Lawsuit against the Ivy League

ehaz

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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).
This also makes it a tricky class to certify. There are presumably a lot of Ivy League student athletes whose need-based aid at say Princeton is better than whatever partial athletic scholarship they would have been able to earn at a non-Ivy D1 school.
 

BaseballJones

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Let's assume for the sake of discussion that this suit is victorious. Can a lawyer here help me understand why it wouldn't ALSO apply to D3 schools? They are in an agreement with the NCAA to not hand out athletic scholarships. Literally not only in an agreement with each other, but with the NCAA. I get that they don't have as much money as D1 athletic departments, but Williams College (they're not all like Williams) is a really wealthy school. And besides, why should the amount of money a school has be the determining principle here? If there's antitrust laws preventing schools from agreeing to not give out scholarships, then there's antitrust laws preventing schools from agreeing to not give out scholarships. There's no distinction between whether the school is Princeton and Yale or Williams and Connecticut College.
 

joe dokes

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For me, there's a disconnect because "scholarships" is getting conflated with "getting paid for their services/profiting from their likeness." They really dont have much to do with each other.
 

mauf

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Let's assume for the sake of discussion that this suit is victorious. Can a lawyer here help me understand why it wouldn't ALSO apply to D3 schools? They are in an agreement with the NCAA to not hand out athletic scholarships. Literally not only in an agreement with each other, but with the NCAA. I get that they don't have as much money as D1 athletic departments, but Williams College (they're not all like Williams) is a really wealthy school. And besides, why should the amount of money a school has be the determining principle here? If there's antitrust laws preventing schools from agreeing to not give out scholarships, then there's antitrust laws preventing schools from agreeing to not give out scholarships. There's no distinction between whether the school is Princeton and Yale or Williams and Connecticut College.

Antitrust violations can be split broadly into two categories: violations of “per se” rules, and violations of the so-called “rule of reason.” Per se violations are things such as price fixing agreements that are illegal without regard to intent or market impact. Cases under the rule of reason turn on principles that aren’t so bright-line: relevant market, totality of the circumstances, reasonableness, and so on. This article is a good primer — and it’s written in a nice reverse pyramid, so you can stop reading when the detail turns boring for you.

https://www.law.cornell.edu/wex/antitrust_laws

The NCAA lost Alston, but the courts applied the rule of reason. In other words, they ruled that the specific NCAA rules at issue unreasonably restricted competition. Kavanaugh’s concurrence invites the lower courts to apply the reasoning behind Alston broadly; it doesn’t argue that the NCAA is a cartel whose very existence is unlawful. I don’t know why the plaintiffs in the Connecticut case think they can sustain a per se case against the Ivy League.

If the plaintiffs are under the rule of reason, it will very much matter that the alleged unlawful conspiracy involves only eight schools that wouldn’t compete for most top talent anyway — the market impact is much less than if, say, the NCAA banned athletic scholarships. A hypothetical case against D-III schools or a subset of them would be even less likely to survive than the case against the Ivies.
 

wade boggs chicken dinner

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Let's assume for the sake of discussion that this suit is victorious. Can a lawyer here help me understand why it wouldn't ALSO apply to D3 schools? They are in an agreement with the NCAA to not hand out athletic scholarships. Literally not only in an agreement with each other, but with the NCAA. I get that they don't have as much money as D1 athletic departments, but Williams College (they're not all like Williams) is a really wealthy school. And besides, why should the amount of money a school has be the determining principle here? If there's antitrust laws preventing schools from agreeing to not give out scholarships, then there's antitrust laws preventing schools from agreeing to not give out scholarships. There's no distinction between whether the school is Princeton and Yale or Williams and Connecticut College.
If plaintiffs win, the ruling wouldn't apply to D3 because that's not at issue. It would take another set of litigation - which, again presuming that plaintiffs win, which I do not think is the most likely case but am assuming for sale of discussion, would be brought by the same group of plaintiffs lawyers as soon as they find good plaintiffs.

Basically, people are litigating to see how far Alston goes. Just for your benefit, it's going to stop somewhere. It may actually stop at Ivys and scholarships.

edit: phone typos
 
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lexrageorge

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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?
Fundamentally, I agree with you that there should be no problem with a group of colleges deciding not to offer athletic scholarships. There is no legal principle that I am aware of that schools need to offer athletic scholarships, even NCAA Division 1 schools. And from a policy standpoint, I see no harm in such schools forming their own conference inside the NCAA umbrella. I am not at all convinced that this lawsuit should stand.

