; 9:55 AM), https://www.

usatoday.com/story/sports/ncaaf/2020/01

/09/college-footbail-playoff-financial-succ

ess-expansion-future /2838495001 ...........

Janet E. Simon & Carrie L. Doherty,

Current Health-Related Quality of Life is

Lower in Former Division I Collegiate

Athletes Than in Non-Collegiate Athletes,

42 AM. J. SPORTS MED. 423 (2014) ............

Kevin Stankiewicz, Review of Big Ten

Athletic Contracts Finds Team Performance Valued More Than Athletic Performance, THE LANTERN (Dec. 5, 2016),

available at https://www.thelantern.com/

2016/12/review-of-big-ten-athletic-contra

cts-finds-team-performance-valued-morethan-academic-performance .....................

viii

TABLE OF AUTHORITIES—Continued

Page(s)

Where the Money Comes From (Revenues),

Finances of Intercollegiate Athletes Database, NCAA (Sept. 2020), https://www.nc

aa.org/about/resources/research/finances

-intercollegiate-athletics-database ... 7, 8, 12, 15

Matt Wilson, NCAA Division I Football

Coaching Contracts: A Comparative

Analysis of Incentives for Athletic and

Academic Team Performance from 2006,

2009 and 2011, 11 J. CONTEMP.

ATHLETICS 237 (2017) ...............................

Will Hobson & Steven Rich, Colleges Spend

Fortune on Lavish Athletic Facilities,

CHI. TRIB. (Dec. 23, 2015), available at

https://www.chicagotribune.com/sports/c

ollege/ct-athletic-facilities-expenses20151222-story.html .................................

Adrian Wojnarowski & Zach Lowe, NBA

Revenue for 2019-20 Season Dropped

10% to $8.3 Billion, Sources Say, ESPN

(Oct. 28, 2020), https://www.espn.com/

nba/story?id=30211678&_slug_=nba-rev

enue-2019-20-season-dropped-10-83-billi

on-sources-say ............................................

INTEREST OF AMICI CURIAE

Amici curiae are former officials of Petitioner National

Collegiate Athletic Association (“NCAA”) with personal and professional experience in collegiate sports

from the 1980s to the present.1

Renee Gomila (“Gomila”), who served as an NCAA

Associate Director of Enforcement from 2002 to

2014, helped lead multiple investigations of NCAA

rule violations and, among other things, liaised and

coordinated with the NCAA Recruiting Cabinet and

Football Issues Subcommittee and worked with reinstatement staff on eligibility issues. Gomila coordinated the Enforcement Department’s football development plans for Florida and Texas, working directly

with college and high school football coaches, college

athletes,2 and prospective college athletes to provide

Pursuant to Rule 37.6, amici curiae state that no counsel for

a party authored this brief in whole or in part. No person other

than amici curiae or their counsel made a monetary contribution

intended to fund the preparation or submission of this brief. All

parties have consented in writing to the filing of this brief.

Throughout this brief, the term “college athlete” is used to

refer to college students who play NCAA sports. The NCAA’s first

executive director, Walter Byers (“Byers”), explained that the

NCAA “crafted the term student-athlete” to avoid “the dreaded

notion that NCAA athletes could be identified as employees by

state industrial commissions and the courts.” WALTER BYERS,

UNSPORTSMANLIKE CONDUCT: EXPLOITING COLLEGE ATHLETES

69 (1995). One of the first legal decisions to use the term, State

Compensation Insurance Fund v. Industrial Commission, 314

P.2d 288 (1957), concerned a workers’ compensation claim involving Ray Dennison, a college athlete who was fatally injured while

playing football for Fort Lewis A&M College. Id. at 289. His

widow was awarded workers’ compensation benefits by the

Industrial Commission of the State of Colorado, but the Colorado

Supreme Court reversed, finding that “the college was not in

the football business and received no benefit from this field of

NCAA rule interpretations and address recruiting

and eligibility issues. Prior to joining the NCAA,

Gomila was a Compliance Assistant at the University

of Colorado, where she monitored recruitment, eligibility, agent issues, and financial aid programs to

ensure NCAA compliance. Gomila received her law

degree from Tulane University School of Law in 2000

and currently operates RG Sports Consulting, where

she provides legal and compliance management advice

on NCAA rules to college and high school coaches,

college athletes, prospective college athletes, and

institutional administrators. Gomila also works with

an insurance group, James D. Edgeworth, Jr. and

Associates, LLC, to advocate for insurance and related

benefits for college athletes, and consults with finanrecreation,” and that the state’s workers’ compensation fund was

not intended to be “a pension fund for all student athletes

attending our state educational institutions.” Id. at 290. As

Pulitzer Prize-winning author Taylor Branch has explained:

The term student-athlete was deliberately ambiguous.

College players were not students at play (which might

understate their athletic obligations), nor were they

just athletes in college (which might imply they were

professionals). That they were high-performance

athletes meant they could be forgiven for not meeting

the academic standards of their peers; that they were

students meant they did not have to be compensated,

ever, for anything more than the cost of their studies.

Taylor Branch, The Shame of College Sports, THE ATLANTIC (Oct.

2011), available at https://perma.cc/AZM4-CYZ8. In the years

since the Dennison case, “[u]sing the ‘student-athlete’ defense,

colleges have compiled a string of victories in liability cases” and

the NCAA “continues to invoke it as both a legalistic defense and

a noble ideal.” Id. In light of its historical and continued use by

the NCAA to avoid liability and justify the NCAA’s refusal to

provide benefits to college athletes, the term “student-athlete” is

only used here when quoting material from another source.

cial firms to assess legal and risk management issues

within football, men’s basketball, and other youth and

collegiate sports.

