No. 20-
`
`IN THE
`Supreme Court of the United States
`
`
`NATIONAL COLLEGIATE ATHLETIC ASSOCIATION,
`Petitioner,
`
`v.
`
`SHAWNE ALSTON, et al.,
`
`Respondents.
`
`
`ON PETITION FOR A WRIT OF CERTIORARI
`TO THE UNITED STATES COURT OF
`APPEALS FOR THE NINTH CIRCUIT
`
`PETITION FOR A WRIT OF CERTIORARI
`
`
`SETH P. WAXMAN
` Counsel of Record
`LEON B. GREENFIELD
`DANIEL S. VOLCHOK
`DAVID M. LEHN
`DEREK A. WOODMAN
`SPENCER L. TODD
`WILMER CUTLER PICKERING
` HALE AND DORR LLP
`1875 Pennsylvania Ave. N.W.
`Washington, D.C. 20006
`(202) 663-6000
`seth.waxman@wilmerhale.com
`
`
`JEFFREY A. MISHKIN
`KAREN HOFFMAN LENT
`SKADDEN, ARPS, SLATE,
` MEAGHER & FLOM LLP
`4 Times Square
`New York, N.Y. 10036
`
`BETH A. WILKINSON
`WILKINSON WALSH LLP
`2001 M St. N.W., 10th Floor
`Washington, D.C. 20036
`
`
`
`
`
`
`
`IN THE
`Supreme Court of the United States
`
`
`NATIONAL COLLEGIATE ATHLETIC ASSOCIATION,
`Petitioner,
`
`v.
`
`SHAWNE ALSTON, et al.,
`
`Respondents.
`
`
`ON PETITION FOR A WRIT OF CERTIORARI
`TO THE UNITED STATES COURT OF
`APPEALS FOR THE NINTH CIRCUIT
`
`PETITION FOR A WRIT OF CERTIORARI
`
`
`SETH P. WAXMAN
` Counsel of Record
`LEON B. GREENFIELD
`DANIEL S. VOLCHOK
`DAVID M. LEHN
`DEREK A. WOODMAN
`SPENCER L. TODD
`WILMER CUTLER PICKERING
` HALE AND DORR LLP
`1875 Pennsylvania Ave. N.W.
`Washington, D.C. 20006
`(202) 663-6000
`seth.waxman@wilmerhale.com
`
`
`JEFFREY A. MISHKIN
`KAREN HOFFMAN LENT
`SKADDEN, ARPS, SLATE,
` MEAGHER & FLOM LLP
`4 Times Square
`New York, N.Y. 10036
`
`BETH A. WILKINSON
`WILKINSON WALSH LLP
`2001 M St. N.W., 10th Floor
`Washington, D.C. 20036
`
`
`
`
`
`
`
`
`
`QUESTION PRESENTED
`
`Whether the Ninth Circuit erroneously held, in
`conflict with decisions of other circuits and general an-
`titrust principles, that the National Collegiate Athletic
`Association eligibility rules regarding compensation of
`student-athletes violate federal antitrust law.
`
`(i)
`
`
`
`
`
`PARTIES TO THE PROCEEDINGS
`Petitioner, defendant-appellant below, is the Na-
`tional Collegiate Athletic Association.
`Respondents, plaintiffs-appellees below, are Shawne
`Alston; Don Banks; Duane Bennett; John Bohannon;
`Barry Brunetti; India Chaney; Chris Davenport; Dax
`Dellenbach; Sharrif Floyd; Kendall Gregory-McGhee;
`Justine Hartman; Nigel Hayes; Ashley Holliday; Da-
`lenta Jameral Stephens; Alec James; Afure Jemerigbe;
`Martin Jenkins; Kenyata Johnson; Nicholas Kindler;
`Alex Lauricella; Johnathan Moore; Kevin Perry; An-
`fornee Stewart; Chris Stone; Kyle Theret; Michel’le
`Thomas; Kendall Timmons; and William Tyndall.
`Other defendants-appellants below were the Ameri-
`can Athletic Conference; the Atlantic Coast Confer-
`ence; The Big Ten Conference, Inc.; The Big 12 Confer-
`ence, Inc.; Conference USA; the Mid-American Confer-
`ence; the Mountain West Conference; the Pac-12 Con-
`ference; the Southeastern Conference; the Sun Belt
`Conference; and the Western Athletic Conference.