At the same time, as noted upthread, there is a societal benefit to antitrust laws. It would not be fair, for example, if a bunch of stores got together and decided that they would not lower prices of their goods below a certain threshold. A truly free market must be free of collusion by private entities as well be free from onerous regulation by the government. And the Ivy League schools have colluded in the past on financial aid awards to prospective students (a truly risible practice which was correctly found to be in violation of antitrust laws).

So, while I think the lawsuit is dumb and the plaintiffs should lose, it's hard to feel much sympathy for the Ivies in this case.
 

InstaFace

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As for what's a better analogy than gas prices or milk prices, I'm searching a bit to come up with a halfway decent one.

I think the answer starts with a concept from economics: there are 3 types of goods, Search, Experience and Credence goods. Search goods are ones where you know what you want, you go out to buy it, are buying mostly on price, and you can assess quality before you buy it. Like a head of lettuce. Experience goods are ones you might not be able to assess quality beforehand, but after you have used the good, you have a good idea of its quality. Like a ride on a roller coaster, or going to a restaurant. Credence goods, meanwhile, are those whose quality you may never be able to ascertain even after using it, or at least for years later. Getting a knee replacement surgery, for example. Maybe you got a good one, or a bad one, you'll know in 10-15 years. With experience goods, consumers benefit substantially from review websites. With credence goods, consumers rely on signals relating to prestige, credentials and expert opinion.

Elite university education is almost the canonical example of a credence good. However, once you leave the tier of the educational world where the value proposition revolves around brand value and "Be a part of this awesome cohort", and get to schools that are more fungible, it starts being less and less of a credence good. Average schools like Merrimack College are mostly an experience good - at the end, you have a pretty good idea of whether you got good value for money, based on the classes you took and job opportunities you got (or didn't), and the value of having gone to school with a bunch of other really bright people and being branded with the same brand is really not a factor in evaluating that.

What collusion might exist elsewhere among credence goods? Well, obviously doctors or management consultants could conspire to fix the prices of their services. Bankers seem to be constantly trying to collude to either sell people shitty products, price their services higher, etc, but between new laws and things like ETFs they've been largely beaten back. But that sort of thing doesn't properly encompass the odd situation in play here where the customer is kinda also the product. The athletes claim they deserve - nay, are entitled to - compensation over and above merely getting the educational brand marker that was clearly the reason they chose to attend the school. And for the reason that they generate a lot of money for the schools they attend.

So, what is a credence-good situation where the customer is also the product? Social media comes to mind. Perhaps we can say "influencers on a social media platform". These influencers want to build their brand and have some of the shine of an Instagram or Youtube rub off on them. They want the legions of followers and attention. But they're alleging that the handful of social media platforms with enough reach to give them the value they seek, have also agreed amongst themselves not to pay influencers. "you're paid in exposure", they're told, and they can figure out how to monetize that themselves, later. TV appearances, product placement, etc (analogous to NIL deals). And while a single platform might reasonably decide "we're not going to pay users for their content, no matter how many impressions it generates" (as Facebook and Twitter do), others decide to revenue-share (including Youtube), Quora tried to and then stopped and haven't really figured it out... so there hasn't been that sort of collusion. But if they did - if FB/TW leaned on Google / Apple / whoever to cease paying content creators, and discuss it among themselves - well, I'd be hard pressed not to call it a restraint of trade. That's the sort of decision that should be up to the companies individually, and it's legal for them to decide either way, but not to collude. But there's still a major difference from the benefits ivy athletes already get from attending.

Same with app stores, where the product (come on, phone users, and download all this good stuff in our app store!) is also the customer paying for those very apps: namely, the app developers, some of whom were or become name brands. The app stores themselves are promising that they're getting the good apps in front of millions of phone users, spending a lot on marketing, etc. But you know how I know that's not a fixed market? When it launched, Apple kept 40% of sales. Now it's 30%, but certain volumes can get that down to 15%. Competition from Google/Android and OEM app stores has driven the pricing down. If they had all conspired to fix the house's rake at 40%, we would all be up in arms. On the other hand, apps are also kinda an experience good: once you use them / play with them, you know whether it's a good one or a bad one, and you have a lot of reviews to help steer that.

