Category Archives: See You In Court

Kessler, on his victory lap

Compare this Q&A with Alston’s winning attorney to the nonsense Emmert spewed:

SI: What’s your response to the schools that say: This is going to turn into an arms race, and sorry, we don’t have $5,000 worth of computer equipment and iPhones and other educational benefits to bestow on our students, we just don’t have the resources?

JK: So, it’s an argument that sounds good, and makes absolutely no factual sense. And, the reason is, that arms race exists today. It exists when Alabama pays each of its strength and conditioning coaches $550,000 per year. It exists when these schools spend $150 million on some palaces for the athletes to live by themselves and have their own billiard rooms and gold-plated locker rooms, of which you can’t possibly imagine. There is no equality of competition in college sports now. There are the rich and there are the not rich. And, that’s not going to change today. But what will change is instead of Nick Saban making $11 million, maybe he’ll only make $9 million and the athletes will benefit from the difference.

SI: What excess did you come across that offended you the most?

JK: The spending is not what offended me the most. What offended me the most in this record is how the athletes are treated. It’s the fact that the average BCS football players and Division I basketball players work more than 50 hours a week for their schools, before they attend a single class. That they’re told not to pursue majors or classes that they’re interested in because it will conflict with the team. That their first priority is to support their team, not to be students. And then they come in and say, “Oh but we can’t let you have any benefits because you won’t be integrated as students in the campus.” It is so offensive. It is so exploitative. And let’s not forget that the majority of football and Division I basketball players are students of color. That’s what offends me the most.

“But what will change is instead of Nick Saban making $11 million, maybe he’ll only make $9 million and the athletes will benefit from the difference.”  Ditto for the administrators.  That’s what the amateurism fight has been about.  Despite the money rolling in, the suits don’t want to share.  They never have.

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The NCAA’s next nightmare

The ink is barely dry on Alston, and the NCAA is already getting slapped around on something else — by Judge Wilken, as a matter of fact.

The NCAA’s legal problems regarding its limits on compensation for college athletes continued Thursday, when a federal judge denied its request to dismiss a lawsuit that not only challenges any limits on athletes’ ability to make money from their name, image and likeness, but also brings into play the prospect of athletes getting money from college sports TV rights fees[Emphasis added.]

… In addition to asking that the NCAA be prevented from having association-wide rules that “restrict the amount of name, image, and likeness compensation available” to athletes, the suit also seeks unspecified damages based on the share of television-rights money and the social media earnings the plaintiffs claim athletes would have received if the NCAA’s current limits on NIL compensation had not existed.

Such a damages award would be in the hundreds of millions of dollars and, under antitrust law, the basic award would be tripled.

It’s a long way to the finish line, but let’s just say at this point, Emmert’s probably willing to crawl from Indianapolis to DC on his hands and knees to get that antitrust exemption.

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Your post-Alston primer

I saw a lot of apprehension based on misconception in yesterday’s comment thread about the SCOTUS’ Alston decision, so I thought I’d devote a post to what the case means now and where it might lead to.

First, it’s important to note what the decision is exactly about.

The Supreme Court handed down a heavily caveated victory for elite college athletes on Monday. The immediate impact of the Court’s unanimous decision in National Collegiate Athletic Association v. Alston is that many elite student-athletes will receive additional education-related compensations, such as additional scholarship money.

To make it even more limited, that amount was capped by the trial judge at $5900 per athlete, per year.  To give you some perspective on the impact of that amount, try this.

Now, before you cry out “but what about the schools that can’t afford to pay that?”, keep in mind that this isn’t a mandate.  The relief sought by the plaintiffs was simply to prevent the NCAA from imposing limits on education-related benefits athletes can receive for playing college sports (and, as you can see, there is still a financial limit in play).  To put it in other words,

It’s a free market, competitive adjustment.  And it’s specifically tailored to education benefits.  That’s what Alston means in the immediate sense.