`
`CORPORATE DISCLOSURE STATEMENT
`The National Collegiate Athletic Association is an
`unincorporated, non-profit membership association
`composed of over 1,200 member schools and confer-
`ences. It has no corporate parent, and no publicly held
`corporation owns 10 percent or more of its stock.
`
`RELATED PROCEEDINGS
`United States District Court (N.D. Cal.):
`A. House et al. v. NCAA et al., No. 4:20-cv-3919.
`B. Jenkins et al. v. National Collegiate Athletic
`Association et al., No. 4:14-cv-2758 (dismissed).
`
`(ii)
`
`
`
`
`
`TABLE OF CONTENTS
`
`Page
`QUESTION PRESENTED ............................................... i
`PARTIES TO THE PROCEEDINGS ............................ ii
`CORPORATE DISCLOSURE STATEMENT ............. ii
`RELATED PROCEEDINGS........................................... ii
`TABLE OF AUTHORITIES ........................................... v
`OPINIONS BELOW ........................................................... 1
`JURISDICTION .................................................................. 2
`STATUTORY PROVISION INVOLVED ....................... 2
`INTRODUCTION ............................................................... 2
`STATEMENT ...................................................................... 6
`A. The NCAA And Amateurism In College
`Sports ....................................................................... 6
`1. The
`NCAA
`administers
`intercollegiate athletics as an
`integral
`component of higher
`education ......................................................... 6
`2. Board of Regents ............................................ 9
`3. O’Bannon ...................................................... 10
`B. Procedural History ............................................. 12
`1. District Court ............................................... 12
`2. Ninth Circuit ................................................ 14
`REASONS FOR GRANTING THE PETITION ........... 16
`I. THE NINTH
`CIRCUIT’S
`DECISION
`IMPLICATES AN ESTABLISHED AND
`ACKNOWLEDGED CIRCUIT CONFLICT ..................... 16
`
`(iii)
`
`
`
`iv
`
`TABLE OF CONTENTS—Continued
`
`Page
`
`A. Consistent With This Court’s Broader
`Joint-Venture Law, Board Of Regents
`Recognized That NCAA Amateurism
`Rules
`Are
`Presumptively
`Procompetitive And That The NCAA
`Needs Leeway To Adopt Such Rules .............. 17
`B. Most Circuits Have Understood Board
`Of Regents And American Needle To
`Require That NCAA Amateurism
`Rules Be Upheld Without Fact-
`Intensive Rule-Of-Reason Analysis ................. 19
`C. The Ninth Circuit Takes A Starkly
`Different Approach ............................................. 22
`II. THE DECISION BELOW IS WRONG ............................ 24
`III. THE QUESTION PRESENTED IS RECURRING
`AND IMPORTANT ......................................................... 29
`CONCLUSION .................................................................. 33
`APPENDIX A: Opinion of the United States
`Court of Appeals for the Ninth Circuit,
`dated May 18, 2020 ..................................................... 1a
`APPENDIX B: Findings of Fact and Conclu-
`sions of Law of the United States District
`Court for the Northern District of Califor-
`nia, March 8, 2019 ..................................................... 65a
`APPENDIX C: Permanent Junction of the
`United States District Court
`for the
`Northern District of California, March 8,
`2019 ........................................................................... 167a
`
`
`
`
`
`v
`
`TABLE OF AUTHORITIES
`
`CASES
`
`Page(s)
`
`Agnew v. NCAA, 683 F.3d 328 (7th Cir.
`2012) ........................................................... 11, 19, 20, 23
`American Motor Inns, Inc. v. Holiday Inns,
`Inc., 521 F.2d 1230 (3d Cir. 1975) ................... 5, 25, 27
`American Needle, Inc. v. NFL, 560 U.S. 183
`(2010) ...................................................... 3, 10, 17, 18, 20
`Arizona v. Maricopa County Medical Society,
`457 U.S. 332 (1982) ..................................................... 32
`Broadcast Music, Inc. v. CBS, Inc., 441 U.S. 1
`(1979) ........................................................................ 3, 18
`Chicago Professional Sports Ltd. Partnership
`v. NBA, 95 F.3d 593 (7th Cir. 1996) ..................... 5, 27
`Deppe v. NCAA, 893 F.3d 498 (7th Cir. 2018) ..... 3, 19, 20
`Law v. NCAA, 134 F.3d 1010 (10th Cir. 1998) ........ 21, 22
`McCormack v. NCAA, 845 F.2d 1338 (5th Cir.