How does that affect how I view the plaintiffs and the class they purport to represent? I suppose like this:
  • Just because the customer is also the product, doesn't really change the importance of preventing trust-like anticompetitive behavior.
  • The biggest element that distinguishes this for me is the extent to which the athletes are already getting vague, hard-to-value benefits just from attending, benefits that they clearly value immensely. For most universities, the brand value is local-to-regional at best. For elite universities, it's an entirely different category and more analogous to acquiring the benefits of being born rich than it is to being (say) a paid influencer on social media.
  • Individual universities could fairly decide not to pay athletes over and above their financial need (not least because it's coming from a set pool of price discounts, I mean "aid"). If these 8 all decided that independently, and then independently decided that they'd prefer to compete against other such schools in order to have a level playing field, that would be legal, right? The complaint tries to address this in pages 50-52, arguing there is no pro-competitive justification for the agreement. But it does not contend with the idea that schools can choose to compete against who they want, through choice of conference.
  • There's not really an analogous situation to a credence good where the customer is also the product and gets a huge amount of intangible value out of being the product. In particular, nearly all other goods in trade would not see sellers independently restricting their own outlays to acquire better product due to other market forces (like a desire to provide more need-based aid); they could / would only decide to lower their prices under the protections of collusion.
  • The complaint tries to get at this, too, in pages 34-37, arguing that the universities are not operating in an altruistic fashion, as MIT apparently was judged to be in the 1993 case following the DOJ consent decree. It mostly focuses on legacy admissions and "development" admissions (admitting kids of big donors) as evidence against altruism; but a fair evaluation would present the steadily-increasing share of financial need that the schools are meeting (as the schools' rebuttal surely will).

I guess the altruism argument and the value-of-attendance argument is the most interesting to me. To the extent that the case turns on those, it will be some fascinating reading. I have no idea if other cases have ever had to reach conclusions on that before - maybe the 1993 Brown case, MIT's suit that reached the Third Circuit.
 

InstaFace

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Here’s a copy of the complaint.
There's a lot of people I don't mind having me on ignore, but as a long-time admirer of Mauf, this one hurts. :)

For me, there's a disconnect because "scholarships" is getting conflated with "getting paid for their services/profiting from their likeness." They really dont have much to do with each other.
They do in that they are both compensation. Profiting from their name/image/likeness can be via third parties, but it can also be from the schools themselves, marketing their athletes. To the extent that the schools benefit from the athletes attending and competing, there is a decent argument that the athletes need to be compensated like employees, via free-market negotiation. But they kinda already do, in that students can conduct an auction around their financial aid offers.
 

Philip Jeff Frye

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I think the long term implication of the Ivy League losing this lawsuit might be the end of Ivy League sports, certainly football at any rate. There's already a fairly large constituency on Ivy League campuses who ask "Why are we letting in a bunch of men who wouldn't get in otherwise because they can play football?" Add in the very high costs of running a football program and the health issues, and this could be an issue that causes these schools to say, "Forget it, we're done." Ivy League football is basically dying a slow death already. The cadre of alums who support the program by making donations and attending the games gets smaller every year, and they are not being replaced by current students, most of whom don't attend more than one game a year. This has been true for about 20 years now. Honestly, other than the people who played these sports themselves (who can be very vocal, I'll admit), there is very little support for the continued existance Ivy League athletic programs.

Ivy league sports, unlike big time football and basketball, are not profit centers hiding in the middles of charitable institutions. Adding another financial burden on to them is going to cause schools to re-examine their commitment to having real sports programs. Some kind of requirement to provide scholarship money to the rich kids who would not otherwise qualify for financial aid and taking away resources from those that actually need them would be deeply antithetical to a lot of students on campus, in the administration and in the alumni bases of these schools.
 
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BroodsSexton

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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.
The remedy could be that the schools simply cannot agree not to award athletic scholarships.

See how long it takes one of the Ivies to crack.
 

BaseballJones

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The remedy could be that the schools simply cannot agree not to award athletic scholarships.

See how long it takes one of the Ivies to crack.
Could they set it up as: Anyone can freely award athletic scholarships, or NOT award athletic scholarships. Your choice. BUT this conference is only for schools that DON'T, so if you want to, that's great, have at it. You just need to join the Patriot League or go independent or whatever, because THIS conference is only for schools that don't.

