Lawsuit against the Ivy League

BaseballJones

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This hit the news a couple of weeks ago but I just heard of it today and didn't see anything posted about it.

https://www.espn.com/college-sports/story/_/id/35812605/athletes-sue-ivy-league-no-scholarship-policy

"A pair of basketball players from Brown allege in a federal lawsuit that the Ivy League's policy of not offering athletic scholarships amounts to a price-fixing agreement that denies athletes proper financial aid and payment for their services.

The lawsuit was filed Tuesday in U.S. District Court in Connecticut by attorneys representing Grace Kirk, a member of Brown's women's team, and Tamenang Choh, who played for the men's team from 2017 through 2022. They are seeking class-action status to represent all current and former athletes at the eight Ivy League schools dating back to those recruited since March 2019.

The suit argues Ivy League schools illegally conspired to limit financial aid and not compensate athletes for their services.

"In either case, regardless of whether considered as a restraint on the price of education, the value of financial aid, the price of athletic services, or the level of compensation to Ivy League athletes, the Ivy League Agreement is per se illegal," the lawsuit states.

Ivy League executive director Robin Harris defended the policy in a statement responding to the legal action, noting there are a wide variety of options when it comes to opportunities available to college-level athletes.

"The Ivy League athletics model is built upon the foundational principle that student-athletes should be representative of the wider student body, including the opportunity to receive need-based financial aid," she said. "In turn, choosing and embracing that principle then provides each Ivy League student-athlete a journey that balances a world-class academic experience with the opportunity to compete in Division I athletics and ultimately paves a path for lifelong success."

But attorneys for the Brown athletes point out that other elite academic schools, such as Stanford and Duke, do offer athletic scholarships."

- - -

It goes on. But that's the gist.

What do you all think about this? I'm not a lawyer, and don't really know what legal merit this has. On the surface, the argument that, hey, because Stanford and Duke give scholarships, you need to as well, doesn't make sense to me. But I guess there must be some legitimacy to this lawsuit, I'd imagine.
 

DJnVa

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What do you all think about this? I'm not a lawyer, and don't really know what legal merit this has. On the surface, the argument that, hey, because Stanford and Duke give scholarships, you need to as well, doesn't make sense to me. But I guess there must be some legitimacy to this lawsuit, I'd imagine.
There may be some legal reasons I'm not well-versed on, but saying every college has to offer the same thing as every other one strikes me as odd. What if their preferred school didn't offer the major they wanted?
 

IdiotKicker

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I dislike the NCAA as much as anyone and have pushed to allow for athletes to be able to receive fair compensation based on their talents. Having said that, if an individual should be free to earn compensation based on the merits of their talents, then an institution should be free to not offer scholarships if they choose not to as well. Especially given that the Ivy League does allow for NIL compensation currently, I don't see any reason why they should be required to offer scholarships to any particular individuals just because other schools happen to do so. If you want to receive those scholarships, be good enough to play basketball at Duke instead of basketball at Cornell. I'm sure your NIL deal will look better as well. My issue with athlete's compensation has long been the inability to earn based on your talents, and if your talents dictate that you can only play at a school that offers merit-based or need-based financial aid, then you are in no way entitled to have an athletic scholarship just because a school with a stronger athletics program happens to give them out.
 

joe dokes

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There may be some legal reasons I'm not well-versed on, but saying every college has to offer the same thing as every other one strikes me as odd. What if their preferred school didn't offer the major they wanted?
I think the NCAA is a corrupt outfit. I think the Ivy League has an outsized sense of its importance. And I think this suit is nonsense.
 

DennyDoyle'sBoil

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I know nothing about the case other than the ESPN article and I have not read the complaint.

I assume the theory is that the 8 schools have conspired with each other to all agree not to give scholarships and that this keeps each one individually from making a stand-alone competitive decision.

A basic concept of anti-trust law is that it's best for consumers when sellers compete. So if you have 5 convenience stores in your neighborhood, and they all want you to buy milk there, the idea is that each will decide how to price milk to get you to buy it. You force innovation and efficiency by encouraging each market to figure out how to run its business so that it can sell milk for ten cents less than the market down the street. If the five owners get on the phone and say, "hey, this sucks, let's agree not to fuck each other, let's all sell milk for $3.00 and we'll all make a dollar on each gallon," that's anti-competitive.

I assume what this lawsuit is saying is that this is what the Ivy schools are doing.

I don't think they are saying that a school can't make a decision not to give scholarships. They are saying that a school that does this has to take the consequences and deal with the economic fallout if others in its market decide to compete for the best student athletes by making a different decision. By conspiring to not give scholarships, the 8 schools are acting like the markets who have the call about the price of milk.

Again, I'm just making up what I assume the claim is, not saying that is what it actually is.
 

Cellar-Door

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I can see the argument. Basically the argument is that these schools are members of the NCAA, placed in Division I. All other Division I schools offer athletic scholarships, and the NCAA has indicated that this is compensation of sorts. Further, the Supreme Court ruled in NCAA vs. Alston that the NCAA could not limit educational benefits that schools could offer student athletes, as it was an anti-trust violation.

The case here is similar. This group of schools is acting in concert to limit (to $0) compensation to athletes who are performing at the Division I level, and producing revenues. If a school chose not to offer scholarships... they'd have a better case, but this is a blanket rule, that prohibits the schools from doing so.
 

Comfortably Lomb

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What do you all think about this? I'm not a lawyer, and don't really know what legal merit this has. On the surface, the argument that, hey, because Stanford and Duke give scholarships, you need to as well, doesn't make sense to me. But I guess there must be some legitimacy to this lawsuit, I'd imagine.
The argument seems to be more about the fact that the Ivy League schools all agreed to not offer scholarships and that without that agreement they might otherwise choose to offer scholarships.

I think "competitive" college sports are dumb and the whole system should be burned to the ground, so like, good luck to the plaintiffs.
 

BaseballJones

ivanvamp
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The argument seems to be more about the fact that the Ivy League schools all agreed to not offer scholarships and that without that agreement they might otherwise choose to offer scholarships.

