For decades, the National Collegiate Athletic Association (“NCAA”) has been built on competition by unpaid athletes, despite revenues that reached the billions in recent years.[i] With these increased revenues, has come public outcry for student-athletes to receive more financial benefits for their services. One potential avenue to greater compensation for athletes is through the use of their names, images and likenesses (“NIL”s), which make up an athlete’s right to publicity. In the past, the NCAA has used eligibility rules to impose restrictions on its student-athletes ability to profit from their NIL rights. Among the various justifications for these restrictions, perhaps the most significant is the motive to “preserve amateurism” by restricting college athletes’ abilities to monetize their services. Under NCAA Bylaw 12.5.2.2,[ii] a student athlete shall not be eligible for participation in intercollegiate athletics if the student-athlete either “accepts any remuneration for or permits” the use of their name or likeness in the promotion of a commercial product or service or “receives remuneration for endorsing a commercial product or service through the student-athletes’ use of such product or service.”

However, due to a combination of social pressures from college sports fans, former college athletes[iii] and state legislators, the NCAA is currently working to expand their NIL rules to allow athletes to monetize their NIL in ways that were previously not permitted.[iv] One of the biggest forces driving the expansion of these rights is California’s Senate Bill 206, more commonly known as the “Fair Pay to Play Act.”[v] This legislation will permit college athletes in NCAA-affiliated California schools to sign endorsement and licensing deals and profit off of their NIL, thus, making it illegal for these schools to prevent an athlete from being compensated based on their NIL. Though other states have enacted similar legislation, California’s efforts presumptively put the strongest pressure on the NCAA to adapt their laws, given the profits the NCAA derives from having member institutions in California, the state with the country’s largest population and highest gross domestic product. Thus, if schools such as USC, UCLA and Stanford were deemed ineligible for NCAA competition for allowing their athletes to engage in monetizing activities that violated NCAA rules, their absence could have a significant impact on the NCAA’s revenue. Senate Bill 206 was introduced in September 2019 and is scheduled to go into effect on January 1, 2023.[vi] By design, the bill’s time of effectuation was delayed, allowing the NCAA to adjust its bylaws regarding NIL rights.

As the NCAA prepares to expand athletes’ NIL freedoms, NCAA v. Alston, a pending case in the Supreme Court, appears primed to play a significant role in the NCAA’s latitude to maintain certain limits on athletes’ NIL rights despite the expansion. Alston comes to the Supreme Court from the Ninth Circuit, which has differed from other circuits by subjecting challenges to NCAA eligibility rules to antitrust scrutiny, while the Third,[vii] Fifth[viii] and Seventh[ix] Circuits have dismissed NCAA antitrust challenges at the motion to dismiss stage. In so ruling, these circuits have essentially granted the NCAA an antitrust exemption to any rule that facially serves the purpose of promoting amateurism without subjecting those provisions to a fact-intensive Rule of Reason analysis.

 Ncaa Proposed Changes

In April 2020, the NCAA introduced a proposal that allows student-athletes to profit off of their NIL.[x] Student-athletes would be granted the freedom to offer their own camps, clinics and private lessons, endorse products, be compensated for autograph sessions and solicit funds through crowdsourcing platforms. However, the NCAA’s proposed expansion did not come without its restrictions on the athletes’ potential endorsement opportunities, as it limited the type of products that student-athletes may endorse. For example, athletes would be prohibited from endorsing sports wagering, banned substances and other products that “conflict with NCAA legislation.” Similarly, individual schools would have the power to restrict athletes from endorsement opportunities that are deemed to clash with the “values” of the school. Additionally, student-athletes would be barred from endorsement opportunities that conflict with an individual school’s ongoing sponsorship agreements, meaning that athletes at schools sponsored by Nike would be unable to accept endorsement opportunities from other athletic apparel companies.  

For years, critics of the NCAA have claimed that NIL restrictions are a violation of the 1980 Sherman Antitrust Act (“the Sherman Act”),[xi] which prohibits entities from unreasonably restraining free trade or commerce. Critics argue that the NCAA restrictions place an artificial limit on the abilities of student-athletes to engage in product endorsement and other profitable activities that affect free trade in violation of Section One of the Sherman Act, and, thus, are unconstitutional. 