And every school voluntarily gets to make that choice.

Would that be legal under any anti-trust law?
 

Humphrey

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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.)
Goes back to the person that mentioned the price-fixing w/regard to aid. If all 8 Ivies offer an athlete the same financial package (adjusted perhaps because the tuition at each institution is not exactly the same amount), then there is a legal problem, I think.
 

Humphrey

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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.
A couple of other considerations to complicate matters
1. The Ivies, because of it being "need based" aid, don't have an 85 (actually its 63 because they are FCS, not BCS) cap. Their football rosters are quite large.
2. In most cases, to the advantage of the athlete, their aid packages aren't dependent on them continuing to play football. The packages only change if the player/family-of-the-player's financial situation changes.
 

BroodsSexton

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Could they set it up as: Anyone can freely award athletic scholarships, or NOT award athletic scholarships. Your choice. BUT this conference is only for schools that DON'T, so if you want to, that's great, have at it. You just need to join the Patriot League or go independent or whatever, because THIS conference is only for schools that don't.

And every school voluntarily gets to make that choice.

Would that be legal under any anti-trust law?
I think you'll have to wait for the result of the current lawsuit to answer that question.
 

BaseballJones

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I think you'll have to wait for the result of the current lawsuit to answer that question.
I don't have any dog in this fight personally, but as someone who works with college athletes, I'm just intensely curious about this. It's incredibly fascinating for me.
 

Doug Beerabelli

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A bit of a tangent here --

Why are athletes unqualified to attend these schools? They might be less qualified in some areas (SAT scores, GPAs) etc, but an athletes special skillset, life experiences, and personality traits may bring as much to the DEI table as that whiz computer kid from India or that LBGTQ+ student activist type. Any of these types can have a huge list of valued extracurriculars. Also, wouldn't Ivies eliminating sports potentially reduce the amount of students from underrepresented groups from otherwise being able to attend these schools. The acceptance rates at these places are exceedingly low, but that's not an accurate reflection of the amount of students who ostensibly would be qualified to attend these schools and succeed.

I mean, sure, let the Ivies get rid of these sports, and this issue goes away. If value to the schools having these sports is solely or mainly measured by crowd counts, then there's a good argument they should be gone from the Ivy League -- except for hockey in some instances. It would anger a lot of alums, piss off a lot of parents who invested in their kids to get them to skill and academic levels so their kid could play Lax at Yale, or hoops at Princeton, but I guess that would eventually fade away over time. What makes an Ivy an Ivy is in the eye of the beholder (or alum), but I expect eliminating sports would significantly alter that definition for a lot of people.

It will be interesting to see how this case turns out, but I agree if the solution is to ban the agreement to not to give athletic scholarships, it probably won't change things much.
 

OCST

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I think the long term implication of the Ivy League losing this lawsuit might be the end of Ivy League sports, certainly football at any rate. There's already a fairly large constituency on Ivy League campuses who ask "Why are we letting in a bunch of men who wouldn't get in otherwise because they can play football?" Add in the very high costs of running a football program and the health issues, and this could be an issue that causes these schools to say, "Forget it, we're done." Ivy League football is basically dying a slow death already. The cadre of alums who support the program by making donations and attending the games gets smaller every year, and they are not being replaced by current students, most of whom don't attend more than one game a year. This has been true for about 20 years now. Honestly, other than the people who played these sports themselves (who can be very vocal, I'll admit), there is very little support for the continued existance Ivy League athletic programs.

Ivy league sports, unlike big time football and basketball, are not profit centers hiding in the middles of charitable institutions. Adding another financial burden on to them is going to cause schools to re-examine their commitment to having real sports programs. Some kind of requirement to provide scholarship money to the rich kids who would not otherwise qualify for financial aid and taking away resources from those that actually need them would be deeply antithetical to a lot of students on campus, in the administration and in the alumni bases of these schools.
St Francis College of. Brooklyn*, known in your ESPN crawl as St Francis (NY), announced this week that it is eliminating all sports:

https://abc7ny.com/amp/sports-st-francis-brooklyn-athletics-eliminates/12987959/

citing rising costs and plateauing enrollment.

*not to be confused with Saint Francis U aka St Francis (PA), although they are in the same conference (NEC).