I think "competitive" college sports are dumb and the whole system should be burned to the ground, so like, good luck to the plaintiffs.
I think your assessment in the first sentence is probably more the crux of their argument. But even then....what's wrong with a group of schools valuing certain things, and saying, we'd like to be in a league together where we all value these things and in order to stay relatively competitive (and not having to go up against the Michigans and Alabamas of the world), we all agree to adopt this model? Why would that be a problem legally?

I mean, all of Division 3 doesn't offer athletic scholarships. Why shouldn't they be made to as well, if Brown University is going to be made to?
 

DennyDoyle'sBoil

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I think your assessment in the first sentence is probably more the crux of their argument. But even then....what's wrong with a group of schools valuing certain things, and saying, we'd like to be in a league together where we all value these things and in order to stay relatively competitive (and not having to go up against the Michigans and Alabamas of the world), we all agree to adopt this model? Why would that be a problem legally?

I mean, all of Division 3 doesn't offer athletic scholarships. Why shouldn't they be made to as well, if Brown University is going to be made to?
Anti-trust law is very complicated. It is one of the most complex areas of the law.

In layman's terms, there are some kind of acts and agreements that are so anti-competitive that your motives don't matter (or are assumed to be economically driven or anti-competitive). There are other kind of claims where your intent might be relevant. In those cases, you go through the judicial/adversarial process and someone who finds facts (a jury or a judge) makes a decision what your intent truly was. I assume the plaintiffs would respond to this argument with, "horseshit, your 'values' in 2023 are all predominantly economic."

And that's when you get lawyers charging a lot of money to look through emails to try to prove the answer one way or the other.
 

Cellar-Door

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I think your assessment in the first sentence is probably more the crux of their argument. But even then....what's wrong with a group of schools valuing certain things, and saying, we'd like to be in a league together where we all value these things and in order to stay relatively competitive (and not having to go up against the Michigans and Alabamas of the world), we all agree to adopt this model? Why would that be a problem legally?

I mean, all of Division 3 doesn't offer athletic scholarships. Why shouldn't they be made to as well, if Brown University is going to be made to?
One key difference would be that Division 3 doesn't get a multi-million dollar payout every year for athletics.


Edit- oooh found something interesting in the Yale student paper. The Ivy league had a specific exemption from the Sherman Anti-trust act written into a 1994 education bill. It was renewed every time it was going to expire...... until October of 2022 when it expired. So the Ivy's perhaps had their own internal concerns that they were in violation when they had the exemption added.
 

BaseballJones

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Interesting. So the issue may not be that any individual school isn't giving out athletic scholarships. It's that together, they've agreed as a league to not give out athletic scholarships. That's the anti-trust angle?

But what if you had a few schools here and there all on their own say, you know, we aren't going to give out athletic scholarships, and since there's a handful of us that think the same way, instead of us going up against Alabama and Michigan, let's form our own league with schools with like values and policies, that way our athletes are at least competing on a fairly level playing field.

And then every so often, those league members talk and say, we all still want to be in this league, right? Yep, we do. And it goes from there.

Seems (to me as a total layman in this) like a hard legal argument to make that these schools HAVE to give out athletic scholarships. I mean...athletic scholarships aren't a RIGHT, are they?

But maybe as soon as schools all agree to work together, it violates anti-trust statutes. Hmmm. Interesting.
 

snowmanny

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Is Stanford required to offer athletic scholarships as a result of being in the PAC 10?

And they may not offer athletic scholarships per se, but a lot of Ivy students wouldn’t be there if they couldn’t, for example, play hockey. And a lot of them get need-based scholarships they wouldn’t get elsewhere. You might go to Brown for free and play hockey and you might otherwise go to Merrimack but pay money and not be good enough to make the team. How do you parse that?
 

Comfortably Lomb

Koko the Monkey
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I think your assessment in the first sentence is probably more the crux of their argument. But even then....what's wrong with a group of schools valuing certain things, and saying, we'd like to be in a league together where we all value these things and in order to stay relatively competitive (and not having to go up against the Michigans and Alabamas of the world), we all agree to adopt this model? Why would that be a problem legally?

I mean, all of Division 3 doesn't offer athletic scholarships. Why shouldn't they be made to as well, if Brown University is going to be made to?
Aren't there benefits to being a D1 vs. D3 school? The competition, product, and prestige are generally better. The Ivies are getting that without providing scholarships.
 

BaseballJones

ivanvamp
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Aren't there benefits to being a D1 vs. D3 school? The competition, product, and prestige are generally better. The Ivies are getting that without providing scholarships.
They're getting some of those benefits for sure. They're also getting their asses kicked in most sports by non-league opponents by being D1. Especially in the revenue sports. So there's that too.
 

DennyDoyle'sBoil

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Interesting. So the issue may not be that any individual school isn't giving out athletic scholarships. It's that together, they've agreed as a league to not give out athletic scholarships. That's the anti-trust angle?

But what if you had a few schools here and there all on their own say, you know, we aren't going to give out athletic scholarships, and since there's a handful of us that think the same way, instead of us going up against Alabama and Michigan, let's form our own league with schools with like values and policies, that way our athletes are at least competing on a fairly level playing field.

And then every so often, those league members talk and say, we all still want to be in this league, right? Yep, we do. And it goes from there.

Seems (to me as a total layman in this) like a hard legal argument to make that these schools HAVE to give out athletic scholarships. I mean...athletic scholarships aren't a RIGHT, are they?

But maybe as soon as schools all agree to work together, it violates anti-trust statutes. Hmmm. Interesting.
Nobody is saying schools cannot refuse to give out scholarships. They are saying they cannot agree or conspire to refuse to give out scholarships.

You are free to sell your milk for $5 a gallon. You are not permitted to call all the other stores and say, "let's all agree to sell milk for $5."

Your "values and policies" argument may or may not fly and would depend on a ton of facts about what the true agreement and economic realities are. Nothing in the real world is ever that simple.
 

BaseballJones

ivanvamp
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Nobody is saying schools cannot refuse to give out scholarships. They are saying they cannot agree or conspire to refuse to give out scholarships.