Though the NCAA was originally scheduled to vote on the updated NIL proposal in January 2021, that vote was tabled and has yet to be rescheduled after the NCAA received a warning letter from the Department of Justice, in which former Assistant Attorney General Makan Delharim recommended that the NCAA delay confirming the NIL proposal over concerns that the proposal may trigger potential antitrust issues.[xii]

the sherman act and the “rule of reason”

Section One of the Sherman Act prohibits agreements that unreasonably restrain free trade.[xiii] The Rule of Reason is applied to evaluate potential violations of the Sherman Act that fall outside the scope of per se violations.[xiv] Using this analysis, a court determines whether an entity has provided proper justification for implementing restrictions that have anti-competitive effects on the free marketplace.[xv] 

To raise a claim of antitrust violations, the plaintiff must show that the challenged restrictions have an anticompetitive impact on the relevant market.[xvi] If a court finds a legitimate anticompetitive impact, the burden shifts to the defendant to provide pro-competitive justifications for the challenged restrictions.[xvii] Common proffered justifications the NCAA has relied upon in past litigation include the preservation of “amateurism” and the promotion of competitive balance among schools.

If a justification is upheld, the court will use the Rule of Reason analysis to determine whether the restriction is reasonably necessary to achieve the procompetitive justifications raised by the defendant or whether there are less restrictive alternatives to the challenged restrictions that could accomplish those justifications.[xviii] In this situation, the burden to offer less restrictive alternatives or show a lack of reasonable necessity rests with the plaintiff.

To be viable under the Rule of Reason, an offered alternative must be “virtually as effective” in serving the pro-competitive purposes of the challenged rule without creating significant additional cost.[xix] The decision as to whether an alternative is “virtually as effective” is traditionally made on a case-by-case basis.

ncaa history of antitrust issues

NCAA v. Board of Regents

In NCAA v. Board of Regents of the University of Oklahoma,[xx] the Supreme Court found, under the Rule of Reason, that NCAA broadcasting restrictions on college football games restrained competition in the “live college football television market.”

While Board of Regents did not involve a dispute over eligibility rules and resulted in an adverse ruling to the NCAA, Justice Stevens’ dicta regarding the NCAA’s role in maintaining amateurism has been utilized by the NCAA in subsequent antitrust challenges to its eligibility rules, primarily in NCAA v. Alston.[xxi] Justice Stevens stated that the “NCAA plays a critical role in the maintenance of a revered tradition of amateurism in college sports. There can be no question but that it needs ample latitude to play that role, or that the preservation of the student-athlete in higher education adds richness and diversity to intercollegiate athletics and is entirely consistent with the goals of the Sherman Act.”[xxii]

O’Bannon v. NCAA

In O’Bannon v. NCAA,[xxiii] former UCLA basketball star Ed O’Bannon brought an antitrust challenge against the NCAA’s rules preventing student-athletes from receiving compensation, despite the use of athletes NIL’s in video games and live game telecasts.

Like in Board of Regents, the NCAA responded to the finding of anticompetitive effects of its eligibility rules by offering procompetitive justifications, most notably that restrictions on athlete compensation were essential to preserving amateurism in college sports and promoting competitive balance among NCAA schools.[xxiv] It relied heavily on Justice Stevens’ amateurism dicta in Board of Regents, arguing that his words should be interpreted to mean that challenges to NCAA amateurism rules must fail as a matter of law.[xxv]

While the Northern District of California and the Ninth Circuit disagreed with that interpretation of Stevens’ dicta, the courts did agree that the preservation of amateurism serves as a legitimate procompetitive impact, though the Ninth Circuit accepted the factual determination of the district court that the restraints on compensation did not promote competitive balance.[xxvi] However, the Northern District agreed with the plaintiffs’ recommended alternative to NCAA eligibility rules.[xxvii] The Ninth Circuit ruled the district court did not err in finding NCAA rules more restrictive than necessary to preserve amateurism and finding a less restrictive alternative — ordering an injunction for athletes to receive scholarships up to the full cost of attendance, including nonrequired books, transportation and other attendance-related expenses for which athletes could not be compensated prior to the Ninth Circuit’s decision.[xxviii]