Mark Lewis (“Lewis”) is a former college athlete

who played NCAA Division I football for the University of Georgia, where he obtained his undergraduate

degree in 1988 and his law degree in 1992. Lewis

served as the NCAA’s Executive Vice President for

Championships and Alliances from 2012 to 2016. At

the time he joined the NCAA, Lewis had nearly two

decades of experience in sports marketing. Among

other things, he was a Senior Vice President of

Business Affairs at Meridian Management SA, which,

at the time of his employment, served as the exclusive

manager of The Olympic Partner (“TOP”) sponsorship

program of the International Olympic Committee

(“IOC”). He also served as President of the Olympic

Properties of the United States LLC, a joint venture

between the United States Olympic Committee

(“USOC”) and the Salt Lake City Olympic Organizing

Committee that raised more than $1.5 billion in

sponsorships with more than seventy corporations.

Angela O’Neal (“O’Neal”) served as an Assistant

Director of Enforcement for the NCAA from 2007 to

2008. In her enforcement capacity, she investigated

multiple potential violations of NCAA rules. Prior to

joining the NCAA, she earned her law degree from the

University of Tennessee College of Law and worked in

the athletics departments of NCAA Division I schools,

serving as Assistant Athletics Director and Director of

Women’s Basketball Operations for the University of

Kentucky and Director of Women’s Basketball Operations for the University of South Carolina. Currently,

O’Neal serves as Director of Nextra Solutions, an

information management provider for corporations,

law firms, and government agencies.

Mark Neyland (“Neyland”) served as an NCAA

Assistant Director of Enforcement from 2006 to 2009.

He led a high-profile investigation of NCAA recruiting

violations by the coaching staff of a storied NCAA

Division I basketball program and presented evidence

to the NCAA Division I Committee on Infractions. He

also investigated multiple allegations of college athletes’ violations of NCAA rules relating to the receipt

of benefits that had the potential to impact their

eligibility to participate in NCAA sports. After leaving

the NCAA, Neyland was the Senior Counsel in the

college sports practice of the law firm Ice Miller, LLP,

where he represented NCAA members during NCAA

investigations and advised clients, including NCAA

member institutions, regarding NCAA rule compliance and infractions.

Tim Nevius (“Nevius”) is a former college athlete

who played NCAA Division I baseball at the University of Dayton. After obtaining his undergraduate and

law degrees, Nevius joined the NCAA, where he

worked as an Assistant and then Associate Director of

Enforcement from 2007 to 2012. In those roles, he

helped lead multiple high-profile enforcement cases,

including cases against the University of Connecticut

men’s basketball program and The Ohio State University football program. He also served as a liaison to

the Division I Student-Athlete Advisory Committee,

where he worked with athletes from every NCAA

Division I conference on NCAA legislation and policy

considerations affecting athletes. After working at

the NCAA, Nevius founded and co-chaired the

college sports practice of the law firm Winston &

Strawn LLP, where he advised high school, college and

Olympic athletes and their families on NCAA rules

and eligibility issues. He later founded Nevius Legal,

which focuses on advising current and prospective

college athletes and their families on NCAA matters,

including initial eligibility, scholarship cancellations,

hardship waivers, transfer cases, drug appeals, and

NCAA investigations. He is also the Founder and

Executive Director of the College Athlete Advocacy

Initiative at the Urban Justice Center, a nonprofit

organization that represents college athletes on

NCAA-related matters and advocates for college

sports reform.

Jasmine Williams (“Williams”) served in several

roles at the NCAA from 2006-2012, including as an

Assistant Director of Enforcement Technology/Business Analyst. During her tenure, she developed a

comprehensive knowledge and information management strategy for the NCAA’s Enforcement division.

She also created a new business unit, the Information

Management Group, in the NCAA’s Enforcement

division to centralize the operational aspects of the

work, increase efficiency of investigators, and provide

a “hub” of information resources.

Amici’s personal and professional experience with

NCAA Division I athletics and the operations and

business of the NCAA itself renders them uniquely

positioned to explain how collegiate sports have

changed since this Court’s decision in NCAA v. Board

of Regents of University of Oklahoma (“Board of

Regents”), 468 U.S. 85 (1984).

SUMMARY OF ARGUMENT

As a result of the continued growth in popularity

and dramatic increase in amounts of revenue generated by collegiate sports over the more than thirty-five

years since Board of Regents, the NCAA now operates

in a manner akin to a commercial enterprise and has

shifted its focus from making athletics an integral part

of the educational experience of college athletes to

generating profits for itself and its members. With

this shift in focus, the NCAA’s professed commitment

to “amateurism” has become a way of preserving the

market that the NCAA has come to dominate, rather

than a means of protecting and benefitting college

athletes. Thus, though they once supported and

enforced all of the NCAA’s rules, with the benefit of

further experience and hindsight, amici have come to

believe that the NCAA’s current restrictions on college

athletes’ receipt of education-related benefits do not

promote “amateurism,” which the NCAA itself has

admitted has no fixed definition. Restrictions on

education-related benefits are also unnecessary to

preserve consumer demand, serve to perpetuate the

NCAA’s improper focus on generating revenue to

benefit member schools, and are simply unfair to

participating college athletes.

Accordingly, amici respectfully urge this Court to

affirm the judgment of the Ninth Circuit Court of

Appeals finding that the NCAA’s professed commitment to “amateurism” does not provide a procompetitive justification for the NCAA’s restrictions on college

athletes’ receipt of education-related benefits and

upholding the injunction entered by the district court.

ARGUMENT

I. THE DRAMATIC INCREASE IN THE

NCAA’S AND ITS MEMBERS’ REVENUE

HAS TRANSFORMED THE MARKET FOR

COLLEGE SPORTS

The NCAA and its members have seen their

revenues dramatically increase since the 1980s, and

today’s market for college sports is therefore radically

different than it was when this Court issued its 1984

decision in Board of Regents. In 1985, NCAA Class A

schools, which had Division I football, raised $922

million, and Class D schools, which had Division I

basketball but did not offer football, raised more than

$41 million.3 In 2016, NCAA Division I schools raised

more than $13.5 billion.4 The same year, the NCAA

“negotiated an eight-year extension of its multimedia

contract for the broadcasting rights to March Madness, the annual DI men’s basketball tournament.”