You are free to sell your milk for $5 a gallon. You are not permitted to call all the other stores and say, "let's all agree to sell milk for $5."

Your "values and policies" argument may or may not fly and would depend on a ton of facts about what the true agreement and economic realities are. Nothing in the real world is ever that simple.
But it's not "all the other stores". It's a very tiny handful of stores, within a much larger group of hundreds that aren't agreeing to that. And as it turns out, by agreeing to this, they're putting themselves - athletically anyway - at a competitive disadvantage against all the others. Just a relative few out of a great many are in this agreement.

As in...if there are 363 stores in your city, and 8 of them agree to sell milk for $5, but the rest don't, are those 8 still permitted to do that? Or no?

(I'm not arguing against you...I'm asking questions. I don't know the answer.)
 

DennyDoyle'sBoil

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As in...if there are 363 stores in your city, and 8 of them agree to sell milk for $5, but the rest don't, are those 8 still permitted to do that? Or no?
Probably not. Depends on lots of stuff.

https://www.justice.gov/atr/market-power-without-large-market-share-role-imperfect-information-and-other-consumer-protection

Edit -- defining the "relevant market" is a huge issue in anti-trust cases. Maybe we have an expert here. My sense is that you could have a semester law school class about it.
 

singaporesoxfan

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Is Stanford required to offer athletic scholarships as a result of being in the PAC 10?

And they may not offer athletic scholarships per se, but a lot of Ivy students wouldn’t be there if they couldn’t, for example, play hockey. And a lot of them get need-based scholarships they wouldn’t get elsewhere. You might go to Brown for free and play hockey and you might otherwise go to Merrimack but pay money and not be good enough to make the team. How do you parse that?
Yeah I don’t know if it’s all the Ivies but many offer need based scholarships to cover all students. And those scholarships are better than athletic ones, in that you aren’t compelled to play sports. Let’s say you come in as a lacrosse player and find out your passion is really to be a scientific researcher and the intense training required to play D1 sports wouldn’t make that possible. You can quit the team and still have your scholarship.

I don’t know about the anti trust law, but morally this sounds to be like asking for the creation of a worse type of scholarship because… weathier jocks who wouldn’t qualify for need-based aid could have gotten athletic scholarships?
 

Pesky Pole

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Maybe the Ivy League schools should stop playing sports (or move to D3). They can also stop lowering academic standards for athletes and award those places to worth academic students. When I was in school, a much higher percentage of recruited athletes ended up leaving because they couldn't handle the academics. While many were friends, I reflect back now and realize they took that spot from another kid who was worth academically. (And I realize not all athletes are lesser academically but I also know the standards are lowered).
 

Kliq

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Re: D3 schools. The prestigious academic schools (the NESCAC schools and others) typically have an advantage because while they don't offer scholarships, they have the institutional resources to offer kids strong financial aid and grants that effectively work as scholarships, giving them an advantage over smaller schools. This even allows them to snag D2 or D1 caliber athletes, who are enticed by the educational benefits of going to a school like Middlebury or Williams--and there isn't a huge difference between getting a scholarship and getting a lot of financial aid and support to attend school.
 

joe dokes

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Maybe the Ivy League schools should stop playing sports (or move to D3). They can also stop lowering academic standards for athletes and award those places to worth academic students. When I was in school, a much higher percentage of recruited athletes ended up leaving because they couldn't handle the academics. While many were friends, I reflect back now and realize they took that spot from another kid who was worth academically. (And I realize not all athletes are lesser academically but I also know the standards are lowered).
The Times had a story on this awhile back. The league (I think) allots each school a number of "points" which can be allocated among students below the usual standards in any way the school wants. (One super-athlete way below; or 20 pretty good athletes only a little below, for example). That's very in-a-nutshell.

If the Ivy League (a sports conference) stopped playing sports, what would they call themselves? (asked mostly in jest).
 

Ale Xander

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I think the NCAA is a corrupt outfit. I think the Ivy League has an outsized sense of its importance. And I think this suit is nonsense.
Yes yes and yes

Athletes are free to apply to Northwestern or Stanford or Duke or Rice etc.
 

snowmanny

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Yeah I don’t know if it’s all the Ivies but many offer need based scholarships to cover all students. And those scholarships are better than athletic ones, in that you aren’t compelled to play sports. Let’s say you come in as a lacrosse player and find out your passion is really to be a scientific researcher and the intense training required to play D1 sports wouldn’t make that possible. You can quit the team and still have your scholarship.

I don’t know about the anti trust law, but morally this sounds to be like asking for the creation of a worse type of scholarship because… weathier jocks who wouldn’t qualify for need-based aid could have gotten athletic scholarships?
Right. This only benefits wealthier students. I think all Ivies have need-blind admissions now, but I’m not 100% sure. If not it is close. It’s a gross lawsuit. The plaintiffs should be embarrassed.
 

Pablo's TB Lover

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Right. This only benefits wealthier students. I think all Ivies have need-blind admissions now, but I’m not 100% sure. If not it is close. It’s a gross lawsuit. The plaintiffs should be embarrassed.
It's funny how different people can approach this differently. With the current system, I feel like the compensation to student-athletes goes "underground". The Ivies can conceivably tilt the board towards paying more in non-scholarship financial aid to men's basketball players, but do you think women's lacrosse players get the same considerations? There is an argument that the universities can side-step Title IX while claiming they are "balancing the playing field" for all sexes and sports. But I see your point as well, and see that as a side effect.
 

BaseballJones

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This is the part I'm stuck on:

"The suit argues Ivy League schools illegally conspired to limit financial aid and not compensate athletes for their services."

I can totally see it if you think you're going to be compensated, you sign up with a company (or in this case, a university), and suddenly there's conspiring to deny you compensation.

But the way the Ivy League works has been known to everyone for decades and decades. Every athlete that commits to Harvard knows they're not getting an athletic scholarship. What they ARE getting is an Ivy League education and a chance to play D1 sports. And, like every other Harvard student, if they have financial needs, Harvard has a massive endowment to help them with grants - many will pay nothing in the end anyway. That's the deal, and they all know it.