That being said, it’s also true there’s a bigger impact from it than just those particular benefits.  The NCAA got smacked in the face, hard, about its belief that it was immune from antitrust law.  As Gorsuch put it in the court’s unanimous ruling,

… to the extent that the NCAA “means to propose a sort of judicially ordained immunity from the terms of (antitrust law) for its restraints of trade—that we should overlook its restrictions because they happen to fall at the intersection of higher education, sports, and money—we cannot agree.”

In other words, the SCOTUS told the NCAA that if it and the schools want antitrust immunity, seek it from Congress, not the courts.  The NCAA’s problem is that right now, it’s naked.

Now, a lot of attention is being paid to Kavanaugh’s stinging concurrence.

In a concurring opinion, Justice Brett M. Kavanaugh wrote: ” … there are serious questions whether the NCAA’s remaining compensation rules can pass muster under ordinary” antitrust legal analysis. Kavanaugh added that the NCAA “must supply a legally valid” justification that “its remaining compensation rules” have sufficient value to promoting competitive balance and that the benefits outweigh the harm being done to the athletes.

“As I see it, however, the NCAA may lack such a justification,” Kavanaugh wrote.

The NCAA and its attorneys have tried yawning past that.

It’s like force of habit for them.  And, sure, it’s not like they have much else they could say, but while Kavanaugh’s opinion doesn’t have the weight of a full court ruling behind it, it’s certainly a warning about the road the NCAA takes from here.

The lower courts struck down the NCAA’s limits on education-related compensation for athletes, but left in place other limits on compensation — and the Supreme Court upheld this baby-splitting result in Alston.

But, as Gorsuch notes in his opinion, a major reason why the Supreme Court did not go further is that the plaintiffs did not ask them to do so. As he writes, “the student athletes [did] not renew their across-the-board challenge to the NCAA’s compensation restrictions” when their case reached the Supreme Court.

Although the full Court did not weigh in on whether elite student-athletes should be entitled to more compensation than the Alston opinion requires, Justice Brett Kavanaugh wrote a separate concurring opinion where he argues that “the NCAA’s remaining compensation rules also raise serious questions under the antitrust laws.”

As Kavanaugh writes, “the NCAA’s business model would be flatly illegal in almost any other industry in America.” Among other things, the NCAA “controls the market for college athletes;” it “concedes that its compensation rules set the price of student athlete labor at a below-market rate”; and it “recognizes that student athletes currently have no meaningful ability to negotiate with the NCAA over the compensation rules.”

That’s exactly the sort of iron grip over pricing that antitrust laws are supposed to prevent.

It remains to be seen whether Kavanaugh’s opinion will someday become the law, but it will likely signal to student-athletes that they should consider filing a new lawsuit challenging the NCAA’s remaining restrictions on compensation.

Given the NCAA’s track record in such litigation…

… you’d think that would freak the membership out.  It also presents an opportunity for them to get their heads out of their collective ass.  (History defying as that may be, I know.)

Will they take it?  College athletes’ NIL compensation presents an immediate test.  Early results are muddy.

… A group of six conference commissioners, three from the Power 5, are encouraging the DI Council to scrap its long-readied NIL proposal and instead adopt an alternative plan. Under the plan, the NCAA would exempt itself from NIL completely. Schools in states with an NIL law may follow that law without penalty, and schools located in states without a statute are granted permission to each create and administer their own NIL policy, as long as they use two guiding principles: no pay for play or recruiting inducements.

The latest revelation has further delayed the long-awaited NIL vote and hurtled high-level administrators into a space of disagreement during the 11th hour of a process that began two years ago.

“In hindsight, I’m saying ‘S—, why didn’t we act on this in January?’” says one NCAA decision-maker. “We’ve done it to ourselves. Everybody has their own agenda. If we come out of this without doing anything, we are dysfunctional.”

“What a mess,” says another, both granted anonymity to speak with SI. “That’s exactly the right term. It’s a mess. If it doesn’t pass, you’ve got chaos.”

To summarize,

“This decision not only puts at risk any new legislation that might be put forward on NIL, but it puts at risk all restrictions the NCAA has on athlete compensation,” says Gabe Feldman, a Tulane law professor and expert on NIL matters.