While the Ninth Circuit did not uphold the injunction of the district court requiring $5,000 payments to athletes for their NIL rights,[xxix] it did agree, under the Rule of Reason, that the NCAA’s eligibility rules capping scholarships below the full cost of attendance had an anticompetitive effect on the college education market by fixing the level of compensation that schools could offer as they competed to recruit athletes out of high school.[xxx] Without the NCAA’s eligibility rules, schools would compete to recruit athletes by offering recruits compensation that exceeds the limits imposed by the NCAA. This agreement effectively valued athletes’ NIL at zero because the fixed price did not allow for compensation outside of cost of attendance.[xxxi] 

Deppe v. NCAA  

While the Third and Fifth Circuits have both ruled in favor of the NCAA in antitrust disputes, the Seventh Circuit’s decision in Deppe v. NCAA[xxxii] best illustrates the reasoning that the NCAA hopes the Supreme Court will adopt in Alston.

Deppe involved an antitrust challenge to NCAA transfer rules requiring student-athletes who transfer to a Division I college to wait one full academic year before playing for their new school. However, rather than subject the challenged rule to a Rule of Reason analysis, the Seventh Circuit affirmed the dismissal of the complaint at the motion to dismiss stage, ruling that the transfer rule was presumptively procompetitive because it “clearly meant to preserve the amateur character of college athletics.”[xxxiii]

Here, the Seventh Circuit interpreted Stevens’ words from Board of Regents as a license for courts to find NCAA eligibility rules to be procompetitive and, in turn, disregard any need for analysis under the Rule of Reason.[xxxiv]

The Seventh Circuit went as far as to create a standard for determining the viability of eligibility challenges: “[A]n NCAA bylaw is presumptively procompetitive when it is ‘clearly meant to help maintain the ‘revered tradition of amateurism in college sports’ or the ‘preservation of the student-athlete in higher education.’”[xxxv] The Deppe court furthered its protection of the NCAA by noting that “most NCAA eligibility rules” should be presumed as procompetitive because “they define what it means to be a student-athlete” and carry on the tradition of amateurism.[xxxvi]

The Seventh Circuit essentially granted the NCAA the type of de facto exemption from antitrust challenges that the organization seeks in Alston. By interpreting Board of Regents to mean that bylaws are presumptively procompetitive when meant to maintain amateurism and opining that rules that define “what it means to be a student-athlete” are entitled to that presumption, Deppe provides the NCAA with the ultimate protection to change eligibility rules however it sees fit. Thus, should the Supreme Court adopt the Seventh Circuit’s reasoning in Alston, the NCAA would likely have near total freedom to place restrictions on NIL expansion, as new eligibility rules, regardless of the restrictions they contain, would only update the NCAA’s definition of what it means to be a “student-athlete” and, thus, be presumptively procompetitive.

turning point in athletes’ rights: ncaa v. Alston

The coincidence of the NCAA’s efforts to allow third-party compensation and the Supreme Court’s decision to hear a case challenging the NCAA’s ultimate power to protect amateurism creates a moment ripe to serve as the turning point in the future of student-athletes compensation rights.

NCAA v. Alston is a case concerning the applicability of federal antitrust law to the NCAA’s eligibility rules.[xxxvii] While the Ninth Circuit has disagreed with other circuits about the applicability of antitrust law to NCAA eligibility rules, a decision by the Supreme Court on the issue will create the potential for Alston to serve as the next landmark case on NCAA antitrust issues.

Like in O’Bannon, the plaintiffs in Alston have argued that the NCAA’s compensation limits, specifically the prohibitions on receiving third-party compensation for the use of their NIL, are an artificial restriction of student-athlete compensation.[xxxviii] Before the Northern District of California, the NCAA argued that the preservation of amateurism was a procompetitive effect of the restraints.[xxxix] Once again relying on Stevens’ dicta, the NCAA contended that Stevens’ words should be interpreted to grant the NCAA the most latitude.