So if they all know it, and then sign up for it, instead of going to Colgate or Lehigh or any other outstanding school at the lower end of the D1 athletic spectrum, where they could be getting athletic scholarships in addition to great education, how can they be upset when the school THEY CHOOSE TO GO TO isn't giving them an athletic scholarship - which they knew in advance they wouldn't be getting?

None of this means that the Ivies haven't broken anti-trust laws. I haven't got a clue about that part. If they have, they have. But just on the face of it, it's really hard to be sympathetic to the plaintiffs here, IMO.
 

wade boggs chicken dinner

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One thing non-lawyers should know is that the law often doesn't make sense. If it was easy to reason to legal principles, there would be a lot less need for lawyers!

If anyone is interested in the background of this dispute, which (as posted above) grows out of litigation against the Ivy for financial aid dating back to the 1950s, this article goes through the background quickly: https://www.bestcolleges.com/news/analysis/ivy-league-athletic-scholarships-could-be-imminent/.

If anyone is interested in the legal reasoning behind the stance that the Ivies failure to provide scholarship is an antitrust violation, two former Ivy League attorneys in 2021 wrote this letter - https://www.bestcolleges.com/news/analysis/ivy-league-athletic-scholarships-could-be-imminent/ - to 8 Ivy League presidents explaining the reasoning behind this assertion.

The gist of the argument is that SCOTUS in Alston ruled that the NCAA cannot limit in any way the ability any Division I school from offering “education-related compensation or benefitsto student-athletes. The reasoning in Alston (there's a thread on this) is (this is very simplistic) that such rules limit competition and limits on compensation limit the ability of athletes to obtain fair value for his/her talents.

Based on Alston, and because the antitrust exemption expired, the lawsuit simply argues that a rule preventing schools from providing scholarships limits competition and would not be allowed by the NCAA. And if the NCAA can't allow it, the Ivy League schools can't allow it.

One of the arguments that the Ivies will make is that Alston does not prevent individual leagues from having their own rules for many of the reasons set forth in this thread.

It will be interesting to see how this plays out. We obviously won't know for years.
 

BaseballJones

ivanvamp
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One thing non-lawyers should know is that the law often doesn't make sense. If it was easy to reason to legal principles, there would be a lot less need for lawyers!

If anyone is interested in the background of this dispute, which (as posted above) grows out of litigation against the Ivy for financial aid dating back to the 1950s, this article goes through the background quickly: https://www.bestcolleges.com/news/analysis/ivy-league-athletic-scholarships-could-be-imminent/.

If anyone is interested in the legal reasoning behind the stance that the Ivies failure to provide scholarship is an antitrust violation, two former Ivy League attorneys in 2021 wrote this letter - https://www.bestcolleges.com/news/analysis/ivy-league-athletic-scholarships-could-be-imminent/ - to 8 Ivy League presidents explaining the reasoning behind this assertion.

The gist of the argument is that SCOTUS in Alston ruled that the NCAA cannot limit in any way the ability any Division I school from offering “education-related compensation or benefitsto student-athletes. The reasoning in Alston (there's a thread on this) is (this is very simplistic) that such rules limit competition and limits on compensation limit the ability of athletes to obtain fair value for his/her talents.

Based on Alston, and because the antitrust exemption expired, the lawsuit simply argues that a rule preventing schools from providing scholarships limits competition and would not be allowed by the NCAA. And if the NCAA can't allow it, the Ivy League schools can't allow it.

One of the arguments that the Ivies will make is that Alston does not prevent individual leagues from having their own rules for many of the reasons set forth in this thread.

It will be interesting to see how this plays out. We obviously won't know for years.
That's super interesting, and thank you so much for that insight. I do wonder: Just because the NCAA can't allow it, why does that mean that a group of schools can't, on their own, allow it? Or....to extend the logic... if it's true that if the NCAA can't allow it, it also means that a conference (being a subset of the NCAA) can't allow it, wouldn't that logic also mean that individual schools (being a subset of a conference, being a subset of the NCAA) can't allow it? The logic is the same, right?

Which seems...... crazy. Because it would SEEM to me that if the law says the NCAA (or any of its member programs - conferences or schools) can't limit or withhold athletic scholarships, then it actually FORCES schools to provide athletic scholarships.

And why is D3 exempt? Are they not part of the NCAA? I get that they don't have as much money, but that's not really the LEGAL principle, right?

Moreover, this kind of assumes that athletic scholarships are some sort of right. I don't know any argument that can be really made along those lines. Lots of players at Alabama aren't on scholarship. You can play college sports just fine without any athletic scholarship - without receiving education-related compensation or benefits.

One more moreover.... NCAA rules limiting the NUMBER of scholarships IS - is it not? - a "limit" on a school's ability to provide these benefits for athletes. The football player who is a walk-on puts in the same exact number of hours as the scholarship player does. But the school is LIMITED by NCAA rule - they only have X number of scholarships to give out. That limits them, by definition.

So yeah, this is all my way of saying....I don't get this at all.
 

djbayko

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This is the part I'm stuck on:

"The suit argues Ivy League schools illegally conspired to limit financial aid and not compensate athletes for their services."

I can totally see it if you think you're going to be compensated, you sign up with a company (or in this case, a university), and suddenly there's conspiring to deny you compensation.

But the way the Ivy League works has been known to everyone for decades and decades. Every athlete that commits to Harvard knows they're not getting an athletic scholarship. What they ARE getting is an Ivy League education and a chance to play D1 sports. And, like every other Harvard student, if they have financial needs, Harvard has a massive endowment to help them with grants - many will pay nothing in the end anyway. That's the deal, and they all know it.

So if they all know it, and then sign up for it, instead of going to Colgate or Lehigh or any other outstanding school at the lower end of the D1 athletic spectrum, where they could be getting athletic scholarships in addition to great education, how can they be upset when the school THEY CHOOSE TO GO TO isn't giving them an athletic scholarship - which they knew in advance they wouldn't be getting?