I live within a stones throw of their basketball gym, which probably seats fewer than my suburban CT high schools.

Their basketball program wasn’t particularly distinguished but had a long history.

Their water polo programs, curiously, were nationally ranked, often the only non-west coast school in the top 20. They have a strong cohort of students from Serbia and Croatia where water polo is a dominant sport, as Mrs O, who finds these 2% body fat broad shouldered 6 footers to her taste, will attest.

Not dropping down to D2 or D3- just no more.

Existing scholarships will be honored.

Being a Catholic institution has its own challenges - the diocese is cutting everywhere- but the pressures are the same for other schools. There will be others.
 

Cellar-Door

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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).
I mean, I have no sympathy for the schools because they're 100% full of shit... all of them have far more than enough money to offer athletic scholarships without any impact to need based scholarships. Even if they started giving out as many scholarships as Alabama it wouldn't cut into the caviar budget for the Board of Overseers meetings at Harvard.
 

BaseballJones

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I mean, I have no sympathy for the schools because they're 100% full of shit... all of them have far more than enough money to offer athletic scholarships without any impact to need based scholarships. Even if they started giving out as many scholarships as Alabama it wouldn't cut into the caviar budget for the Board of Overseers meetings at Harvard.
To that point, here's what I found about Princeton's endowment:

State of play: Princeton's endowment hit $37.7 billion in 2021, or $4.5 million per student. The school's entire annual operating expense that year was $1.86 billion, which is less than 5% of the value of the endowment.

Princeton has about 1,100 varsity athletes. The full cost of Princeton is about $80,000. $80,000 x 1,100 = $88 million.

Now $88 million isn't chump change, but it represents just 2/10 of one percent of their endowment. But even then, that $88 million is cut back because a bunch of those athletes are already slated to receive needs-based scholarships. So maybe (?) Princeton would need to spend an additional $30 million or so on full athletic scholarships. Which really isn't much at all for them.

Other Ivies are similar, of course.
 

BroodsSexton

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It is a complete travesty that the ivies charge tuition. As one alumnus (not at an Ivy but a sister school) told me, “if you didn’t believe in the Illuminati before, consider this: take the smartest, most able students striving to make their lives better, give them an education and status, and then shackle them with debt. You’ll believe.”

That stuck with me.
 

TheRooster

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They arguably charge tuition so that the well-to-do don't get a free ride. Also, you don't see many stories about the 30 year old Yale grad struggling with $150k of debt.
 

CFB_Rules

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Let's assume for the sake of discussion that this suit is victorious. Can a lawyer here help me understand why it wouldn't ALSO apply to D3 schools? They are in an agreement with the NCAA to not hand out athletic scholarships. Literally not only in an agreement with each other, but with the NCAA. I get that they don't have as much money as D1 athletic departments, but Williams College (they're not all like Williams) is a really wealthy school. And besides, why should the amount of money a school has be the determining principle here? If there's antitrust laws preventing schools from agreeing to not give out scholarships, then there's antitrust laws preventing schools from agreeing to not give out scholarships. There's no distinction between whether the school is Princeton and Yale or Williams and Connecticut College.
First, the Ivy isn't the only D1 league to not award scholarships, just the most famous.

https://en.wikipedia.org/wiki/Pioneer_Football_League

But second, the lawsuit argues that the schools are illegally colluding by forming a conference and setting a scholarship limit (in this case, 0). If this were to get overturned, wouldn't any scholarship limit be illegal? Maybe Alabama wants to sign 26 linebackers to a full ride next year.
 

SumnerH

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But second, the lawsuit argues that the schools are illegally colluding by forming a conference and setting a scholarship limit (in this case, 0). If this were to get overturned, wouldn't any scholarship limit be illegal?
That conditional doesn't work. The courts aren't creating a bright-line test, they're balancing various factors: what's reasonable or unreasonable at the conference level isn't necessarily reasonable or unreasonable at the league/division level.

See posts 58 and 55, for instance.
 

CFB_Rules

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That conditional doesn't work. The courts aren't creating a bright-line test, they're balancing various factors: what's reasonable or unreasonable at the conference level isn't necessarily reasonable or unreasonable at the league/division level.

See posts 58 and 55, for instance.
Obviously I’m not a lawyer, but what’s the argument that 8 schools agreeing to do something is collusion, but if 350 schools agree it’s not?
 