`1988) ................................................................... 3, 20, 21
`NCAA v. Board of Regents of University of
`Oklahoma, 468 U.S. 85 (1984) .......................... passim
`O’Bannon v. NCAA, 802 F.3d 1049 (9th Cir.
`2015) ........................................... 4, 11, 12, 14, 22, 24, 30
`Ohio v. American Express Co., 138 S. Ct. 2274
`(2018) .............................................................................. 9
`Race Tires America, Inc. v. Hoosier Racing
`Tire Corp., 614 F.3d 57 (3d Cir. 2010)............ 4, 18, 19
`Seminole Tribe v. Florida, 517 U.S. 44 (1996) .............. 25
`
`
`
`
`
`vi
`
`TABLE OF AUTHORITIES—Continued
`
`Page(s)
`Smith v. NCAA, 139 F.3d 180 (3d Cir. 1998) ............. 3, 21
`Verizon Communications Inc. v. Law Offices
`of Curtis V. Trinko, LLP, 540 U.S. 398
`(2004) ........................................................................ 5, 27
`
`DOCKETED CASES
`House v. NCAA, No. 4:20-cv-3919 (N.D. Cal.) .............. 30
`
`STATUTES
`15 U.S.C. §1 ...................................................................... 2, 9
`20 U.S.C.
`§1087kk .......................................................................... 8
`§1087ll ............................................................................ 8
`28 U.S.C. §1254 .................................................................... 2
`
`OTHER AUTHORITIES
`American Bar Association, Antitrust Section–
`Monograph No. 23, The Rule of Reason (1999) ...... 25
`Areeda, Phillip E. & Herbert J. Hovenkamp,
`Antitrust Law (3d ed. 2015) ...................................... 25
`Diamond, Jared, How MLB’s Luxury Tax Has
`Put a Deep Freeze on Spending, Wall St. J.
`(Jan. 11, 2019), https://tinyurl.com/y5g3wtgk ........ 27
`Gallup, In Depth: Topics A to Z Sports,
`https://news.gallup.com/poll/4735/sports.aspx ......... 7
`
`
`
`
`
`vii
`
`TABLE OF AUTHORITIES—Continued
`
`Page(s)
`
`Minor League Basketball Teams Offer Some
`the Chance to Play, to Keep Their NBA
`Dreams Alive, Fox News (July 3, 2013),
`https://tinyurl.com/y48nlz69 ..................................... 27
`NCAA Board of Governors Federal and State
`Legislation Working Group, Final Report and
`Recommendations (Apr. 17, 2020),
`https://tinyurl.com/yxq8rtd9..................................... 32
`United States Department of Education, Federal
`Student Aid Office, Federal Pell Grants
`Are Usually Awarded Only to Under
`graduate Students, https://studentaid.gov/
`understand-aid/types/grants/pell/ .............................. 8
`What Is The NCAA?, https://tinyurl.com/y4kpswnl ...... 7
`
`
`
`
`
`
`
`IN THE
`Supreme Court of the United States
`
`No. 20-
`
`
`NATIONAL COLLEGIATE ATHLETIC ASSOCIATION,
`Petitioner,
`
`v.
`
`SHAWNE ALSTON, et al.,
`
`Respondents.
`
`
`ON PETITION FOR A WRIT OF CERTIORARI
`TO THE UNITED STATES COURT OF
`APPEALS FOR THE NINTH CIRCUIT
`
`PETITION FOR A WRIT OF CERTIORARI
`
`
`The National Collegiate Athletic Association
`(“NCAA”) respectfully petitions for a writ of certiorari
`to review the judgment in this case of the United
`States Court of Appeals for the Ninth Circuit.
`
`OPINIONS BELOW
`The Ninth Circuit’s opinion (App. 1a-63a) is pub-
`lished at 958 F.3d 1239. The district court’s opinion
`(App. 65a-165a) is published at 375 F. Supp. 3d 1058; its
`permanent injunction (App. 167a-170a) is unpublished.
`
`
`
`
`
`2
`
`JURISDICTION
`The Ninth Circuit entered judgment on May 18,
`2020. This Court has jurisdiction under 28 U.S.C.
`§1254(1).
`
`STATUTORY PROVISION INVOLVED
`Section 1 of the Sherman Act, 15 U.S.C. §1, pro-
`vides in relevant part: “Every contract, combination in
`the form of trust or otherwise, or conspiracy, in re-
`straint of trade or commerce among the several States,
`or with foreign nations, is declared to be illegal.”