None of this means that the Ivies haven't broken anti-trust laws. I haven't got a clue about that part. If they have, they have. But just on the face of it, it's really hard to be sympathetic to the plaintiffs here, IMO.
Why should it matter that it's been known? Either the organizations are engaging in anti-competitive behavior or they aren't. And it seems the only thing that was shielding them from such a lawsuit was a special carve-out by the federal government saying that they were allowed to engage in such anti-competitive behavior.

Let's say all of the gas stations in the nation conspired to tack on a $3 per gallon "fuck 'em" fee, and the government allowed it for a number of years. Once that exemption was lifted, wouldn't you want them to get rid of the "fuck 'em" fee?

To me it's pretty simple. Organizations aren't allowed to collude because that is bad for consumers. If Harvard doesn't want to offer athletic scholarships, they are completely free to make that decision on their own. And Yale is free to decide on their own that they want to offer athletic scholarships, to possibly get a leg up on Harvard. Oh look...now Harvard is reconsidering their position on athletic scholarships because they lost some top recruits and the overall quality of their incoming class is on a downtrend!
 
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DennyDoyle'sBoil

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Moreover, this kind of assumes that athletic scholarships are some sort of right.
None of this assumes that a scholarship is a right. Scholarships are things that schools can choose to offer in order to compete for a limited resource with other schools. Nobody is forcing schools to award scholarships. The plaintiff is seeking damages because the plaintiff is alleging the schools conspired to be anti-competitve and tried to avoid the consequence of making a decision not to offer scholarships by engaging in illegal acts (conspiring).

You're looking at this through the prism of the schools. Anti-trust laws are about the consumer (here the students).

It's pretty clear that you have a very firm opinion about all this and would be a juror that the defendants would love to have. Some people hate anti-trust laws -- they think they are restrictive and that all should be fair and that government should never regulate business. It seems pretty clear that this is where you come out, at least on this issue, and that's fine. But understand that you're couching arguments in the form of questions that you believe are neutral, but they aren't.

Most agree that innovation comes from competition and that, left to their own devices, corporations (and, make no mistake, while they may be non-profits for tax purposes, Universities are businesses) will cheat and conspire to enhance profits and that will stifle innovation. That's why anti-trust laws exist -- to promote competition. And scholarships promote competition.
 

BaseballJones

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None of this assumes that a scholarship is a right. Scholarships are things that schools can choose to offer in order to compete for a limited resource with other schools. Nobody is forcing schools to award scholarships. The plaintiff is seeking damages because the plaintiff is alleging the schools conspired to be anti-competitve and tried to avoid the consequence of making a decision not to offer scholarships by engaging in illegal acts (conspiring).

You're looking at this through the prism of the schools. Anti-trust laws are about the consumer (here the students).

It's pretty clear that you have a very firm opinion about all this and would be a juror that the defendants would love to have. Some people hate anti-trust laws -- they think they are restrictive and that all should be fair and that government should never regulate business. It seems pretty clear that this is where you come out, at least on this issue, and that's fine. But understand that you're couching arguments in the form of questions that you believe are neutral, but they aren't.

Most agree that innovation comes from competition and that, left to their own devices, corporations (and, make no mistake, while they may be non-profits for tax purposes, Universities are businesses) will cheat and conspire to enhance profits and that will stifle innovation. That's why anti-trust laws exist -- to promote competition. And scholarships promote competition.
I know nothing about the law. I’ve made that clear. I’m speaking as a single individual but I’ve said all along that from an anti trust standpoint the case may have merit, but I don’t know.

I thought my questions in my previous post were good ones, but I guess they weren’t.
 

HowBoutDemSox

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That's super interesting, and thank you so much for that insight. I do wonder: Just because the NCAA can't allow it, why does that mean that a group of schools can't, on their own, allow it? Or....to extend the logic... if it's true that if the NCAA can't allow it, it also means that a conference (being a subset of the NCAA) can't allow it, wouldn't that logic also mean that individual schools (being a subset of a conference, being a subset of the NCAA) can't allow it? The logic is the same, right?
The issue is that two competitors generally can’t agree to stop competing with each other. Two or more schools, whether directly, or through a conference, or through the NCAA itself, can’t agree to not compete on compensation (in this case, athletic scholarships). Any individual school can absolutely, 100% decide on its accord not to offer scholarship. It’s the collusion between the schools that makes this an antitrust issue.

This stuff is super complex, even amongst attorneys, but first principles are that the Sherman Act says “Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce . . . is declared to be illegal.” It’s the contract among the eight Ivy League schools that’s the issue here. So when you say “wouldn't that logic also mean that individual schools (being a subset of a conference, being a subset of the NCAA) can't allow it?” the answer is that the logic does not apply to individual schools making independent decision. That’s why the suit is not about a “right” to scholarship, it’s about whether or not schools can make agreements with each other around limiting scholarships.

That’s not the end of the analysis, there are a million other factors at play in an antitrust case, but that’s the basic premise of the suit.
 

DennyDoyle'sBoil

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I know nothing about the law. I’ve made that clear. I’m speaking as a single individual but I’ve said all along that from an anti trust standpoint the case may have merit, but I don’t know.

I thought my questions in my previous post were good ones, but I guess they weren’t.
I'm not saying they are not good questions. I'm saying that they are kind of arguments or opinions embedded in questions. I'm not being critical of that. I'm just saying what it is so you understand you may not get satisfactory answers, because the anti-trust law reflects legislative policy judgments with which you may just fundamentally disagree, which is fine. Nobody likes all laws.

It would be like me asking, why shouldn't students get to chose among colleges that have not colluded to eliminate athletic scholarships?
 

BaseballJones

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Another legitimate, honest to goodness real question here: if a bunch of schools that don’t want to give out athletic scholarships decide to all form a league together so that they’re on a more level playing field instead of having to be in leagues with schools that do offer them, would that still be collusion?

And then if, at some point down the road, those teams all reaffirm that anyone that wants to stay in the league can, as long as they keep not handing out athletic scholarships, but if you now want to hand them out, that’s fine; you just have to leave the league….Is that still collusion?
 

HowBoutDemSox

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Another legitimate, honest to goodness real question here: if a bunch of schools that don’t want to give out athletic scholarships decide to all form a league together so that they’re on a more level playing field instead of having to be in leagues with schools that do offer them, would that still be collusion?