App. 10a. From 1982 to 1984, CBS paid $16 million a

year to televise the tournament.5 The total value of

the current contract, which extends through 2032, is

$19.6 billion. App. 68a.

Mitchell H. Railborn, NCAA, Revenues and Expenses of Intercollegiate Athletics Program: Analysis of Financial Trends and

Relationships 1981-1985 9 (1986).

Where the Money Comes From (Revenues), Finances of

Intercollegiate Athletes Database, NCAA (Sept. 2020), https://

www.ncaa.org/about/resources/research/finances-intercollegiateathletics-database [hereinafter “NCAA Finances Database”].

Brent Schrotenboer, College Football Playoff Business is

Booming at Halfway Point, but Expansion Looms, USA TODAY

(Jan. 9, 2020), https://www.usatoday.com/story/sports/ncaaf/

2020/01/09/college-football-playoff-financial-success-expansionfuture/2838495001.

In recent years, the NCAA’s and its members’

revenue has continued to increase. In 2019, NCAA

members raised more than $18.9 billion.6 As a point

of comparison, the National Basketball Association

generated $8.3 billion for the 2019-20 season.7 In

other words, notwithstanding the NCAA’s professed

commitment to amateurism, NCAA members raise

more revenue from Division I sports than some

professional sports leagues.

Further, “Division I conferences negotiate their own

contracts and generate their own revenues from regular and post-season [Football Bowl Subdivision

(‘FBS’)] football.” App. 68a. “The FBS conferences

have a multi-year media contract with ESPN for the

College Football Playoff, the total value of which is

$5.64 billion.” Id. “[T]he Power Five . . . each generate

hundreds of millions of dollars in revenues per year, in

addition to the money that the NCAA distributes to

them.” Id. Like the revenue generated by the NCAA,

“[t]he revenues of the Power Five have increased

over time and are projected to continue to increase.”

Id. In the 2015-16 academic year, “D1 basketball and

FBS football . . . generated $4.3 billion in revenue (a

$300 million increase from the previous year) for the

Power Five.” App. 10a. Overall, “FBS conference

revenues rose . . . $250 million (11 percent), including

an increase of nearly $45 million (24 percent) among

schools in FBS conferences other than the Power

Five.” D.Ct. Dkt. 995 ¶ 115. Among the five FBS

conferences for which data are available for 2016-17,

NCAA Finances Database.

Adrian Wojnarowski & Zach Lowe, NBA Revenue for 201920 Season Dropped 10% to $8.3 Billion, Sources Say, ESPN (Oct.

28, 2020), https://www.espn.com/nba/story?id=30211678&_slug_

=nba-revenue-2019-20-season-dropped-10-83-billion-sources-say.

revenues increased again for four of the five FBS

conferences[.]” Id. “In 2017-18, each Power Five

conference distributed over $25 million to its members, the Big Ten disbursed over $50 million to its

members, and three of the four other Power Five

conferences expect to reach $40 million per member

soon.” Id. In 2019, the Power Five had more than $2.9

billion in revenue.8 In sum, “[t]he NCAA and Division

I universities make billions of dollars from ticket sales,

television contracts, merchandise, and other fruits

that directly flow from the labors of college athletes.”

App. 54a.

II. WHEN COUPLED WITH ITS COMPENSATION RESTRICTIONS, THE NCAA’S

INCREASED

REVENUE

BENEFITS

SCHOOLS AND COACHES RATHER THAN

COLLEGE ATHLETES

Perhaps unsurprisingly, as the revenue generated

by college sports has increased, the time that college

athletes are expected to devote to their sports has also

increased. Throughout the 1980s, football and basketball players at Division I schools spent approximately

30 hours per week on their sports in season.9 The

NCAA’s 2019 Growth, Opportunities, Aspirations and

Learning of Students in College (“GOALS”) study

found that the time that Division I football players

Steve Berkowitz, Power Five Conferences Had Over $2.9

Billion in Revenue in Fiscal 2019, New Tax Records Show, USA

TODAY (July 10, 2020; 2:00 PM), https://www.usatoday.com/

story/sports/college/2020/07/10/power-five-conference-revenuefiscal-year-2019/5414405002.

Knight Found. Comm’n on Intercollegiate Athletics, Keeping

Faith with the Student-Athlete: A New Model for Intercollegiate

Athletics 28-29 (Mar. 1991), https://www.knightcommission.org/

wp-content/uploads/2008/10/1991-93_kcia_report.pdf.

spent on athletics in season is equivalent to a full-time

job (40 hours per week for college in the FBS and 37

hours for college athletes in the Football Championship Subdivision (“FCS”)) more time than they spent

on academics (35 hours per week for FBS and 34

hours for FCS).

Although men’s and women’s

basketball college athletes spent slightly less time on

in-season athletics, their time commitments were still

nearly equivalent to a full-time job (32 hours for men

and 35 hours for women), and their academic time

commitments were similar (34 hours for men and

38 hours for women).10 In other words, playing Division I football or basketball while attending college is

roughly equivalent to two full-time jobs. Given these

significant demands, it is hardly surprising that

among Division I male college athletes in the 2017-20

class, those in football had lower graduation success

rates than any other sport (78% for FCS and 80% for

FBS).11

Even when college athletes are able to perform well

academically, these demands on college athletes’ time

take a toll on their mental health, and that toll has

increased over time. In 1986, nearly 20% of NCAA

college athletes felt “frequently overwhelmed,” compared to nearly 40% in 2018. In 2019, nearly half

(45%) of NCAA Division I women’s basketball players

and roughly 40% of men’s basketball and football

NCAA, GOALS Study: Understanding the Student-Athlete

Experience 19, 21 (2020), https://ncaaorg.s3.amazonaws.com/

research/goals/2020AWRES_GOALS2020con.pdf.