`
`INTRODUCTION
`At issue in this case is whether the nationwide
`rules that define who is eligible to participate in NCAA
`sports will henceforth be set by the NCAA or by one
`federal judge in California, assisted by the imagination
`of plaintiffs’ lawyers and subject only to deferential
`Ninth Circuit review. More broadly, the question here
`is whether sports organizations and other joint ven-
`tures will have the ability to define the character of
`their own products.
`Fundamental principles of antitrust law, as reflect-
`ed in this Court’s precedent, make clear that the
`NCAA, not a single jurist, should set the rules for col-
`lege sports. As this Court recognized in NCAA v.
`Board of Regents of University of Oklahoma, 468 U.S.
`85 (1984), the essential “character and quality” of
`NCAA sports—what “differentiates” NCAA sports
`from professional ones—has long been that participants
`in NCAA sports are both amateurs and students at the
`schools for which they play, i.e., that they “must not be
`paid[ and] must … attend class,” id. at 102. Board of
`Regents further instructed that “the preservation of
`
`
`
`
`
`3
`
`the student-athlete in higher education … is entirely
`consistent with the goals of the Sherman Act.” Id. at
`120. Accordingly, this Court explained, rules that limit
`“eligibility” to enrolled students who are not paid to
`play “are justifiable means of fostering competition
`among amateur athletic teams and therefore procom-
`petitive” for purposes of antitrust challenges. Id. at
`117. And a sports association’s procompetitive rules,
`this Court later emphasized, can be sustained under an-
`titrust law’s rule of reason “‘in the twinkling of an eye.’”
`American Needle, Inc. v. NFL, 560 U.S. 183, 203 (2010)
`(quoting Board of Regents, 468 U.S. at 109 n.39).
`Following this Court’s teachings, the Third, Fifth,
`and Seventh Circuits have rejected antitrust challenges
`to NCAA amateurism rules—and did so at the motion-
`to-dismiss stage, examining the rules on their face ra-
`ther than requiring a trial or even discovery. See
`Deppe v. NCAA, 893 F.3d 498, 499-504 (7th Cir. 2018);
`Smith v. NCAA, 139 F.3d 180, 186-187 (3d Cir. 1998),
`vacated on other grounds, 525 U.S. 459, 464 n.2 (1999);
`McCormack v. NCAA, 845 F.2d 1338, 1343-1345 (5th
`Cir. 1988).
`These decisions, like Board of Regents itself, accord
`with how this Court and others treat both other organi-
`zations that administer sports competitions, and joint
`ventures more generally. This Court has explained, for
`example, that “[j]oint ventures and other cooperative
`arrangements are … not usually unlawful … where the
`agreement … is necessary to market the product at
`all.” Broadcast Music, Inc. v. CBS, Inc., 441 U.S. 1, 23
`(1979). And in upholding a racing organization’s rule on
`summary judgment, the Third Circuit observed that
`where “sports-related organizations” “possess good
`faith justifications,” they “should have the right to de-
`termine for themselves the set of rules that they be-
`
`
`
`
`
`4
`
`lieve best advance their respective sport (and therefore
`their own business interests), without undue and costly
`interference on the part of courts and juries.” Race
`Tires Am., Inc. v. Hoosier Racing Tire Corp., 614 F.3d
`57, 83 (3d Cir. 2010).
`The Ninth Circuit has taken a starkly different ap-
`proach, first in O’Bannon v. NCAA, 802 F.3d 1049 (9th
`Cir. 2015), and now here. In each case—after the same
`district judge required a bench trial and then invalidat-
`ed NCAA rules that restrict student-athlete compensa-
`tion—the Ninth Circuit brushed aside key parts of
`Board of Regents as dicta, declared other circuits’ ap-
`proach “unpersuasive,” and held that NCAA amateur-
`ism rules are subject to strict rule-of-reason scrutiny
`after trial. Id. at 1064; App. 12a, 37a.
`In this case, the Ninth Circuit, going far beyond
`O’Bannon, held that virtually all NCAA rules limiting
`so-called “education-related benefits” are invalid. App.