And then if, at some point down the road, those teams all reaffirm that anyone that wants to stay in the league can, as long as they keep not handing out athletic scholarships, but if you now want to hand them out, that’s fine; you just have to leave the league….Is that still collusion?
You’re touching on one of the complicating factors here, which is that having athletic competitions inherently means some kind of agreement between competitors that defines the kind of competition that will take place. Is that need for shared rules of competition enough to override the general principle that economic competitors can’t agree not to compete on compensation in this particular situation? That’s one thing the courts will have to untangle. And in your hypothetical, exactly how and why those competitors got together and how and why they created the rules they have will be factored in the analysis by the court.
 

finnVT

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The issue is that two competitors generally can’t agree to stop competing with each other. Two or more schools, whether directly, or through a conference, or through the NCAA itself, can’t agree to not compete on compensation (in this case, athletic scholarships). Any individual school can absolutely, 100% decide on its accord not to offer scholarship. It’s the collusion between the schools that makes this an antitrust issue.

This stuff is super complex, even amongst attorneys, but first principles are that the Sherman Act says “Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce . . . is declared to be illegal.” It’s the contract among the eight Ivy League schools that’s the issue here. So when you say “wouldn't that logic also mean that individual schools (being a subset of a conference, being a subset of the NCAA) can't allow it?” the answer is that the logic does not apply to individual schools making independent decision. That’s why the suit is not about a “right” to scholarship, it’s about whether or not schools can make agreements with each other around limiting scholarships.

That’s not the end of the analysis, there are a million other factors at play in an antitrust case, but that’s the basic premise of the suit.
Don't other conferences set limits on how many scholarships can be awarded? Why is it different if a conference (or the NCAA) is saying "we set the cap at 0" vs "we set the cap at 85" (in the case of FBS football)?
 

OCST

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The more I read about it, the more it makes sense. I don’t know nearly enough to know if they have a case on the law and the facts- but while my first reaction was that it was frivolous, there’s enough of a admissions-and-financial-aid fixing history and enough of an agreement not to compete among the 8, that it’s plausible.
 

HowBoutDemSox

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Don't other conferences set limits on how many scholarships can be awarded? Why is it different if a conference (or the NCAA) is saying "we set the cap at 0" vs "we set the cap at 85" (in the case of FBS football)?
The answer could be as simple as that no one has brought a suit on that theory yet, or it could be that a limit of 85 scholarships is more “reasonable” under antitrust law than zero scholarships. It’s certainly a harder case than the Ivy League case, so potential plaintiffs could wait to see how that one shakes out first.
 

Cellar-Door

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Don't other conferences set limits on how many scholarships can be awarded? Why is it different if a conference (or the NCAA) is saying "we set the cap at 0" vs "we set the cap at 85" (in the case of FBS football)?
It probably isn't, just nobody has sued yet. NCAA also used to say you couldn't provide other educational benefits until NCAA v. Alston (wiki primer on it here: https://en.wikipedia.org/wiki/National_Collegiate_Athletic_Association_v._Alston), where they found that laptops, instruments, study abroad expenses, post-eligibility scholarships, paid internships etc. couldn't be banned.
Also based on the language of the opinions (the Gorsuch written unanimous decision and Kavanaugh's concurrence) they raised serious questions about a number of other areas not being decided in that case.
 

AB in DC

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But all of this discussion is missing the fact that the Ivies do offer scholarships. They call it "need-based financial aid". They're not athletic scholarships, but I'm not sure why that matters.
 

Cellar-Door

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But all of this discussion is missing the fact that the Ivies do offer scholarships. They call it "need-based financial aid". They're not athletic scholarships, but I'm not sure why that matters.
Not really, it's irrelevant to whether conspiring not to offer athletic scholarships is an anti-trust violation. It's like saying that because companies within an industry sometimes give bonuses they aren't in violation when they agree to set wages at a below market rate.
 

singaporesoxfan

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It's funny how different people can approach this differently. With the current system, I feel like the compensation to student-athletes goes "underground". The Ivies can conceivably tilt the board towards paying more in non-scholarship financial aid to men's basketball players, but do you think women's lacrosse players get the same considerations? There is an argument that the universities can side-step Title IX while claiming they are "balancing the playing field" for all sexes and sports. But I see your point as well, and see that as a side effect.
This description seems counter to everything about the way most Ivies dole out financial aid, or at least the way they say they do. Aid is supposed to be based on need, not based on what you do at the school. If it was found out that athletes in glam sports got more financial aid simply because they played those sports the alumni uproar would be quite intense, which is part of why I believe most Ivies don’t align financial aid that way.

(Where marquee sports most benefit is probably that in such sports they relax the academic part of the admissions criteria more.)

If this suit succeeds, and if any Ivy decides to implement it, the net result could be that poorer student-athletes will get shittier scholarships than what they’re getting now
 

wade boggs chicken dinner

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That's super interesting, and thank you so much for that insight. I do wonder: Just because the NCAA can't allow it, why does that mean that a group of schools can't, on their own, allow it? Or....to extend the logic... if it's true that if the NCAA can't allow it, it also means that a conference (being a subset of the NCAA) can't allow it, wouldn't that logic also mean that individual schools (being a subset of a conference, being a subset of the NCAA) can't allow it?
just to be clear, Alston is the first case saying that the NCAA is subject to standard antitrust analysis and SCOTUS ruled on a narrow issue. All of the lawsuits being filed - including the Ivy scholarship lawsuit - is an attempt to see how far it goes.

What we know for sure right now is that the NCAA cannot limit "education-related compensation or benefits" while individual schools can do whatever they want. Whether conferences or Div 3 are more like the NCAA or more like an individual school will to be litigated. This will also depend on what rule is being challenged.

Going to be lots of billable hours for attorneys fortunate enough to be experts in this field.
 

InstaFace

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Case tracker here, and complaint available here.

I have a long history on SoSH of dancing on the grave of the NCAA, and I strongly believe that revenue sports players should be paid as a result of free-market negotiation.... but I find this suit to be silly.