SumnerH

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Obviously I’m not a lawyer, but what’s the argument that 8 schools agreeing to do something is collusion, but if 350 schools agree it’s not?
There is no such argument.

The question is whether the collusion is illegal or not, which very much depends on the circumstances: as mentioned many times in this thread, some level of collusion is necessary to run a sports league. Or as another poster explained it:

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.
 

Doug Beerabelli

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Regarding endowments, there can be restrictions on the use of such funds if specified by the donor, and those specs are not illegal or against public policy in some way. Also, the schools are probably taking out a set percentage every year that is considered prudent for the purposes the schools need to rely on that income for annual budget or other purposes, but still maintain the funds value for the future to continue providing that income.

That being said, there’s probably $80 million in change between the cushions of that endowment couch.
 

InstaFace

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Updates on this antitrust lawsuit, Choh vs Brown University et al.

Firstly, anyone with a PACER account would do a service to retrieve any recent developments from the docket, as I can't find any following the universities' MTD on 5/15/2023 and plaintiffs' reply on 6/29/2023, and Justia's docket tracker has not refreshed since early May. Bloomberg Law has a docket tracker for the case, and as best I determine from it,

That reply / motion-to-dimisss by the universities can be read here.

My notes / highlights from the brief:
  • They open with an argument about how purely need-based scholarships provide a campus atmosphere that does not prioritize sports over academics, allowing students the choice of such a place. I can say that personally, that aspect of it ranked very highly on my own list of reasons to attend, so it's not just self-serving BS, it really matters as to campus culture.
  • In an echo of @HowBoutDemSox , they make the point that "Competitors in a sports league must reach agreements to help define the nature of the product they offer" (p9), which basically precludes per-se illegality. In arguing the per-se liability (p18-24), they rely on a bunch of cases that seem pretty persuasive, starting with NASL vs US Soccer Federation (2018) on p18 which states that regulation of league sports is "a textbook example of when the rule of reason applies". If Board of Regents v NCAA (1984) rejected the notion that the NCAA-wide price fixing was per-se illegal, and instead evaluated it under rule-of-reason, surely the Ivy League's equivalent must be likewise.
  • I had forgotten that in Alston, the district court "permitt[ed] individual conference-level compensation rules for student-athletes" (p10). They lean into this argument in p15-17, that a conference defining itself by such compensation rules to level the playing field, as an echo of @BaseballJones 's suggestion in post #62. Indeed, that alternative method of market self-regulation was what caused SCOTUS to rule that less-restrictive alternatives were available than the NCAA's blanket rule (p16): "Nevertheless, the court found the challenged rules unlawful because the plaintiffs had proven that less-restrictive alternatives were available, including allowing “Individual conferences to set or maintain limits on education-related benefits that the NCAA will not be allowed to cap.” NCAA Grant-in-Aid Cap Antitrust Litig., 375 F. Supp. 3d at 1088. Because “no individual conference dominates nearly the entire market, like the NCAA does,” the district court found that such restrictions at the individual conference level “would not have an anticompetitive effect.” ", with SCOTUS noting "individual conferences remain free to reimpose every single enjoined restraint tomorrow—or more restrictive ones still", under the reasoning that individual conferences lack monopolistic market power.
  • Such choice between competitions also extends to choices of NCAA divisions, as they lead off their background (p12) by noting: "The NCAA has three different athletic Divisions—I, II, and III. Division I schools can offer athletic scholarships up to the full cost of attendance.2 Division II schools generally offer only partial athletic scholarships,3 while those in Division III cannot offer athletic scholarships.4" The fact that such a distinction exists unchallenged by the complaint would seem to be a problem for an allegation of anticompetitive activity in the setting of such standards. p21: "See Rock v. NCAA, 928 F. Supp. 2d 1010, 1026 (S.D. Ind. 2013) (Division III rule against athletic scholarships “widen(s) consumer choice” by “distill[ing] amateurism to an even purer form because the student-athletes do not receive free or reduced tuition in exchange for their participation”). By ensuring that this option is available to consumers, the Ivy League Agreement credibly enhances competition. In contrast, preventing the Ivy League from continuing to adhere to its longstanding rule, and so encouraging the University Defendants to mimic other schools’ admissions and financial aid priorities, plausibly narrows consumer choice by taking that option away. "