`34a-46a. That holding rested on the court’s assertion
`that what differentiates college and professional ath-
`letes is not, as Board of Regents explained, that ama-
`teur college athletes “must not be paid” to play, 468
`U.S. at 102. Rather, the Ninth Circuit opined, what dif-
`ferentiates college and professional athletes is that only
`professionals receive “unlimited payments unrelated to
`education,” App. 37a—a notion the lower courts invent-
`ed out of thin air. Applying that invented notion, the
`Ninth Circuit also held that many NCAA rules are not
`needed to preserve the procompetitive distinction be-
`tween college and professional athletes because stu-
`dent-athletes would not be professionals even if they
`were paid unlimited amounts of money to play, as long
`as the payments could somehow be regarded as “relat-
`ed to education.” Finally, the Ninth Circuit approved
`an injunction that specifies the “compensation and ben-
`
`
`
`
`
`5
`
`efits related to education … that the NCAA may not
`limit,” and requires the NCAA to seek judicial pre-
`approval to alter the list or to define the term “related
`to education.” App. 167a-168a.
`The consequences of the Ninth Circuit’s approach
`confirm the need for this Court’s review. The decision
`below deprives the NCAA of the leeway that sports-
`governing bodies and joint ventures ordinarily have
`under antitrust law, leeway that this Court and others
`have recognized the NCAA needs to administer inter-
`collegiate athletics. Instead, the decision below vests
`nationwide supervision of eligibility to participate in
`intercollegiate athletics in one district judge, with au-
`thority to be exercised through an endless string of an-
`titrust lawsuits challenging NCAA rules—even if those
`rules have been upheld in prior cases. Such judicial mi-
`cromanagement is improper: As this Court has ex-
`plained, antitrust courts are “ill-suited” to “act as cen-
`tral planners,” Verizon Communications Inc. v. Law
`Offices of Curtis V. Trinko, LLP, 540 U.S. 398, 408
`(2004), or to “second-guess[] business judgments,”
`American Motor Inns, Inc. v. Holiday Inns, Inc., 521
`F.2d 1230, 1249 (3d Cir. 1975); see also Chicago Profes-
`sional Sports Ltd. P’ship v. NBA, 95 F.3d 593, 597 (7th
`Cir. 1996) (“[T]he antitrust laws do not deputize district
`judges as one-man regulatory agencies.”).
`The rule changes that the Ninth Circuit’s decision
`requires, moreover, will fundamentally transform the
`century-old institution of NCAA sports, blurring the
`traditional line between college and professional ath-
`letes (one this Court, again, has long recognized). That,
`too, is not a proper role for the courts. Public debate
`about how best to regulate college sports for the bene-
`fit of student-athletes, academic institutions, and fans is
`entirely appropriate. And such debate, which has ex-
`
`
`
`
`
`6
`
`isted throughout most of the NCAA’s existence, con-
`tinues today—including in Congress, which is consider-
`ing (with petitioner’s active involvement) whether to
`adopt federal
`legislation regarding student-athlete
`compensation. But under the guise of applying the rule
`of reason, the Ninth Circuit has made itself a tool of one
`viewpoint in the debate: that student-athletes should
`have increasing and ultimately unbounded freedom to
`negotiate their compensation for playing college sports.
`Antitrust litigation is wholly unsuited to resolving such
`debates.
`Preventing these far-reaching harms (not only to
`the NCAA but also to joint ventures more generally),
`and resolving the circuit conflict noted above, warrants
`this Court’s review.
`
`STATEMENT
`A. The NCAA And Amateurism In College Sports
`1. The NCAA administers intercollegiate
`athletics as an integral component of
`higher education
`a. For over a century, student-athletes through-
`out the country have enjoyed the many benefits of par-
`ticipating in intercollegiate athletics as part of their ed-
`ucation, benefits such as opportunities for leadership,
`teamwork, camaraderie, time management, discipline,
`and coping with success and failure. C.A. ER155. And
`“[s]ince its inception in 1905, the NCAA has played an
`important role in the regulation of … collegiate sports.”
`Board of Regents, 468 U.S. at 88.
`Today, nearly half a million student-athletes partic-
`ipate in NCAA-administered athletics each year, play-
`ing two dozen sports at about 1,100 NCAA member
`
`
`
`
`
`7
`
`schools. What Is The NCAA?, https://tinyurl.com/
`y4kpswnl (all web pages cited herein visited October
`15, 2020); C.A. ER8. And millions of fellow students,
`alumni, faculty, and other fans watch NCAA competi-
`tions in person and on television. Indeed, college ath-
`letics have long been “more popular than [comparable]
`professional sports.” Board of Regents, 468 U.S. at 102;
`see also C.A. ER215-216; Gallup, In Depth: Topics A to
`Z Sports, https://news.gallup.com/poll/4735/sports.aspx.