The NCAA’s long-constructed NIL legislative proposal is rife with athlete restrictions. Most notably, the proposal prohibits athletes from using school marks and logos in endorsements, outlaws them from using school facilities for NIL activities and bans them from using university-provided content in NIL ventures.

“I don’t know how you can read the Supreme Court decision and not be concerned about being overly restrictive,” says one member of the DI Council. “It should cause everybody to take a deep breath. The proposal establishes restrictions.”

Or, if you prefer the tl;dr version:

“It feels like the NCAA is between three rocks and four hard places,” Feldman says. “There are so many forces closing in on them.”

It’s a mess of their own making.  Alston took seven years to resolve!  Mark Emmert’s had plenty of time to settle for something the schools could have lived with and it likely would have been less than it’s going to take to settle now.  Congress may not be populated with a bunch of rocket scientists, but one thing you can say about most politicians is that they know how to leverage a favorable situation.

Sen. Maria Cantwell, as the chair of the Commerce Committee, the most powerful lawmaker in the NIL debate, says the court’s decision “gives new urgency” to negotiations. Sen. Richard Blumenthal, at the center of negotiations, told SI that the ruling is “a gigantic kick in the butt” for congressional talks and that it’s possible an agreement can be reached by the time lawmakers break for August recess.

“It clears away the myth of amateurism,” he says. “Unanimous Supreme Court decisions are rare, particularly for this court. There will be additional force as a result of this one. ‘Force’ meaning not only legal persuasiveness, but also practical support for athletes rights.”

The NCAA is going to have to sue for terms.  They’re likely to get some form of an antitrust exemption, but they’re going to have to give up quite a bit to get it.  What they’d best hope is that they’re not playing the role of Germany in the Versailles Treaty.

Needless to say, this still has a long way to go from here.

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9-0, bitchez

The Alston ruling is out, and if you’re the NCAA, it ain’t pretty.

No, this doesn’t mark the end of amateurism, since that was not what Alston was about.  But there’s only so many times a door can get slammed in your face, by the public, by state governments, by the courts and soon to be by Congress, before you get the message you can’t go inside anymore.

The decision the NCAA made to appeal Alston has proven disastrous for them.  Where now?  Sadly, I suspect the NCAA doesn’t have the first clue about what to do, other than continuing to procrastinate.

Meanwhile, the Supreme Court of the United States just declared it’s open season for antitrust lawyers on the NCAA.

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UPDATE:  This part from Kavanaugh’s concurrence, where he roasts the NCAA’s manipulation of the romance of amateurism, is just brutal.

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UPDATE #2:  More Kavanaugh.

If I didn’t know any better, I’d say he’s been reading the blog.

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UPDATE #3:  And, of course, the take you’ve been waiting for.

The man doesn’t miss.

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UPDATE #4:

In other words, they got nothing.

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Alston goes to the Supremes.

If the NCAA felt good about its chances of having the Ninth Circuit’s ruling in Alston overturned — after all, it’s not a stretch to assume the SCOTUS wasn’t taking the appeal simply to pat the 9C on the back for a good job — it probably doesn’t feel that way after the line of hostile questioning its side took yesterday.

In many respects, the justices hammered the NCAA. They pried into the organization’s amateurism policy, criticizing a model that allows coaches, administrators and executives to make millions while “the workers,” says one justice, go unpaid. Several justices questioned the merits of the NCAA’s grievances, referring to them merely as “complaints” that shouldn’t be before the court in the first place. After all, asked Justice Brett Kavanaugh, what’s an extra $5,800 per athlete when executives make billions from television revenue?

“Schools are conspiring, agreeing with competitors, to pay no salaries to workers,” Kavanaugh said. “It seems somewhat disturbing.”

In one of the most significant and maybe stunning moments, Clarence Thomas, another conservative justice who experts say rarely speaks up during cases, prodded Waxman over million-dollar coaching salaries.

“It strikes me as odd,” he said, “that coaches’ salaries have ballooned and they are in the amateur ranks, as are the players.”