Amateurism, the NCAA maintained, is defined by the fact that athletes are not paid to play.[xl] That fact, the NCAA argued, creates the distinction between professional and college sports and creates greater consumer demand for college athletics, thus creating a procompetitive impact.[xli]

While the District Court recognized the separation of college and professional sports as a legitimate procompetitive purpose, the Court found NCAA rules to be more restrictive than necessary to prevent “demand-reducing” unlimited compensation that might blur the line between the two levels of competition.[xlii]

On appeal, the Ninth Circuit affirmed the decision of the District Court, holding that NCAA eligibility rules regarding compensation of student-athletes were too restrictive and, thus, violated federal antitrust law.[xliii] While the Ninth Circuit acknowledged that preserving amateurism and maintaining a distinction between college and professional sports is procompetitive, the court disagreed with the NCAA’s notion of what constitutes “amateurism.”

Rejecting the NCAA’s definition, the Ninth Circuit opined that the distinction between professional and college sports arises not because students are not paid to play, but rather because student-athletes do not receive unlimited payments unrelated to education, as opposed to professional athletes receiving seven and eight-figure salaries for their talents.[xliv] Thus, using the Rule of Reason analysis, the Ninth Circuit agreed with the District Court that the challenged rules were more restrictive than necessary to maintain the distinction between college and professional sports and achieve the NCAA’s proffered procompetitive justifications.[xlv]

The Ninth Circuit decisions in O’Bannon and Alston signal a dangerous trend for the NCAA. In subjecting NCAA rules to a fact-intensive Rule of Reason analysis, these rulings potentially open the door to a series of antitrust lawsuits against the NCAA brought by athletes seeking to expand their NIL rights. Should the Supreme Court affirm the Ninth Circuit’s reasoning and agree that NCAA eligibility rules should be scrutinized under the Rule of Reason, the NCAA could be subjected to a never-ending cycle of antitrust lawsuits, resulting in the judicial micromanagement of eligibility rules. Thus, as the NCAA has already declared its intent to expand athletes’ NIL rights, the organization’s interest in petitioning the Supreme Court for certiorari seems to be more grounded in the interest of maintaining control over future iterations of eligibility rules rather than continuing to block athletes from monetizing their NIL.

In petitions for writ of certiorari to the Supreme Court, the NCAA both illustrated the conflict between circuits created by the Ninth Circuit’s decisions to analyze eligibility rules under the Rule of Reason and repeatedly referenced the words of Justice Stevens in Board of Regents. The NCAA claims that it should have “ample latitude” in the maintenance of the “revered tradition of amateurism.”[xlvi] Further, the NCAA argues that those words should be interpreted to mean that NCAA amateurism rules should be upheld without Rule of Reason analysis.[xlvii]

The importance of the Supreme Court’s decision in NCAA v. Alston on the future of NIL rights cannot be overstated. Although the NCAA has already begun the process of expanding NIL rights, the Supreme Court’s decision will largely determine how much freedom the NCAA has from potential antitrust challenges in setting limits on how athletes are able to profit from those rights. If the Supreme Court agrees with the NCAA, following the reasoning of the Third, Fifth and Seventh Circuits and granting a de-facto blanket antitrust exemption to any compensation restriction so long as the restriction can be shown to work to preserve amateurism, the NCAA would likely have the latitude to impose restrictions on NIL rights despite their decision to expand those freedoms for athletes.

While the NCAA’s response to the Department of Justice’s warning letter was to table the vote on the new NIL proposal, a favorable ruling in Alston would likely allow the NCAA to rebuff those warnings. However, should the Supreme Court affirm the reasoning of the Ninth Circuit, the NCAA would be incentivized to ensure that its updates to eligibility rules are not susceptible to further antitrust challenges.

Thus, while awaiting a ruling in Alston, it would be prudent to examine how the NIL expansion proposal might hold up under a Rule of Reason analysis should the Supreme Court determine that it is subject to such scrutiny.

rule of reason scrutiny of the current proposal

Anticompetitive Impacts 

As previously stated, the first step of antitrust scrutiny is for the plaintiff to show the challenged restrictions’ anticompetitive impacts. Among the restrictions that the NCAA seeks to place on athletes’ abilities to profit, despite their willingness to expand their current rules on NIL,  are limitations on the endorsement of commercial products that conflict with NCAA legislation. These types of products would likely include popular sports gambling websites, like FanDuel or DraftKings, as well as pharmaceutical products listed on the NCAA’s banned substance list, such as certain pre-workout and dietary supplements.