NCAA, Trends in Graduation Success Rates and Federal

Graduation Rates at NCAA Division I Schools 13 (Nov. 2020),

https://ncaaorg.s3.amazonaws.com/research/gradrates/2020/202

0D1RES_FedGSRTrends.pdf.

players felt unable to keep up with their classes in

season.12

Of course, college athletes face physical risks from

their sports participation as well. A study of NCAA

college athlete injuries in fifteen sports from 1988

through 2004 found that across all divisions, the rate

of game injuries was 13.80 per 1,000 athlete exposures,

and the rate of practice injuries was 4.00, which equated

to one injury every two games and one injury every five

practices for a team of fifty participants. The rates for

Division I athletes were higher; the game injury rate

was 15.47 and the practice injury rate was 4.27.13 A

study of injuries in twenty-five NCAA sports covering

a five-year period from 2009 to 2014 found that college

athletes experienced an average of 210,674 injuries

per year, and that men’s football teams accounted for

nearly a quarter (22.4%) of all injuries and more than

a third (36.3%) of male injuries.14

Notably, there is evidence that the health impacts

of NCAA Division I sports do not end once college

athletes graduate. A study designed to measure the

Health-Related Quality of Life (“HRQoL”) in former

NCAA Division I college athletes aged 40 – 65 found

former college athletes scored worse on measures of

“physical function, depression, fatigue, sleep disturbance and pain interference compared with their non12

NCAA, supra note 10, at 26.

Jennifer M. Hootman, Epidemiology of Collegiate Injuries

for 15 Sports: Summary and Recommendations for Injury Prevention Initiatives, 42 J. ATHLETIC TRAINING 312, 312 (2007).

Ctrs. for Disease Control & Prevention, College SportsRelated Injuries – United States, 2009-10 Through 2013-14

Academic Years (Dec. 11, 2015), https://www.cdc.gov/mmwr/pre

view/mmwrhtml/mm6448a2.htm.

athlete counterparts,” and “reported more limitations

during daily activity and exercise, more chronic injuries and more major injuries than did nonathletes.”

The authors of the study concluded that “some former

Division I athletes may sacrifice their future HRQoL

for their relatively short athletic careers in collegiate

sports.”15

Of course, if the NCAA were truly concerned with

the well-being of these college athletes, it would use its

revenue to recognize their dedication and sacrifice by

providing them with appropriate levels of financial

aid. But despite college athletes’ willingness to devote

increasing amounts of time and effort to their sports,

the percentage of revenue that the NCAA has devoted

to financial aid for college athletes has decreased. In

1985, approximately 27% of the NCAA’s revenue from

Class A schools (which offered Division I football) and

42% of its revenue from Class D schools (which offered

Division I basketball but did not offer football) was

used for grants-in-aid to college athletes.16 In 2019,

the NCAA and its members raised nearly $15.7 billion

in Division I revenue but used less than $2.85 billion

(18.1%) for aid to college athletes.17 More than two in

five (43%) NCAA Division I college athletes did not

receive any aid.18

Janet E. Simon & Carrie L. Doherty, Current HealthRelated Quality of Life is Lower in Former Division I Collegiate

Athletes Than in Non-Collegiate Athletes, 42 AM. J. SPORTS MED.

423, 428 (2014).

Railborn, supra note 3, at 33.

NCAA Finances Database.

NCAA Recruiting Facts, NCAA (Aug. 2020), https://ncaa

org.s3.amazonaws.com/compliance/recruiting/NCAA_Recruiting

FactSheet.pdf.

Additionally, as the NCAA’s revenue has increased,

NCAA Division I schools have offered fewer sports.

Since 1990, NCAA Division I membership has grown

by fifty-eight schools, yet at least eight sports are

sponsored by fewer schools today than they were

thirty years ago, including men’s wrestling, swimming, gymnastics, and tennis. The COVID-19 pandemic appears to have accelerated this trend; in one

eight-week period in the first half of 2020, four schools

eliminated three sports and a fifth, Brown University,

eliminated eight.19 Because the NCAA bylaws limit

the number of students who receive athletics-related

financial aid by sport,20 eliminating a sport from a

school reduces the number of college athletes from the

school who receive athletics-related financial aid.

It is clear that college athletes need such aid. The

NCAA’s 2015 GOALS study found that approximately

40% of NCAA Division I men’s basketball and football

college athletes and a third of women’s basketball

college athletes did not agree with the statement, “I

usually have enough money to buy the things I need

(e.g., groceries).”21 More recently, a 2020 survey by

The Hope Center for College Community and Justice

found nearly a quarter of college athletes at Division I

schools had experienced food insecurity in the past

Ross Dellenger & Pat Forde, A Collegiate Model in Crisis:

The Crippling Impact of Schools Cutting Sports, SPORTS

ILLUSTRATED (June 11, 2020), available at https://www.si.com/

college/2020/06/11/college-sports-program-cuts-ncaa-olympics.

NCAA, 2020-21 Division I Manual at 295-306 (2020)

[hereinafter “NCAA Division I Manual”], https://web3.ncaa.org/

lsdbi/reports/getReport/90008 (Bylaws §§ 15.5.3 – 15.5.10).

NCAA, Results from the 2015 GOALS Study of the StudentAthlete Experience 112 (Jan. 2016), https://www.ncaa.org/sites/

default/files/GOALS_convention_slidebank_jan2016_public.pdf.

thirty days and 14% had experienced homelessness in

the past year.22

Amici have personally spoken with college athletes

who have experienced such hardships. On a trip to the

University of Georgia with NCAA President Mark

Emmert (“Emmert”), Lewis met with several college

athletes, one of whom could not afford basic repairs for

his car and another who was struggling to afford food

for his daughter. Nevius regularly represents college

athletes and families who face similar hardships,

including one whose family relies on food stamps and

government-subsidized housing despite the fact that

he plays a starting position for a Power Five football

program.