The way I think about it involves following the argument to its logical conclusion:

(1) OK, suppose the court buys their argument. The schools colluded! They are now enjoined from following that agreement or anything like it. The schools' response is to... do nothing. Continue not offering athletic scholarships, voluntarily, because the principles they espoused insist upon it - their aid is need-based, and they're not going to take an opportunity out of the hands of someone academically deserving and put it into that of an athlete just for the sake of winning a few more games*. That would privilege one class of students above another, make a mockery of whatever remains of meritocracy in their institutions, and dammit if anyone is going to privilege a class, their own cushioned asses are going to be the ones to decide it, not some judge! So fine, nobody outside the schools themselves can insist that any school follows such a principle, but if the schools each, separately, wish to continue doing so, and then compete mostly against other like-minded schools, well that's our own choice, isn't it?

(2) So then the judge goes further, and rules that Brown and the others must award athletic scholarships. In particular, there is some market value of the labor they are providing, that market value is reflected in the average comp package given to D1 basketball players, and therefore they need to offer similar terms. It's a business, run by the court! Next, then, will come the haggling: how many scholarships do they need to offer? Do they all need to be full rides? Who is the comparison pool of schools whose scholarship programs they need to emulate? What happens when the comps start paying more than just scholarships, will the schools then need to pay salaries too? And which sports does this apply to? Carleton College offers full-ride scholarships to ultimate frisbee players, maybe everybody should get in line to join the class.

It's pretty easy to see that there can't really be a court-ordered remedy here, because you can't run some scholarship program from the bench, and can't mandate a willingness-to-pay that doesn't exist. In every other case affected by Alston, the schools wanted to be able to entice athletes with money, but were prevented from doing so by NCAA rules. They wanted to compete to the best of what the economics of their athletics department would allow. The Ivies, uniquely, do not want to do so. All the money in the world cannot buy the wag of a dog's tail, and all the court orders in the world can't make a set of schools decide that the success of their basketball or football teams must be the highest and best use of their scholarship money.

Where I could see some further cracks in the NCAA edifice appearing here, though, is if the court rules that, well, these players are employees, and so laws that apply to employees need to be applied to them. Minimum wage. Working hours. Working conditions. And an ability to bargain for those wages. If the court wants to go fully down the exploitation-of-labor rabbit hole that exists in big-money college sports, I am all for it! But that has nothing to do with mandating the willingness-to-pay of the employer. If Google decided they were only going to hire software engineers who were willing to work for minimum wage, their business would suffer, but that would be within their rights, no? Google's offer can't be "zero", but it does not need to be any number that they deem uneconomical or not in the best interests of their business. Likewise, in my view, schools should not be able to continue to insist that athletes "Sing for their supper", work for the education and nothing else - there should be a free market setting the price of that labor. But you can't insist that some particular participant in that market try harder to win the bidding. If some school decides not to pay up for talent, and that yields a poorer quality of basketball or football player, well, so be it, that's their tradeoff to make.

Relying on Alston here is perverse to the point of being disingenuous, imo.

One thing that the complaint notes that is relevant to the analysis here is a previous consent decree entered into with the DOJ by the Ivy League schools plus MIT, in 1992. That dealt purely with financial aid to prospective students, and an agreed-upon formula existing between those 9 schools to determine the family contribution, so that students couldn't bid schools against each other to get a better offer. It was superseded by Congress passing an exception to prohibitions on such fixing, called Section 568, so long as the schools' admissions policies were truly need-blind (as Cellar-Door referred to above). That was widely regarded as a cynical farce, but regardless that exception expired late last year, hence the various other suits about elite schools' admissions and financial aid policies. This is only somewhat related, because the choice to give an athletic scholarship seems quite distant from those topics, and gets into far more subjective judgments on relative worth.

#3 "[Plaintiffs] each were recruited to play a sport by at least one of the University Defendants and received full cost-of-attendance athletic scholarship offers from at least one other Division I college. As a result of the Ivy League Agreement, however, Brown awarded Plaintiffs only need-based financial aid that did not cover either of their full costs of attendance—tuition, room, board, and incidental expenses— and paid them no other compensation or reimbursement for their athletic services to the school"

> ok, so you had multiple bids for your services, at least one of which wasn't the Michael Corleone-to-the-Senator offer, and you chose the offer of... nothing. What impelled plaintiffs to choose that path? Perhaps due to other, non-pecuniary benefits that they valued more highly? Huh. Well now isn't that interesting.

#9 "The University Defendants aggressively compete with each other—without any agreed upon limits—on wages and compensation paid to faculty, administrative staff, development officers, professors, teaching assistants, financial advisors, marketing professionals, [it goes on]. The University Defendants also aggressively compete—without any agreed upon limits—on wages and compensation paid to sports coaches, trainers, analysts, psychologists, and staff.

> You know, this is a good point, but undone a bit by one question: could they lawfully decide that they didn't value one of those categories as highly as "competitors" and thus were not prepared to pay amounts necessary to win their services? What if it were to pay less to group A (or hire fewer) in order to pay more to group B (or hire more)? Because that is essentially what they're doing by limiting themselves to need-based financial aid.

#12 "In NCAA v. Alston, 141 S. Ct. 2141 (2021), the Supreme Court struck down NCAA limits on athletic scholarships for Division I football and basketball athletes for education-related benefits as a violation of Section 1 of the Sherman Act. As Justice Kavanaugh stated in his concurring opinion in Alston: “Nowhere else in America can businesses get away with agreeing not to pay their workers a fair market rate on the theory that their product is defined by not paying their workers a fair market rate.” Yet that is precisely what the University Defendants have done through the Ivy League Agreement. The University Defendants can assure the academic quality of
their institutions through the less restrictive alternative of agreement on minimum academic admissions standards. "

> I see we're in for a lot of semantic confusion on the term "fair market rate". I point again to the petard the plaintiffs hoisted themselves on in paragraph #3 above. They had a choice of money, or "go to Brown", and they opted for the latter, of their own free will. The fair-market compensation level of "go to Brown", absent any other dollars changing hands, is thus clearly substantial. In the wake of Alston, with it no longer the case that all bidders for their services are limited by NCAA rules to the cost-of-attendance, they now have something resembling a free market. Plaintiffs, indeed, availed themselves of it. Plaintiffs make a big deal of Stanford and Duke and Notre Dame (but notably not MIT or Caltech!) offering athletic scholarships. So in my mind, the plaintiffs still have a substantial burden to show that they do not have a market setting a price for their services (including Stanford giving its basketball scholarships to, ya know, better players), and likewise the freedom to determine which offer best serves their long-term interests.