`Although a few NCAA teams generate enough
`revenue to cover their expenses—most are subsidized
`by their schools, C.A. ER154, 155; C.A. ER263-264—all
`schools’ “primary mission” remains “educating [their]
`students,” C.A. ER153-154, with intercollegiate athlet-
`ics “an important part of the educational experience,”
`C.A. ER213.
`b. For many decades, a hallmark of NCAA sports
`has been amateurism, the principle that student-
`athletes are not professionals. E.g., Board of Regents,
`468 U.S. at 88. The NCAA has thus long had a body of
`eligibility rules designed to establish a “clear line of
`demarcation between intercollegiate athletics and pro-
`fessional sports.” C.A. ER274. The NCAA’s “tradition
`of amateurism,” this Court has observed, “adds rich-
`ness and diversity to intercollegiate athletics.” Board
`of Regents, 468 U.S. at 120.
`large number of sports,
`Consistent with the
`schools, and student-athletes involved, the NCAA’s eli-
`gibility rules address many topics. See C.A. ER272-
`273. As relevant here, the rules prohibit student-
`athletes from being paid for their play, while allowing
`schools to reimburse student-athletes for reasonable
`and necessary academic and athletic expenses. See
`C.A. ER284-287, 1422-1440. The rules also permit stu-
`
`
`
`
`
`8
`
`dent-athletes to receive limited awards to recognize ac-
`ademic or athletic achievement. See C.A. ER288-289,
`296-297.
`The principal measure of legitimate academic ex-
`penses is “cost of attendance,” or COA, a term en-
`shrined in federal law and used to determine the finan-
`cial assistance students may receive to attend school.
`20 U.S.C. §1087kk. COA includes tuition and fees (in-
`cluding required “equipment, materials, or supplies”),
`room and board, books, a computer, transportation, and
`“miscellaneous personal expenses.” Id. §1087ll. Each
`school independently determines “the appropriate and
`reasonable amounts” for its students. C.A. ER324; see
`also 20 U.S.C. §1087kk.
`NCAA rules permit student-athletes to receive fi-
`nancial aid up to COA, and also (consistent with finan-
`cial-aid rules for all students) let schools “adjust[]”
`COA “on an individual basis,” C.A. ER285. Financial
`aid may be provided through an athletic scholarship—
`called a “grant-in-aid”—other financial aid, or both.
`C.A. ER284, 286-287. Schools may also cover student-
`athletes’ additional educational expenses using two
`funds: the Student Assistance Fund and the Academic
`Enhancement Fund. C.A. ER268-269, 284-285, 294-295.
`And student-athletes who demonstrate exceptional fi-
`nancial need can receive Pell grants from the federal
`government. C.A. ER287; U.S. Department of Educa-
`tion, Federal Student Aid Office, Federal Pell Grants
`Are Usually Awarded Only to Undergraduate Students,
`https://studentaid.gov/understand-aid/types/grants/pell/.
`Finally, NCAA rules allow schools to provide lim-
`ited awards to recognize genuine achievement by indi-
`vidual athletes or teams. The value limits range from
`$175 for being a team’s most-improved or most-
`
`
`
`
`
`9
`
`valuable player to $1,500 for being a conference’s ath-
`lete (or scholar-athlete) of the year. C.A. ER288-289,
`296-297. Additionally, schools may annually give a Sen-
`ior Scholar Award (providing $10,000 for graduate
`school) to two graduating student-athletes.
` C.A.
`ER289. The award limits are designed to ensure that
`awards do not become vehicles for disguised pay-for-
`play. C.A. ER170-171.
`
`2. Board of Regents
`For decades, there was a judicial consensus that,
`for purposes of section 1 of the Sherman Act, NCAA
`eligibility rules designed to ensure that student-
`athletes are not paid to play their sport should be up-
`held against antitrust challenge without trial and de-
`tailed analysis. This consensus was founded on Board
`of Regents.
`In that case, this Court explained that because
`league sports are “an industry in which horizontal re-
`straints on competition are essential if the product is to
`be available at all,” NCAA rules should be evaluated
`for antitrust purposes under the rule of reason, rather
`than deemed illegal per se. 468 U.S. at 100-101. The
`rule of reason entails a “three-step, burden-shifting
`framework”: (1) if the plaintiff “prove[s] that the chal-
`lenged restraint has a substantial anticompetitive ef-
`fect that harms consumers in the relevant market,”
`then (2) the defendant must “show a procompetitive
`rationale for the restraint,” and if it does so, then (3)
`“the burden shifts back to the plaintiff to demonstrate
`that the procompetitive efficiencies could be reasonably
`achieved through less anticompetitive means.” Ohio v.