Yet instead of benefitting college athletes, the

NCAA’s and its member’s “wealth extracted from . . .

young athletes . . . ends up in the hands of betterfunded individuals and entities: millionaire coaches

and athletic directors, and construction firms (for stadiums, facilities, etc.) and their shareholders.” D.Ct.

Dkt. No. 1017 ¶ 24. As noted by University of

Nebraska Chancellor Harvey Perlman, NCAA Division I schools “recruit by shifting funds from regulated

benefits for student athletes to unregulated frills,”

such as opulent athletic facilities. App. 79a-80a. In

2014, the 48 schools in the Power Five at that

time spent a combined $772 million on athletic facilities, an 89% increase from $408 million spent in 2004,

Sara Goldrick-Rab et al., Hope Ctr. for Coll., Cmty. & Just.,

Hungry to Win: A First Look at Food and Housing Insecurity

Among Student-Athletes 6, 8 (Apr. 2020), https://hope

4college.com/wp-content/uploads/2020/04/2019_StudentAthletes

_Report.pdf.

adjusted for inflation. In 2019, the NCAA’s members

spent more than $2.7 billion of their revenue on

expenses for such facilities.24

Additionally, in 2019, NCAA members used more

than $3.65 billion of their overall college sports revenue to pay coaches’ compensation. In other words,

NCAA members collectively used a greater proportion

of their college sports revenue (18.9%) to pay coaches

than to provide aid to college athletes (18.1%).25 In

fact, “a number of Division I head football coaches take

home multimillion-dollar salaries that exceed those of

many NFL coaches.” App. 54a. Between 1985 and

2010, the average salaries at public universities,

adjusted for inflation, rose 32 percent for full professors, 90 percent for presidents, and 750 percent for

football coaches.26 “In 2017, the highest paid public

employee in 31 states was a college football coach, and

in eight states the highest paid public employee was a

college basketball coach, with coaches often earning

several times as much salary as any other university

employee, including the president.” D.Ct. Dkt. No. 995

¶ 164. “Among the 39 coaches who are the highest

paid state employees, eight earned more than $5

million and 26 more earned more than $2 million.” Id.

The highest paid Division I football head coach, Nick

Saban (“Saban”) of the University of Alabama, was

Will Hobson & Steven Rich, Colleges Spend Fortune on Lavish Athletic Facilities, CHI. TRIB. (Dec. 23, 2015), available at

https://www. chicagotribune.com/sports/college/ct-athletic-faciliti

es-expenses-20151222-story.html.

NCAA Finances Database.

Id.

CHARLES T. CLOTFELDER, BIG-TIME SPORTS IN AMERICAN

UNIVERSITIES 106 (2011).

paid $9.1 million in 2020. The highest paid Division

I basketball coach, John Calipari of the University of

Kentucky, was paid more than $8 million.28 The ten

highest paid football assistant coaches were paid more

than $1.5 million, and the ten highest paid strength

training coaches were paid more than $500,000.29

In amici’s experience, these high salaries and

potential payouts often attract former professional

coaches – including Saban, who was a head coach for

the Miami Dolphins30 – who tend to expect college

athletes to be as focused on winning and athletic

success as professional athletes and, given the time

demands, to prioritize athletic success over academic

success. Coaches’ contracts further incentivize them

to focus on athletics by offering significantly greater

incentives for athletic performance than academic

performance. For example, in 2011, coaches’ contracts

in six conferences where the conference champion

received an automatic bid into a Bowl Championship

Series game (the Atlantic Coast, Big East, Big Ten,

Big 12, Pac-10/12, and Southeastern Conferences)

had athletic performance incentives of $34,381,569

and academic performance incentives of $2,922,500.

NCAA Salaries: NCAAF Coaches, USA TODAY (Nov. 17,

2020), https://sports.usatoday.com/ncaa/salaries.

NCAA Salaries: NCAAB Coaches, USA TODAY (Feb. 27,

2020), https://sports.usatoday.com/ncaa/salaries/mens-basketball/

coach.

NCAA Salaries NCAAF Assistant Coaches (Dec. 16, 2020),

https://sports.usatoday.com/ncaa/salaries/football/assistant; NCAA

Salaries: NCAAF Strength Coaches, USA TODAY (Dec. 16, 2020),

https://sports.usatoday.com/ncaa/salaries/football/strength.

See Charlie Nobles, Saban Leaving the Dolphins for

Alabama, N.Y. TIMES (Jan. 4, 2007), https://www.nytimes.com

/2007/01/04/sports/ncaafootball/04saban.html.

Coaches’ contracts with schools in five other conferences that did not receive an automatic bid (Conference USA and the Mountain West, Mid-American,

Sun Belt, and Western Athletic Conferences) had

athletic performance incentives of $10,488,621 and

academic performance incentives of $903,103. In

other words, for schools in both types of conferences,

the value of coaches’ athletic performance incentives

was more than ten times higher than academic performance incentives.31

A 2016 review of 234 head-coaching contracts from

twelve Big Ten universities found all had incentives

for athletic performance, but that nearly two-thirds

(63%) had no incentives for academic performance.32

Contracts that coaches have signed in more recent

years indicate that this trend has continued. For

example, in 2021, Saban will earn a maximum of

$100,000 as an academic bonus (if his team’s graduation rate is in the top four of the Southeastern Conference (“SEC”) – a fraction of the $800,000 he earned

by winning the College Football Playoff, in addition

to the $125,000 he earned when Alabama won the

SEC and $25,000 he earned as Conference Coach of

the Year.33

Matt Wilson, NCAA Division I Football Coaching Contracts:

A Comparative Analysis of Incentives for Athletic and Academic

Team Performance from 2006, 2009 and 2011, 11 J. CONTEMP.