The proposal would also allow schools to prohibit an athlete from taking any endorsement opportunities that conflict with “existing institutional sponsorship arrangements”[xlviii] or other school values. This restriction has the potential to be the most debilitating of all the proposed limits. This restriction would not only substantially limit athletes’ ability to endorse multiple brands, but would also hinder those brands from competing for the athletes’ endorsements as they do for the endorsements of celebrities.

One of the anticompetitive impacts raised in O’Bannon might also be raised here, as a plaintiff could argue that even the updated NIL rules continue to fix the price of the exchange between schools and recruits by limiting the compensation schools can offer. However, athletes would likely have varied endorsement opportunities at different schools based on the “values” the schools seek to protect and schools’ pre-existing endorsement arrangements. Thus, the impact of price-fixing compensation between schools might no longer be valid unless the NCAA places a monetary cap on the amount of third-party compensation that an athlete would be able to receive regardless of the school.

It appears relatively straightforward, perhaps inarguable, that these restrictions would create an anticompetitive impact similar to the one enumerated in Alston. Restricting the types of products that athletes can endorse and extending power to schools to institute their own limitations artificially restricts student-athlete compensation. Without these limits, student-athletes would likely be able to negotiate greater remuneration and maximize their potential third-party compensation. Given the near certainty of at least one anticompetitive impact, the burden would then shift to the NCAA to show procompetitive justifications.

 Procompetitive Impacts and Less Restrictive Alternatives

While the decision in Alston will give considerable guidance on how much latitude the NCAA should be given in its effort to preserve amateurism, the NCAA’s preservation effort will almost certainly continue to be at issue even if the NCAA does not receive the antitrust exemption that it seeks. Despite the Ninth Circuit’s disagreement, with the NCAA, that Justice Stevens’ dicta in Board of Regents should be interpreted to give the NCAA full power to enact rules intended to maintain amateurism, there is little dispute that maintaining a distinction between collegiate and professional sports is a cognizable procompetitive impact as the distinction drives consumer demand for college sports. 

Just as the anticompetitive impact from O’Bannon could be argued, so could the justification of promoting a competitive balance among NCAA schools. Like the preservation of amateurism, this justification has been considered legitimate by courts in the past,[xlix] even under the Ninth Circuit’s heavy scrutiny, and could likely be used to justify updated eligibility rules just as it did in O’Bannon.

Common sense strongly lends itself to the conclusion that demand is driven by competitive balance. Whether it be college or professional sports, fans of teams are more likely to be supportive of an institution’s athletic programs when they believe that the school has a level playing field on which to compete. However, that ideal is rarely a reality. Large state schools and private institutions with massive athletics budgets will almost always have an advantage over smaller schools that lack the same resources. Still, it is certainly a legitimate purpose to ensure that NCAA rules do not promote even more competitive imbalance. The expansion of NIL rights has the potential to contribute to that competitive imbalance as recruits would consider the endorsement opportunities that might come from attending a certain school over another when deciding where to attend college.  

Compared to past iterations of NCAA eligibility rules restricting compensation to the cost of attendance or lower, it is assertible that rules that allow athletes to receive third-party compensation do not even facially seek to preserve amateurism. In Agnew v. NCAA,[l] a Seventh Circuit NCAA antitrust case, the court held that limitations on the number of scholarships schools could offer to athletes did not implicate the preservation of amateurism, given that awarding additional scholarships did not change the status of athletes as amateurs. Here, it is similarly unclear how limitations on endorsement opportunities would do any more to preserve an athlete’s amateur status than granting student-athletes freedom to maximize their third-party compensation. This concern not only raises questions over the existence of a procompetitive justification, but also the possibility of a less restrictive alternative under a Rule of Reason analysis.