There's a lot of red herrings in this complaint, making the whole thing smell quite fishy. Extended discussion of how big-money all of D1 athletics is (across all ~350 institutions), or how the Ivy League itself protects and markets its brand, or all the NIL payments that are paid-for by unaffiliated third parties, feels analogous to guilt-by-association.

OK I'm going to stop short of reading the whole thing. The real meat of it begins page 27 if anyone cares though.

* and this is why the gas-station analogies fail. Schools each year, Ivies included, have a budget-determined pool of financial aid to distribute. They're "spending" that amount of money regardless (in the sense of making disparate price discounts from their rack rate). In a very real sense, the suit is trying to force them to give it to Muffy the fencer who's coming from a well-off family, rather than Adriana the marginal academically-elite URM who otherwise can't attend. The schools currently not awarding athletic scholarships does not mean they put it in their pocket and pay out extra bonuses or something.
 
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InstaFace

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Edit -- defining the "relevant market" is a huge issue in anti-trust cases. Maybe we have an expert here. My sense is that you could have a semester law school class about it.
IIRC, @bowiac is an antitrust lawyer. Perhaps the topic interests him enough to comment.

As for the relevant market, the complaint asserts its market (par 7) in creative and original terms that I have never seen elsewhere: their market is "the market for educational services for athletically and academically high-achieving (“AAHA”) students who seek to graduate from college and play Division 1 sports in the National Collegiate Athletic Association".

They discuss the market in those terms - "AAHA students" - in pages 27-30 (discussing restrictions on price competition) and then the market characteristics in pages 44-52. So that's clearly plaintiffs' opening bid to define the market. The schools will surely argue that all D1 athletes, or indeed all college students, are their market. It's just a bit jarring to see someone make up an entire concept like that and then defend it, in what is otherwise a very serious and mostly-sober legal filing.
 

Pablo's TB Lover

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This description seems counter to everything about the way most Ivies dole out financial aid, or at least the way they say they do. Aid is supposed to be based on need, not based on what you do at the school. If it was found out that athletes in glam sports got more financial aid simply because they played those sports the alumni uproar would be quite intense, which is part of why I believe most Ivies don’t align financial aid that way.

(Where marquee sports most benefit is probably that in such sports they relax the academic part of the admissions criteria more.)

If this suit succeeds, and if any Ivy decides to implement it, the net result could be that poorer student-athletes will get shittier scholarships than what they’re getting now
Curious why you think the bolded? The individual schools can make the best decision for themselves, just not as a whole group. If a school gives full scholarships even just to the men's basketball team then by Title IX default the women's basketball team, you have 24-ish more people that get a full ride than are getting now. Does that mean the school deducts this money from the need-based scholarships? With the endowments these universities have, that would be somewhat shitty.

You may have a few well-to-do athletes that more dollars go to than they would under need-based aid, but I think the point is these athletes are playing D-I basketball and representing the school. I look at the free rides as a marketing tax: in no way as a civilian student could I have done class presentations in front of thousands of crazed fans and been a solid representative of the university while getting busted having open containers in the dorm, which is what we tend to hold these student-athletes to.

If it is not clear, IANAL and just speaking to this as an NCAA basketball lifer. I love having the Ivies around in "big-time" college basketball, but as to the first point about athletes not getting more aid because they play sports, my thought is if their model starts with that credo then maybe Division I isn't their speed now that NIL is in existence and the upper echelon of NCAA competition is actually starting the long transition from a pyramid scheme to a "fair" business. I have a feeling the Ivy alumni would adapt and not revolt to accept the new paradigm if the courts ruled against the league, however.
 

ehaz

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IIRC, @bowiac is an antitrust lawyer. Perhaps the topic interests him enough to comment.

As for the relevant market, the complaint asserts its market (par 7) in creative and original terms that I have never seen elsewhere: their market is "the market for educational services for athletically and academically high-achieving (“AAHA”) students who seek to graduate from college and play Division 1 sports in the National Collegiate Athletic Association".

They discuss the market in those terms - "AAHA students" - in pages 27-30 (discussing restrictions on price competition) and then the market characteristics in pages 44-52. So that's clearly plaintiffs' opening bid to define the market. The schools will surely argue that all D1 athletes, or indeed all college students, are their market. It's just a bit jarring to see someone make up an entire concept like that and then defend it, in what is otherwise a very serious and mostly-sober legal filing.
So the relevant market comprises all the Ivy League schools, because AAHA students would not view colleges or universities outside the Ivy League with D1 athletics to be reasonable substitutes since they don't have the same academic prestige.

But at the same time, the fact that Duke/Stanford/Rice give out athletic scholarships is proof that the Ivy League Agreement has no pro-competitive justifications because those schools "demonstrate they can maintain stellar academic standards while competing for excellent athletes."

Ok then.
 

radsoxfan

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As a non-lawyer and not taking time to dive into the details, seems like kind of an odd lawsuit.

1. A lot of the athletes in the Ivy League are on scholarship already (need-based)

2. If the Ivy athletes not on scholarship want an athletic scholarship, many of them can go to other schools and get one. As a Brown alum, I'm not naive enough to think the Ivy leagues have some monopoly on a good education.

3. Forcing scholarships to be funneled the middle/upper class athletes will almost surely take them away from other lower class students (why would the schools decide they suddenly have more $ to give out?)

Seems like some rich parents are annoyed their kids are good athletes, kinda smart, and "deserve" a free ride to an Ivy. College tuition is out of control but my sympathy level for their lawsuit is extremely low.


Edit: (I reserve the right to change my mind if my son ends up being an Ivy league athlete).