Later on, Thomas showed his affinity for the college game, citing the “transfer portal” during one question.

The justices seemed to agree that the NCAA provided no evidence in its filings to suggest that fans would be less interested in college sports if athletes receive greater benefits, striking at the heart of the organization’s case.

On the other hand, several of the justices seemed uneasy about the consequences of siding with the plaintiffs.

Addressing acting solicitor general Elizabeth Prelogar, who joined the arguments for the plaintiff because the Justice Department has taken a position on the case in their favor, Justice Sonia Sotomayor said: “I’m not sure that you have given me comfort on some of the questions that my colleague, the chief justice, asked, which is, ‘How do we know that we’re not just destroying the game as it exists, meaning we’re being told by Mr. Waxman that all of these educational-related payments can become extravagant and, as a result, be viewed by the public as pay for play?’ ”

Or, as Justice Elena Kagan called it during questioning of Kessler, “the kind of floodgates argument – like what’s next? (Athlete compensation) is just going to go up and up and up, and pretty soon it will just be a regular labor market.”

It’s a mug’s game to rely on oral arguments to predict the outcome of the case, so I won’t even try to go there.  Dellinger outlines the four most likely outcomes:

A decision is likely to come in one of four forms: (1) a narrow plaintiff ruling that upholds broader amateurism policies; (2) a more broad plaintiff ruling that destroys the amateurism defense and cracks the door for more legal challenges to the NCAA model; (3) a narrow ruling in favor of the NCAA that strikes down the lower courts’ decision; (4) a more broad NCAA ruling that upholds the amateurism model.

My feeling is that, intellectually, the Court knows the NCAA’s position is untenable.  However, emotionally, there is some sympathy for the abstract notion of amateur athletics that’s tugging at the justices.  Combined, that suggests to me whatever comes as a ruling (probably not until mid-summer) will likely be more narrow than not.

If anything surprised me about the questioning yesterday, it’s how well informed most of the justices appeared to be about the issues and, specifically, about how the NCAA and the schools manage college football.  We’ll find out in a few months where the SCOTUS is letting amateurism head.

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The law, in all its majesty

The Alston oral arguments are underway right now.

Question:  if you had to pick the Supreme Court justice who would be the first ever to mention the transfer portal, whom would you choose?

Answer in comments.

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UPDATE:  I just…

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Say what you want about the tenets of amateurism, Dude, at least it’s an ethos.

Just a reminder that the Supreme Court is scheduled to hear oral arguments for the Alston appeal.  You can read a good summary of what’s at stake here, but here’s a succinct reminder that, when push comes to shove, amateurism abides:

If Alston wins, would that mark the end of amateurism?

No. “Amateurism” is a label used to define a set of NCAA rules that govern college sports and that, by prohibiting certain types of commercial opportunities, attempt to distinguish college athletes from professional ones. These rules have changed over the years—including through reforms sparked by Ed O’Bannon’s litigation—and will continue to evolve, regardless of the Court’s forthcoming ruling. Nothing will “end” amateurism as much as change it.

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Meanwhile, at the Supreme Court…

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.

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UPDATE:  I wonder if this is destined to come up in oral arguments.

Feel the amateurism!

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Amateurism, you turn me on.

Dennis Dodd summarizes one of the arguments the Alston lawyers made to the Supreme Court:

At the core of the NCAA’s argument is that paying players will turn off fans, thus depressing the demand for the “product,” in this case, major-college sports as a whole.

Alston lawyers argue that players already get financial rewards, including for academic achievement, and that has not affected fan interest to this point. There’s bowl gifts (capped at $550 per player) given out “simply for being on a team.” In addition, the cost of attendance stipend that has been around since 2015 is awarded only to athletes.

We’ve already told you about former LSU long snapper Blake Ferguson who “made” $12,000 per year while in school from scholarship checks and cost of attendance. Heisman Trophy winner Jameis Winston reportedly received $80,000 to purchase insurance as he headed to the NFL Draft through an NCAA Student Assistance Fund at Florida State.