Even if a court concluded that NIL limitations did, in fact, preserve amateurism, it is still arguable that an altered proposal with fewer limitations would do just as much to achieve that goal. Just as the O’Bannon court ruled that allowing student-athletes to be compensated for the full cost of attendance preserved amateurism as much as scholarships capped below the full cost, it follows that full freedom to seek third-party compensation is just as effective in maintaining amateurism as restricting those opportunities.

Attempting to analyze how eligibility rules affect amateurism is especially tricky when considering the malleable nature of the NCAA’s definition of amateurism, pointed out by the Ninth Circuit in O’Bannon and Alston. Over several decades, the compensation package offered to student-athletes has regularly changed; thus, the NCAA’s idea of what constitutes amateurism has changed with them. 

The NCAA currently allows student-athletes to receive compensation up to the cost of attendance. In O’Bannon, the NCAA rebuked the idea of student-athletes being paid for the use of their NILs. Yet, roughly six years later, the NCAA is now prepared to permit exactly that without relinquishing the amateur status of student-athletes. Whether rules are analyzed under a blanket amateurism exemption or under the Rule of Reason, the question remains: How can rules be evaluated for the preservation of amateurism when that concept is regularly altered?

conclusion 

As the NCAA seeks broad latitude to implement its eligibility rules while simultaneously proposing major reform of those rules, developments in and out of the courtroom in the next six months will have a massive impact in shaping the landscape of the future of college sports. Should the NCAA not be granted the de-facto antitrust exemption that it seeks, endless lawsuits will continue to be brought by current and former student-athletes, arguing for Rule of Reason scrutiny to incrementally increase the compensation college athletes can receive.

end notes

[i] See Ahiza Garcia, NCAA Surpasses $1Billion in Revenue for First Time, CNN Business (Mar. 7, 2018, 1:48PM), https://money.cnn.com/2018/03/07/news/companies/ncaa-revenue-billion/index.html

[ii] Nat’l Collegiate Athletic Ass’n, 2020-21 NCAA Division I Manual, art. 12.5.2.2, at 77(2020), http://www.ncaapublications.com/productdownloads/D121.pdf.

[iii] See Chris Bosh, It’s Madness that We Don’t Pay College Athletes, The Players Tribune (Mar. 29, 2021), https://www.theplayerstribune.com/posts/chris-bosh-ncaa-college-athletes

[iv] See Zac Al-Khateeb, New NCAA NIL Rules, Explained: What Recommended Updates Mean For Student-Athletes, and What Comes Next, Sporting News (Apr. 30, 2020), https://www.sportingnews.com/us/ncaa-football/news/ncaa-nil-rules-updates-explained-student-athletes/118otm673eogy1mmrl0q7f4ycv.

[v] Fair Pay to Play Act, Cal. Educ. Code §§ 67456-57 (West 2021).

[vi] See Jack Kelly, Newly Passed California Fair Pay to Play Act Will Allow Student Athletes to Receive Compensation, Forbes (Oct. 1, 2019, 12:36PM), https://www.forbes.com/sites/jackkelly/2019/10/01/in-a-revolutionary-change-newly-passed-california-fair-pay-to-play-act-will-allow-student-athletes-to-receive-compensation/?sh=5c14240757d0.

[vii] Smith v. NCAA, 139 F.3d 180, 186-87 (3d Cir. 1998).

[viii] McCormack v. NCAA, 845 F.2d 1338, 1343-45 (5th Cir. 1988).

[ix] See Deppe v. NCAA, 893 F.3d 498, 499-504 (7th Cir. 2018).

[x] See Pat Forde & Ross Dellenger, NCAA’s Name, Image, Likeness Legislation Proposal Revealed in Documents, Sports Illustrated (Oct. 12, 2020), https://www.si.com/college/2020/10/13/ncaa-proposal-athlete-compensation-name-image-likeness.

[xi] See Justin Sievert, NCAA Legislation Will Continue to Be Attacked Under Antitrust Law, Sporting News (Mar. 17, 2016), https://www.sportingnews.com/us/ncaa-football/news/ncaa-legislation-antitrust-lawsuit-law-sherman-antitrust-act-mark-emmert/1qhywyk6qhxxo16byd7g0xceq7.