ATHLETICS 237, 247-48 (2017).

Kevin Stankiewicz, Review of Big Ten Athletic Contracts

Finds Team Performance Valued More Than Athletic Performance, THE LANTERN (Dec. 5, 2016), https://www.thelantern.com/

2016/12/review-of-big-ten-athletic-contracts-finds-team-perform

ance-valued-more-than-academic-performance.

Lev Akabas & Daniel Libit, Saban and Day Contracts

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

In view of these incentives, it is hardly surprising

that “academic policies at some Division I schools

indicate[] that [their] commitment to the academic

success of college athletes is ambivalent at best” and

that “some students who have difficulty with academics are steered into courses (some fraudulent) to

keep them eligible.” D.Ct. Dkt. No. 995 ¶ 18. A 2018

report by the Commission on College Basketball noted

“there are multiple cases of compromised academic

standards and institutional integrity to keep the

money and talent flowing.”34 Remarkably, Petitioners

claim that the NCAA “serves a societally important,

non-commercial objective: higher education.” Petitioner NCAA Br. at 3. But when educational scandals

arise – like the academic fraud at the University of

North Carolina (“UNC”) designed to ensure that

Division I college athletes remained eligible to play –

the NCAA publicly disavows any responsibility for

college athletes’ education. In defending itself in

an action relating to the UNC fraud, the NCAA

claimed that “the NCAA’s regulation of intercollegiate

athletics” does not “ensure the quality of [college athletes’] educational experience.” Mem. ISO Defs.’ Mot.

to Dismiss at 15, McCants v. NCAA et al., No. 15-cv00176 (M.D.N.C. Mar. 30, 2015), ECF No. 21.

SPORTICO (Jan. 11, 2021; 10:43 AM), https://www.sportico.com/

leagues/college-sports/2021/saban-day-championship-1234620074.

Comm’n on Coll. Basketball, Report and Recommendations

to Address the Issues Facing Collegiate Basketball 2 (April 2018),

https://www.ncaa.org/sites/default/files/2018CCBReportFinal_w

eb_20180501.pdf.

III. THE NCAA HAS NO FIXED DEFINITION

OF AMATEURISM

Petitioners argue that the NCAA’s eligibility rules

restricting the amount of compensation that college

athletes may receive are necessary to “preserve amateurism” and that “the NCAA’s conception of amateurism is procompetitive.” Petitioner NCAA Br. at 2, 43;

see also Petitioners The Big Ten Conference Inc. et al.

Br. at 2. In support of their argument, Petitioners rely

on language from Board of Regents, in which this

Court noted that “[t]he NCAA plays a critical role in

the maintenance of a revered tradition of amateurism

in college sports.” 468 U.S. at 120. However, this

Court made clear in Board of Regents that its decision

was “not based on … respect for the NCAA’s historic

role in the preservation and encouragement of intercollegiate athletics.” Id. at 100-101 (emphasis added).

And even if Board of Regents were based on the

concept of “amateurism” as it existed in 1984, that

would not make it relevant today, because NCAA

President Emmert admitted that the definition of

amateurism “has evolved and constantly does.”

ER684-85. In other words, “[a]mateurism does not

have a fixed definition, as NCAA officials themselves

have conceded.”35 App. 38a. In addition to Emmert,

former NCAA Vice President David Berst admitted

that the NCAA’s definition of an “amateur” is “not

steeped in any sacred principle that had to be

While the NCAA Division I constitution describes a “Principle of Amateurism,” that principle does not define what “amateurism” is. NCAA Division I Manual at 4 (Const. art. 2.9). And,

as the district court noted, “the principle does not mention or

address compensation, nor does it prohibit or even discourage

compensation. Accordingly, no link appears between this principle and the challenged compensation limits.” App. 141a.

preserved.” ER681. Mike Slive, who served as commissioner of the SEC, one of the Power Five, from 2002

to 2015, testified that amateurism is “just a concept

that I don’t even know what it means” and that he had

“never been clear on . . . what is really meant by

amateurism.” App. 68a, 84a.

“Though the NCAA defined amateurism during this

litigation as ‘not paying the participants,’ the district

court observed that this purported pay-for-play prohibition is riddled with exceptions.” App. 19a. In its

decision, the district court engaged in a detailed discussion of many “forms of payment, often in unrestricted cash, from schools and other sources, are

allowed by the NCAA as ‘not pay,’ and thus as not

inconsistent with amateurism,” some of which are

“provided for student-athletes in exchange for their

athletic performance, making it similar to what a

reasonable person could consider to be ‘pay for play,’”

App. 85a-92a, and concluded that the NCAA’s

limitations on college athletes’ compensation “do not

follow any coherent definition of amateurism, including Defendants’ proffered definition of no ‘pay for

play’ or even ‘pay.’ The only common thread underlying all forms and amounts of currently permissible

compensation is that the NCAA has decided to allow

it.” App. 92a. For example, the NCAA bylaws provide

that “[i]n tennis, prior to full-time collegiate enrollment, an individual may accept up to $10,000 per

calendar year in prize money based on place finish

or performance in athletics events,” but provide no

similar exception for any other sports.36

Additionally, college athletes are permitted to earn

professional-level compensation in one sport while

NCAA Division I Manual at 86 (Bylaw § 12.1.2.4.1).

playing as a college athlete in another.37 Amici’s experience demonstrates that receiving such compensation

does not erode the distinction between college athletes

and professionals. Cris Carpenter (“Carpenter”), a

teammate of amicus Lewis, played NCAA Division

I football for the University of Georgia and was

drafted to play professional baseball by the St. Louis

Cardinals, who paid him a signing bonus of $160,000.38

Lewis never observed Carpenter being treated any

differently than himself or his teammates by fans,

coaches or other players, and Lewis perceived both

Carpenter and himself as college athletes because they

were both attending the University of Georgia while

playing on its football team. Lewis’ view is consistent

with testimony of other NCAA officials, who “testified

that consumer demand for Division I basketball and

FBS football is driven by consumers’ perception that

student-athletes are, in fact, students.” App. 107a;

App. 146a (“Some witnesses testified that consumers

enjoy college sports because of the difference between

college sports and professional sports” and “[m]uch of

this difference is based in the fact that studentathletes are students playing for their school”). And

his view is also consistent with the trial testimony

below. Plaintiff Martin Jenkins testified that the

starting quarterback on his Clemson football team

received a signing bonus worth more than $1 million

after being drafted by a Major League Baseball team,

yet this payment did not undermine the perception or

reality that Jenkins’ teammate remained a college

athlete. Pet. App. 113a.