And you might have noticed, the NCAA is fully on board with name, image and likeness compensation as it “modernizes” its rules. That compensation could reach into the high six figures for social media accounts alone.

I know, I know.  Amateurism romance doesn’t care about your facts.  The NCAA knows that, too.

“A parade of NCAA, conference and university witnesses admitted that they had never even attempted to study any relationship between the compensation restraints and consumer demand,” the Alston brief said.

Pffft.  And why should they?  The heart wants what the heart wants, amirite?

All mockery aside, this feeling argument grows ever more detached from reality, and that’s got to be putting more and more strain on the fiction the NCAA continues to peddle, as David Hale notes.

Screenshot_2021-03-05 💫🅰️♈️🆔 on Twitter

That last observation is the real kicker.

I know that many of you believe that player compensation will prove to be the final straw for you, and that, once a reality, will turn you away from collegiate football for good.  From my standpoint, authorized player compensation is merely the culmination of a series of events over decades that have steadily eroded the allure Hale refers to.  Conference realignment and broadcast partnerships have traded college football’s uniqueness for a mess of pottage, at least from this fan’s perspective.  Cutting players in on a piece of the action isn’t going to change any of that.

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With friends-of-the-court like these…

I don’t know whether to laugh or shake my head over this.

A “friend-of-the-court” brief filed last month in a potentially landmark U.S. Supreme Court case on NCAA amateurism purported to show that at least some former athletes, including those who participated in the so-called revenue sports, don’t want intercollegiate athletics to open the door to schools paying players.

The amici curiae brief in NCAA v. Alston, for which SCOTUS will hear oral arguments on March 31, has 18 former college athletes expressing support for the stance of college sports’ governing body. The association has appealed a lower federal court ruling that says the NCAA violates antitrust laws with some of its caps on athletic scholarships.

In making their case, the pro-NCAA filing states that the athletes’ interest “lies in ensuring the proper adherence to the revered tradition of amateurism and the continued availability of intercollegiate athletics.”

But in recent interviews, several of the brief’s signatories, including its most high-profile name—two-time Heisman Trophy runner-up and retired NFL running back Darren McFadden—suggested they weren’t actually clear with which side they were on, at least when it comes to amateurism, or had joined in the effort for largely peripheral reasons.

Yeah, I’d say this qualifies as not being clear.

In a telephone conversation last week, McFadden indicated that he was largely unaware of what the grant-in-aid litigation was about and gave indications that his intuitions were more in line with the plaintiffs.

“Once you are an adult, you want to make sure you can take care of your family…. You don’t really get that opportunity to help your family out [while in college],” McFadden said, later adding that he supported college athletes getting an additional stipend to their scholarship. When asked about what personal experiences had informed his perspective on the subject of college athlete compensation, McFadden spoke about being an SEC football star who was unable to afford paying a $50 parking ticket.

In a separate interview, Walter Bond, a former basketball star at Minnesota who played four seasons in the NBA, said that despite being part of the amici curiae, he believed college athletes were, in fact, employees of the universities they played for—a nonstarter for any legal defense of amateurism. “I think I must have misunderstood,” Bond later said about the case, acknowledging that it was possible he didn’t actually agree with the NCAA’s position.

Oops.

Then, there’s also the “just doing a buddy a solid” angle.

Meanwhile, another former college basketball player who signed the brief, Tre’ Kelley, suggested he had primarily joined the amici curiae because of his connections to Orrick Herrington & Sutcliffe, the firm that filed the brief.

“I am actually doing a favor for a good buddy of mine who works for the firm,” Kelley told Sportico. After initially agreeing to speak for this story, Kelley politely declined to answer other questions, saying that he had been contacted by Orrick an hour before a scheduled interview and advised to not talk about the case with the press.

In a statement, Will Stute, one of the Orrick lawyers who authored the brief, said it “fully and accurately reflects their support of the NCAA’s position on the issues before the Supreme Court. It is false and misleading to suggest otherwise.”

Heavens to Betsy, we can’t have that!

I’d say the NCAA ought to be ashamed of itself, but that particular horse escaped from the barn a long time ago.

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