This Ivy League lawsuit could actually become a pretty big deal
The antitrust hits just keep coming
Matt Brown
March 10, 2023
Good morning, and thanks for spending part of your day with Extra Points.
You’re probably aware that the NCAA, and college sports as we know it, faces a number of potential existential legal threats in the immediate future. The National Labor Relations Board could very well rule that some college athletes are employees in the very near future, as could Johnson v NCAA. Next year, House v NCAA could also blow up the current financial model for college sports. There are probably other cases working their way through the system as well.
But earlier this week, another case dropped that isn’t directly about the NCAA…but could still be very, very significant.
Two athletes, a former Brown men’s basketball player, and a current Brown women’s basketball player, have filed a federal antitrust suit against the Ivy League, seeking to challenge the league’s ban on offering formal athletic scholarships. Even though the Ivy League may give generous financial aid packages, they do not offer any athletic scholarships, unlike the vast majority of D-I athletic programs.
I’ve already read some misconceptions about this, so let me do my best to clear this up. The legal question at the heart of the matter here isn’t about whether it is “legal” or not for Ivy League schools, or any college program, to not offer athletic scholarships. There is no legal obligation to offer basketball scholarships.
The question is whether Ivy League schools have unlawfully conspired to limit potential compensation by deciding as a group to not offer athletic scholarships. This is an antitrust case.
And because it’s an antitrust case, well, don’t expect a resolution tomorrow. Via Sportico’s excellent legal analyst Michael McCann:
Whether the case is certified as a class action and advances in litigation likely won’t be determined for several years. Antitrust lawsuits tend to move slowly through the courts.
From reading as much about this case as I can, and from talking to a few lawyers, my understanding is that a core question, in this case, will center around whether Ivy League athletic departments represent a large enough market. An elite athlete with a 33 ACT score could still potentially earn an athletics scholarship at a place like Duke, Stanford, Notre Dame or Rice (to say nothing of elite educational options at public schools like UCLA or Michigan). Is the ‘Ivy League Experience’ a unique enough subset to qualify for a market that should be protected by antitrust law?
This isn’t the first time Ivy, and similar schools, have attracted legal interest for price fixing. Many of these schools (along with other elite private schools) were sued in 2022 over allegedly engaging in price-fixing in financial aid awards. If you’re interested in a history of price fixing within the Ivy League, this is a great explanation that is written in a way that non-lawyers can easily understand.
Obviously, if the plaintiffs are able to get a class action lawsuit certified and secure a legal victory, how the Ivy League institutions conduct business will need to dramatically change. Each institution could certainly afford to offer athletic scholarships, but could such a change be the final straw that encourages Ivy Leagues to compete at the D-III level instead? It’s not like Princeton needs the branding benefits of D-I to recruit students or anything.
It’s a complicated question. I found this thread from Bob Boland, a law professor, longtime college sports industry fixture and former Ivy athlete, to be instructive in explaining not just the legal questions at stake here, but the philosophical ones.
I know I am going to be asked about this because I am a former @IvyLeague athlete, I teach sports law @SetonHallLaw & I am an active for the reform of college athletics as a lawyer & commentator.
Indulge a 🧵 I'm mixed on its viability & purpose. 1/15
https://t.co/AEzNRLNyBk
— Robert Boland (@RobertBolandESQ)
Mar 9, 2023
Even if you don’t care about Ivy League athletics, this could still be an important case to follow. If a policy that Ivy schools made, as a conference, is found to be an unfair restriction, I could see a world where other conference, or even NCAA policies, need to be re-examined. Could an 85-person scholarship limit also be found as an unfair restriction? What about conference-wide academic benchmarks?
If I had to guess, I think the legal fallout from Johnson and/or the NLRB will make this resolution moot before it completes its journey through the legal process. If outright professionalization happens, Ivy presidents will have bigger questions than “should we continue to pretend amateurism is a thing by not giving out athletic scholarships “, and they’ll try to secure some sort of settlement.
But I am but a humble newslettersman, not an antitrust attorney.
Not everything is antitrust in college athletics. But legally? It sure seems that way.
Here’s what else we’ve written this week:
Democratic and Republican politicians, along with numerous reporters and other commentators, are openly wondering why Iowa isn’t cutting ties with AD Gary Barta after the school just settled yet another discrimination lawsuit. Why is Iowa protecting this guy?
I talked to several individuals involved in graduate student unions to learn how a world where people can be students and employees actually works…and what athletes could learn from that arrangement.
I filed a gazillion FOIAs to read dozens of athletic director contracts. Here’s what I learned about their contract incentives, perks, buyouts and more
You can get every single Extra Points by upgrading to a full subscription.
One last quick housekeeping note. I am flying out of the country for a week-ish starting next Tuesday. I have a few freelance stories I’m going to run while I’m out, but I do have room for a few more. An ideal Extra Points freelance story will be in the 900-1600 word range, and will either add original reporting or original voice/perspective to an off-the-field issue in college athletics. I can pay a minimum of $300 + revenue sharing for an accepted newsletter. Happy to talk more via email!
If you send me anything after the 14th, there’s no guarantee I’m reading it until I get back to America. So if anybody wants to leak me major EA Sports College Football or conference realignment news, please do it before then :)
Thanks for reading, everybody. I’ll catch up with you next week.
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