Id. at 89 (Bylaw § 12.1.3).

Big Bonus to Carpenter, N.Y. TIMES (Sept. 2, 1987), https://

www.nytimes.com/1987/09/02/sports/sports-people-big-bonus-tocarpenter.html.

Because college athletes are perceived as such due

to their status as college students, the distinction

between amateurs and professionals is not based on

the amount of compensation that they receive, but on

the purpose and nature of that compensation. As

Lewis has explained, compensation received by professionals is “not about . . . going to school, . . . it’s about

paying somebody to play a sport.” App. 107a.

IV. THE NCAA’S COMPENSATION RESTRICTIONS DO NOT PRESERVE CONSUMER DEMAND

The NCAA argues that its compensation restrictions

“are procompetitive because they promote the principle of amateurism, which enhances consumer demand.”

Id. But as the district court noted, “the challenged

limits on compensation cannot be deemed procompetitive simply because they promote or are consistent

with amateurism. To be procompetitive, they must

have some procompetitive effect on the relevant

market.” App. 141a. Given the NCAA’s admissions

that consumer demand for college sports is driven by

consumers’ perceptions of college athletes as students,

“the district court reasonably concluded that market

competition in connection with education-related

benefits will only reinforce consumers’ perception of

college athletes as students, thereby preserving

demand.” App. 43a. To the extent that the NCAA’s

“amateurism” argument is based on the Principle of

Amateurism in its constitution, providing additional

education-related compensation to students is also

consistent with that Principle. As the district court

noted, “[t]he Principle of Amateurism in [the NCAA’s]

constitution . . . holds that amateur student-athletes

should be motivated primarily by education. Education-

related compensation and benefits would enhance the

student-athletes’ connection to academics.” App. 121a.

The district court also found that the NCAA did not

otherwise “offer evidence to establish that the challenged compensation rules, in and of themselves, have

any direct connection to consumer demand.” App. 83a.

In fact, “[t]he only economic analysis in the record that

specifically speaks to the effects of compensation

amounts on consumer demand is that by Dr. [Daniel]

Rascher,” Respondents’ economics expert, who determined that “revenues, which are an indicator of

demand, at the NCAA, conference, and school levels

have increased since 2015, when [college athletes’]

permissible compensation increased significantly as

a result of the change to the grant-in-aid limit that

year and the expansion or creation of other benefits

that schools can provide on top of a full grant-in-aid.”

App. 144-45a. Respondents’ survey expert, Dr. Hal

Poret, determined that “viewership and attendance

would not be negatively impacted” if eight types of

compensation currently prohibited or limited by

NCAA rules were permitted. App. 102-03a. Petitioners presented no contrary analyses, and Kevin

Lennon, who “worked for the NCAA for more than

thirty years, testified that he does not recall any

instance in which any study on consumer demand

was considered by the NCAA membership when

making rules about compensation.” 103-104a. The

Ninth Circuit found that this record “amply

support[ed]” the district court’s finding “that caps on

non-cash, education-related benefits have no demandpreserving effect and, therefore, lack a procompetitive

justification.” App. 36a.

It is also notable that “student-athletes’ receipt of . . .

compensation in excess of the cost of attendance . . .

has not led to a reduction in consumer demand for

college sports as a distinct product” even when that

compensation is not related to education. App. 143a.

In 1957, an Official Interpretation published by the

NCAA rules permitted college athletes to receive

“laundry money” – $15 a month for incidental

expenses.39 Although “laundry money” was disallowed

in 1975, supposedly as a cost-cutting measure, former

NCAA Executive Director Byers later admitted that

he had no indication that laundry money “lessened

the popularity or demand for football or college basketball” and that he did not believe “the NCAA needs to

restrict grants-in-aid so that they do not cover

incidental expenses in order for amateur college

athletics to exist.”40

More recently, “since 2015, international studentathletes have been allowed to receive unlimited payment from their national Olympic governing body in

exchange for their performance at certain international competitions. And student-athletes continue to

receive unlimited funds from the U.S. Olympic

Committee for their performance in the Olympics.”

App. 91a. While the NCAA Bylaws provide no explanation why college athletes are permitted to receive

such compensation, Lewis’ decades-long experience

with the Olympic Games suggests that there is an

important parallel between college athletes and

Olympic athletes. The popularity of the Olympic

Games is rooted in the fact that viewers feel pride for

their countries and perceive Olympic athletes as being

motivated to compete by a similar pride, not by any

GERALD GURNEY ET AL., UNWINDING MADNESS: WHAT WENT

WRONG WITH COLLEGE SPORTS AND HOW TO FIX IT 13 (2017).

