Quite a few heavy hitters have signed on with amicus briefs in support of the Alston plaintiffs. I won’t list them all, but will cite the two most significant.
One was filed by former NCAA officials.
In an unprecedented show of collective dissent from those who have served within the NCAA’s ranks, six former NCAA employees filed an amici curiae brief Wednesday in support of former college athletes who are suing college sports’ governing body over antitrust claims related to scholarship restrictions.
In a “friends-of-the-court” petition in the Supreme Court case NCAA v. Alston, five former NCAA investigators and a one-time senior executive have said the association’s position has failed to keep up with the times.
“Though they once supported and enforced all of the NCAA’s rules,” the brief states, “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.”
Among the group, the most notable petitioner is Mark Lewis, who served as NCAA executive vice president until 2016. In 2014, Lewis was among the NCAA’s key trial witnesses in the separate class action lawsuit brought by former UCLA basketball star Ed O’Bannon over the publicity rights of college athletes.
The other five pro-Alston petitioners—Tim Nevius, Renee Gomilla, Mark Neyland, Angela O’Neal and Jasmine Williams—worked in various enforcement roles within the NCAA.
Will that carry more weight than the one filed by a couple of guys who didn’t understand the issues and another doing his lawyer friend a favor? Gee, I dunno.
The bigger one — the biggest one, in fact — is this:
With regard to the DOJ’s request to participate, understand that it’s not seeking to overthrow amateurism altogether. It wishes to step in to make the point that the relief the NCAA is seeking is overbroad.
In its amicus brief, the Justice Department asserts that the NCAA and its members ought not to receive preferential treatment under antitrust law. This is an area of law that requires competing businesses (such as colleges that vie for students, faculty, staff, grants, media attention, among many other pursuits) to only conspire in ways compatible with the basic tenets of competitive markets. The brief acknowledges that “schools must agree on at least some aspects of the competition” in order to make college sports work. The brief also points out that the NCAA and member schools have long portrayed the amateur status of athletes as “essential” to organizing and marketing college sports.
The Justice Department doesn’t necessarily disagree with the broad concept of amateurism. However, it objects to amateurism avoiding standard scrutiny for antitrust law litigation. “Contrary to [NCAA’s] contentions,” the brief maintains, neither the unique characteristics of the college sports industry nor case precedent “suggest that the challenged restraints should have been analyzed [by the Ninth Circuit] under a standard more relaxed than the traditional rule of reason.” The Justice Department’s reference to “rule of reason” is a reference to the customary way collusive activities by competing businesses are judged, whereby possible procompetitive qualities of the collusion (such as more choice for consumers or greater economic growth) versus anticompetitive harms of the collusion (such as higher prices or diminished innovation) are weighed.
The brief also casts doubt on NCAA worries over the potential loosening of amateurism rules for educational expenses. To that end, the Justice Department questions why the NCAA “highlights the possibility of atypical lucrative internships given by boosters” when the Ninth Circuit’s ruling “does not affect NCAA rules that prohibit boosters from providing such internships.” This reiterates a theme expressed throughout the brief: If upheld, the Alston ruling wouldn’t prevent the NCAA from continuing to deny compensation for athletes when that compensation is tied to athletics.
That’s true, as far as it goes, but still a disastrous result from the NCAA’s viewpoint, because nothing about it would prevent state legislatures and Congress from restricting the NCAA’s amateurism enforcement reach. Without an antitrust exemption, Mark Emmert is going to get nibbled to death. And he’s not getting one from Congress.
The DOJ’s request is a BFD, in other words.
First, the justices will likely accord added weight to the views of the Justice Department than they would, with all due respect, law professors, attorneys, economists, players’ associations, athletes and other interested parties. The Justice Department is not a mere commentator or observer. It is charged with enforcing federal antitrust law in the United States. The Department’s views on a federal antitrust dispute are thus especially meaningful. The agency also has an ongoing stake in college sports litigation. In January, the Justice Department signaled concerns to the NCAA over potential name, image and likeness guardrails. It will likely continue to weigh in on amateurism, especially should any of the federal NIL bills advance in Congress and land on the desk of President Joe Biden.
Second, the Justice Department wants to participate in the oral argument. It wishes to do for purposes of a “divided argument.” This occurs when the Solicitor General—the federal officer who represents the country before the Supreme Court—determines that the interest of the country would be better served by having a direct voice in the oral argument than to rely on the parties’ attorneys (here, attorneys for the NCAA and Alston). The Solicitor General can draw on department expertise and historical understandings.
Again, a sensible organization would read the writing on the wall and try to salvage what it could via a settlement. But this is the NCAA we’re talking about.
UPDATE: I wonder if this is destined to come up in oral arguments.
Feel the amateurism!