[xii] See Dennis Dodd & Matt Norlander, NCAA Expected to Table Planned Vote on Name, Image, Likeness Rights Amid Supreme Court Case, Senate Changes, CBS (Jan. 9, 2021, 4:53PM), https://www.cbssports.com/college-football/news/ncaa-expected-to-table-planned-vote-on-name-image-likeness-rights-amid-supreme-court-case-senate-changes.

[xiii] 15 U.S.C § 1 (2018).

[xiv] Nat’l Soc’y of Prof’l Eng’rs v. United States, 435 U.S. 679, 691 (1978).

[xv] Michael A. Carrier, The Four-Step Rule of Reason, Antitrust, Spring 2019, at 50.

[xvi] Tanaka v. Univ. of S. Cal., 252 F.3d 1059, 1063 (9th Cir. 2001).

[xvii] Id.

[xviii] Id.

[xix] Cty. of Tuolumne v. Sonora Cmty. Hosp., 236 F.3d 1148, 1159 (9th Cir. 2001).

[xx] NCAA v. Bd. of Regents of Univ. of Okla., 468 U.S. 85 (1984).

[xxi] See Petition for Writ of Certiorari at 16-19, NCAA v. Alston, No. 20-512 (Oct. 15, 2020).

[xxii] Id. at 120.

[xxiii] O’Bannon v. NCAA, 802 F.3d 1049 (9th Cir. 2015).

[xxiv] Id. at 1073.

[xxv] See id. at 1061 (considering NCAA’s claim that under Board of Regents all NCAA amateurism rules are valid as a matter of law).

[xxvi] Id. at 1064.

[xxvii] 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).

[xxviii] O’Bannon, 802 F.3d at 1074.

[xxix] O’Bannon, 7 F. Supp. 3d at 1008.

[xxx] O’Bannon, 802 F.3d. at 1071.

[xxxi] Id.

[xxxii] Deppe v. NCAA, 893 F.3d 498 (7th Cir. 2018).

[xxxiii] Id. at 499.

[xxxiv] Id. at 501.

[xxxv] Id.

[xxxvi] Id. at 502.

[xxxvii] See Liz Mullen & Michael Smith, SCOTUS to Hear Watershed NCAA v. Alston Case March 31, Sports Bus. J. (Feb. 1, 2021), https://www.sportsbusinessdaily.com/Daily/Closing-Bell/2021/02/01/Alston.aspx.

[xxxviii] Alston v. NCAA (In re NCAA Grant-in-Aid Cap Antitrust Litig.), 958 F.3d 1239, 1244 (9th Cir. 2020).

[xxxix] In re NCAA Grant-in-Aid Cap Antitrust Litig., 375 F. Supp. 3d 1058 (N.D. Cal. 2019).

[xl] In re NCAA, 375 F. Supp. 3d at 1071.

[xli] Id.

[xlii] Id. at 1086.

[xliii] Alston, 958 F.3d at 1265.

[xliv] See id. at 1071-74.

[xlv] Alston, 958 F.3d at 1265.

[xlvi] Petition for Writ of Certiorari at 2-3, NCAA v. Alston, No. 20-512 (Oct. 15, 2020).

[xlvii] Id.

[xlviii] See Forde & Dellenger, supra note 8.

[xlix] O’Bannon v. NCAA, 7 F. Supp. 3d 955, 1027 (N.D. Cal. 2014), aff’d in part, vacated in part, 802 F.3d 1049 (9th Cir. 2015).

[l] Agnew v. NCAA, 683 F.3d 328 (7th Cir. 2012).

about the writer…

Sami grew up in Birmingham, Alabama, and attended the University of Alabama for his undergraduate degree, where he studied journalism. While completing his bachelor’s, Sami worked as a sports reporter for multiple publications, including a local paper, The Tuscaloosa News, and one of the nation’s most prominent media outlets, Bleacher Report. Sami’s interest in the sports and entertainment industries played a substantial role in his decision to move across the country to attend USC Gould School of Law. As a lifelong fan of both the Alabama Crimson Tide and Los Angeles Lakers, Sami’s heart is forever divided between his original and current homes.