JOE NOCERA & BEN STRAUSS, INDENTURED: THE INSIDE

STORY OF THE REBELLION AGAINST THE NCAA 145 (2016).

promise of sponsorship or compensation. There is evidence to suggest that the popularity of college sports

is analogously rooted in the fact that students and

alumni feel pride for their school and perceive college

athletes as being motivated to compete by a similar

pride, not by any compensation they may receive. See

App. 11a (noting that the district court in O’Bannon

found “evidence that ‘school loyalty and geography’

primarily drive consumer demand”) (quoting O’Bannon

v. NCAA, 7 F. Supp. 3d 955, 1001 (N.D. Cal. 2014),

aff’d in part, vacated in part, 802 F.3d 1049 (9th

Cir. 2015). This evidence suggests that so long as

consumers perceive college athletes – and themselves

– as being motivated by school spirit, rather than

by compensation they receive for their play, increasing

the amount of compensation that college athletes

receive will not suddenly transform them into

professionals.

Although many athletes who compete in the Olympics are not college athletes, the history of the Olympics themselves further demonstrates that providing

athletes with compensation does not inherently reduce

consumer demand. At the dawn of the modern Olympics, competitors were prohibited from receiving compensation for their sports. Jim Thorpe was famously

stripped of two Olympic gold medals that he won in

the 1912 Olympics because in the summer of 1910 he

had played baseball for $2.00 a game.41 The IOC later

eliminated its ban on athlete compensation, and in

1994, the USOC announced it would award athletes

$15,000 for earning a gold medal, $10,000 for a silver

J. G. Joakim Soederbaum, Leveling the Playing Field –

Balancing Student Athletes’ Short and Long-Term Financial

Interests with Educational Institutions’ Interests in Avoiding

NCAA Sanctions, 24 MARQ. SPORTS L. REV. 261, 287 (2013).

medal, and $7,500 for a bronze medal.42 By 2016, the

amounts had increased to $25,000 for gold, $15,000 for

silver, and $10,000 for bronze.43 Other countries pay

considerably larger awards. For example, Singaporean athlete Joseph Schooling received an award of

$1 million Singaporean dollars (approximately $750,000

USD) for a gold medal in the 2016 Rio Olympic Games.44

As noted above, the NCAA’s bylaws permit college athletes to accept this compensation for athletic performance, even though it would seem to epitomize what

the NCAA otherwise calls “pay-for-play.”

Consistently rising revenues generated by the

Olympics reflect that compensating Olympic athletes

has had no negative impact on consumer demand, and

that consumer demand has continued to increase even

as athletes’ compensation increased. During the

three-year period from 1993 to 1996, the first period in

which such payments were permitted, IOC’s TOP

sponsorship program, which raises revenue in threeyear cycles, had ten sponsors who provided $279

million in revenue. During the period from 2013 to

2016, TOP had twelve sponsors who provided over $1

Christine Brennan, U.S. Athletes to Earn $15,000 for Each

Olympic Gold Medal, WASH. POST (May 12, 1993), https://www.

washingtonpost.com/archive/politics/1993/05/12/us-athletes-toearn-15000-for-each-olympic-gold-medal/db9cd218-7f65-41489364-3b130cfbb286.

Id. Currently, the awards are $37,500 for gold, $22,500 for

silver, and $15,000 for bronze. Athlete Services, TEAM USA

(2021),

https://www.teamusa.org/Team-USA-Athlete-Services/

Financial-Resources.

Tales Azzoni, Gold Medal Not the Only Prize for Most

Olympic Champions, ASSOC. PRESS (Aug. 26, 2016), https://

apnews.com/article/42a93d5073f64d53a842421e4b16d5ec.

billion. Broadcast revenue has similarly increased.

In 1992, the Barcelona Olympic Games were broadcast

in 193 countries and generated $88 million in broadcast revenue. In 2016, the Rio Olympic Games were

broadcast in 220 countries, where they were watched

by half the world’s population and generated nearly

$2.9 billion in broadcast revenue.46 As Olympic

historian Bill Mallon recently explained, “If anything,

the Olympics are more popular and powerful than

ever. It has been decades since they opened up the

Games to the professionals, and they’re still going

strong.”47

The district court found that in college athletics, as

with the Olympics, payments of compensation do not

inherently reduce consumer demand, because “compensation has been paid and increased while college

athletics,” like the Olympics, “has become and remains

exceedingly popular and revenue-producing.” App.

92a.

CONCLUSION

In sum, amici’s experiences indicate that college

sports have been radically transformed since the time

that this Court decided Board of Regents in 1984.

While the NCAA still refers to college athletes as

“amateurs,” the market in which they compete has

generated ever-increasing amounts of revenue comparable to those earned by professional sports, and the

Int’l Olympic Comm., Olympic Marketing Fact File 8 (2020).

Id. at 24, 27, 30.

Patrick Hruby, The Olympics Show Why College Sports

Should Give Up on Amateurism, THE ATLANTIC (July 25, 2012),

https://www.theatlantic.com/entertainment/archive/2012/07/theolympics-show-why-college-sports-should-give-up-on-amateurism

/260275.

NCAA and its members have shifted their focus from

benefitting college athletes to enriching themselves at

college athletes’ expense. The NCAA’s concept of

“amateurism” has no fixed definition, and in today’s

changed world, amounts to little more than a tool that

the NCAA and its members use to maintain their

dominance in the increasingly popular market for

college sports. The NCAA has offered no evidence that

its limitations on college athletes’ receipt of educationrelated benefits are necessary to preserve consumer

demand in this market and, in fact, permitting

college athletes to receive such benefits may actually

strengthen consumers’ perceptions of college athletes

as college students. More importantly, permitting

college athletes to receive additional education-related

benefits will level the playing field between college

athletes and the schools who benefit from their labor.

Accordingly, amici respectfully urge this Court to

affirm the Ninth Circuit Court of Appeals’ decision

upholding the district court’s injunction.

Respectfully submitted,

JAMES W. QUINN

Counsel of Record

MICHAEL M. FAY

EMILY BURGESS

BERG & ANDROPHY

120 West 45th Street

38th Floor

New York, NY 10036

(646) 766-0073

jquinn@bafirm.com

Counsel for Amicus 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.