`American Express Co., 138 S. Ct. 2274, 2284 (2018).
`This Court has clarified, however, that ‘‘the Rule of
`Reason may not require a detailed analysis; it ‘can
`
`
`
`
`
`10
`
`sometimes be applied in the twinkling of an eye’’’ to up-
`hold a challenged restraint. American Needle, 560 U.S.
`at 203 (quoting Board of Regents, 468 U.S. at 109 n.39).
`Board of Regents also recognized important differ-
`ences, for antitrust purposes, between different types
`of NCAA rules. The Court explained that NCAA
`“standards of amateurism” and “academic eligibility,”
`468 U.S. at 88, “preserve the character and quality of”
`intercollegiate athletics, defining the “particular brand”
`of sports the NCAA offers, and thereby “widen con-
`sumer choice—not only the choices available to sports
`fans but also those available to athletes,” id. at 101-102.
`Consequently, rules
`implementing these eligibility
`standards, such as the rules that “athletes must not be
`paid” and “must be required to attend class,” “can be
`viewed as procompetitive.” Id. at 102. In fact, the
`Court concluded, it is “reasonable to assume that most
`… NCAA [rules] are justifiable means of fostering
`competition among amateur athletic teams, and there-
`fore procompetitive.” Id. at 117.
`In contrast, Board of Regents held, the NCAA tel-
`evision-licensing plan challenged there did not “fit into
`the same mold as do rules defining … the eligibility of
`participants,” because it was not based “on a desire to
`maintain the integrity of college football as a distinct
`and attractive product.” 468 U.S. at 116-117. The
`Court therefore conducted a detailed rule-of-reason
`analysis, concluding that the plan was unlawful. Id. at
`104-117.
`
`3. O’Bannon
`For three decades, courts of appeals applying
`Board of Regents uniformly held that NCAA eligibility
`rules requiring student-athletes to be amateurs are val-
`
`
`
`
`
`11
`
`id under antitrust law. See supra p.3 (citing cases). In-
`deed, these courts held that rules “defin[ing] what it
`means to be an amateur” should be sustained “at the
`motion-to-dismiss stage,” that is, without detailed rule-
`of-reason analysis. Agnew v. NCAA, 683 F.3d 328, 341,
`343 (7th Cir. 2012); see infra pp.19-21.
`In 2015, however, the Ninth Circuit disrupted this
`judicial consensus. In O’Bannon, former NCAA foot-
`ball and men’s basketball players claimed that the
`NCAA rules restricting compensation for student-
`athletes violated antitrust law by precluding student-
`athletes from being paid for the use of their names, im-
`ages, or likenesses. After a bench trial and detailed
`rule-of-reason analysis, the district court declared the
`rules unlawful. This was “the first [decision] by any
`federal court to hold that any aspect of the NCAA’s
`amateurism rules violate[s] the antitrust laws, let alone
`to mandate … that the NCAA change its practices.”
`O’Bannon, 802 F.3d at 1053.
`On appeal, the Ninth Circuit concluded—contrary
`the Board-of-Regents-based
`consensus noted
`to
`above—that all NCAA rules, even those designed to
`promote amateurism, are subject to trial and detailed
`rule-of-reason analysis. O’Bannon, 802 F.3d at 1063-
`1064. The court then affirmed the district court’s hold-
`ing that a below-COA cap on athletic scholarships (a
`cap the NCAA had changed before the appeal began)
`was “patently and inexplicably stricter than is neces-
`sary to accomplish all of its procompetitive objectives”
`and therefore invalid. Id. at 1075. But the Ninth Cir-
`cuit also held the district court “clearly erred” in re-
`quiring the NCAA to allow schools to give student-
`athletes deferred compensation of up to $5,000 per year
`above COA. Id. at 1074, 1076. The court explained that
`“not paying student-athletes is precisely what makes
`
`
`
`
`
`12
`
`them amateurs,” and that it was thus “self-evident …
`that paying students … will vitiate their amateur sta-
`tus.” Id. at 1076, 1077. Given that, the court held, anti-
`trust law “requires that the NCAA permit its schools
`to provide up to the cost of attendance to their student-
`athletes,” but “does not require more.” Id. at 1079.1
`
`B. Procedural History
`1. District Court
`While O’Bannon was pending, several classes of
`Division I football and basketball players—classes that
`largely overlap with the O’Bannon class—filed anti-
`trust actions against petitioner, seeking to “dismantle
`the NCAA’s entire compensation framework.” App.
`14a. The cases were assigned to the district judge pre-
`siding over O’Bannon and (with one exception) consoli-
`dated.
` Following the Ninth Circuit’s decision in
`O’Bannon, the district court ruled that that decision
`was preclusive here as to step 1 of the rule of reason
`(which favored respondents) but not step 2 or 3 (which
`would have favored petitioner), and set the case for a
`bench trial on those latter steps. App. 15a-16a. After
`trial, the court concluded that the challenged eligibility
`rules violated antitrust law.
`At step 2 of its rule-of-reason analysis, the court
`acknowledged that “maintaining a distinction between
`college sports and professional sports” is procompeti-
`tive. C.A. ER49. But it rejected petitioner’s (and
`Board of Regents’) conception of amateurism—that ath-
`
`
`1 Chief Judge Thomas (who authored the decision below) con-
`curred in part and dissented in part in O’Bannon, stating that he
`would have upheld the district court’s judgment in its entirety.
`See 802 F.3d at 1079.
`
`
`
`
`
`13
`
`letes not be paid to play—in favor of one the court in-
`vented, namely, that “the distinction between college
`and professional sports arises because student-athletes
`do not receive unlimited payments unrelated to educa-
`tion, akin to salaries seen in professional sports
`leagues.” C.A. ER50. Having adopted this conception,
`the court concluded that the challenged rules were
`“more restrictive than necessary to” maintain the dis-
`tinction between college and professional sports. C.A.
`ER51.
`The district court then found, at rule-of-reason step
`3, that there is a less-restrictive alternative—one the
`court created to track its new conception of amateur-
`ism. Under this alternative, the NCAA could continue
`to limit benefits unrelated to education but would be
`“prohibit[ed] … from limiting education-related bene-
`fits,” except that the NCAA “could limit … academic or
`graduation awards or incentives, provided in cash or
`cash-equivalent,” at the “current or future cap[] on ath-
`letics participation awards.” C.A. ER7. (The court cal-
`culated the current cap as $5,600, C.A. ER85, while re-
`spondents maintain it is $15,000 or more, C.A. ER1444-
`1445.)
`The district court then entered a permanent in-
`junction tracking its alternative scheme:
`The compensation and benefits related to edu-
`cation … that the NCAA may not … limit …
`are the following: computers, science equip-
`ment, musical instruments and other tangible
`items not included in the cost of attendance cal-
`culation but nonetheless related to the pursuit
`of academic studies; post-eligibility scholar-
`ships to complete undergraduate or graduate
`degrees at any school; scholarships to attend
`
`
`
`
`
`14
`
`vocational school; tutoring; expenses related to
`studying abroad …; and paid post-eligibility in-
`ternships.… Notwithstanding the foregoing
`…, the NCAA may agree … to fix or limit aca-
`demic or graduation awards or incentives that
`may be made available from conferences or
`schools[,] provided that the limit [is] never less
`than the athletics participation awards limit.
`App. 167a-169a. The injunction further states that this
`list “may be amended” only “on motion of any party,”
`App. 168a—in other words, only with the district
`court’s pre-approval. And the injunction permits the
`NCAA to “adopt … a definition of … ‘related to educa-
`tion’” but requires the NCAA to ask the court to “in-
`corporate that definition” into the injunction. Id.
`
`2. Ninth Circuit
`The court of appeals affirmed. It first held that
`although NCAA rules permit athletic scholarships up
`to COA, respondents’ claim was not foreclosed by
`O’Bannon’s conclusion that antitrust law “does not re-
`quire more” than that, 802 F.3d at 1079. The panel rea-
`soned that (1) rule-of-reason analysis is case-specific,
`and (2) some of the evidence here arose after the
`O’Bannon record closed. App. 26a-32a. The panel also
`reaffirmed O’Bannon’s rejection of petitioner’s conten-
`tion (and other circuits’ holding) that NCAA rules re-
`stricting student-athlete compensation “are ‘valid as a
`matter of law’ under” Board of Regents, instead sub-
`jecting them again to detailed rule-of-reason analysis.
`App. 12a-13a, 34a-45a.
`In applying that analysis, the Ninth Circuit did not
`deny that “maintaining a distinction between college and
`professional sports” is procompetitive, App. 34a-35a, or
`
`
`
`
`
`15
`
`that petitioner’s (
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