  • In addressing the rule-of-reason claims, the universities first argue over the definition of the market, as any antitrust suit will do (p25-30). It notes that the plaintiffs' own market discussion concedes that students who are both academically and athletically high-achieving have other schools (their complaint cites "e.g. Stanford, Duke, Notre Dame, Rice, etc") to choose from already, blowing up the idea that only schools under the umbrella of the Ivy League Agreement are a market unto itself. And to define for consideration a market consisting of all high-achieving schools, the complaint should have been specific, rather than fuzzy, about which schools would be included or excluded and why - which it wasn't. And not having done so, no analysis of the universities' market power in that market, of whether they can withhold scholarships without losing students to schools which offer them, can be made.
  • In fairness, in arguing against the market question, in Alston the NCAA was found to be the relevant market for analysis, rejecting the NCAA's proposal that it competes for eyeballs and marketing dollars against pro and other amateur sporting competitions and thus should be thought of as only one market participant in that larger market, because "college athletics" was found to have a brand and labor supply that was meaningfully distinct, limited, and preferred by consumers. A court might well find here that the Ivy League's restrictions should be viewed in the context of a market much smaller than the entire NCAA or that of Division 1, because of the Ivy League's brand power and the limited supply of athletes who can academically gain entry to such schools - a point not really addressed in the universities' brief.
  • I am however not persuaded by the brief's point #3 (p30-34), that "Plaintiffs implausibly assume, without explanation, a single, generic “sports” market consisting of dozens of different sports". The market in which students are making matriculation decisions is the one of where they should attend school, at what price and with what opportunities. Which sport they play may influence their ability to gain admission or their marketing value (particularly if it's football or basketball), but it's not material to the market analysis imo. The brief claims that differences between sports, and schools' offerings of them, are critical, because students would not consider a different sport (besides their own) to be a substitute product relevant in their market decision. Yes, a high-achieving student who is a competitive skier would be choosing between Harvard and Dartmouth and various other NESCAC schools who offer skiing (while the other Ivies don't), but at some cutoff in academic quality / reputation, nobody who is admitted to Harvard or Dartmouth would ever choose one of those schools based on their ski team being a comparable offering. It's the education quality / brand that matters as to school choice, the athletic thing is just a filtering of the subset of students affected by the scholarships rule.
  • More significantly, p35-37 make the argument that there are no anticompetitive effects visible in any relevant market. "The decision by just eight schools to not offer athletic scholarships has no effect on the numerous obvious competitor schools that do offer athletic scholarships—including those schools that offered Plaintiffs full athletic scholarships." Indeed, you can argue (though the brief does not) those other schools gain a competitive benefit by offering something Ivy League schools cannot, and the students presented with such a choice thereby benefit likewise.
  • The brief makes other arguments around a failure to allege an injury-in-fact by the plaintiffs (maybe the complaint offers insufficient details but it doesn't strike me as a stretch that they could be offered), and that one plaintiff's claim is time-barred by the 4-year SOL because the relevant point is the date he matriculated in 2017 vs the suit's filing in 2023. These don't strike me as likely to be decisive, not relative to the ones about market definition and lack of anticompetitive effects.


In sum, I think the lawsuit could have been made stronger than the one that was filed - e.g. by looking at schools' revealed-preference rankings to help define the market, or by doing the actual economic work to attempt to render a proof of anticompetitive effects.

In late June, the plaintiffs filed their response, addressing the above points. I don't have time to break this one down quite as thoroughly, but one thing it states in its opening background caught my eye: "The NCAA requires all conferences other than the Ivy League to provide full scholarships and COA stipends", meaning the rest of the 350 schools in Division 1. Is that true? I can't imagine the NCAA has some specific rule that says "D1 requires full scholarships for all athletes, except for the Ivy League, who are special". But if it is, that's probably a bad fact for the Ivy League.

They argue for per-se illegality, stating (p23) "Defendants are horizontal competitors for the athletic services of AAHA [Academically and Athletically High Achieving] students: without the Agreement, they would compete vigorously against each other for such services of AAHA students". But if that were true, we'd see it in the schools' move to other conferences where they can offer such scholarships, or in athletes' preferences in opting for an education at another peer school not in the Ivy League. We don't, so clearly there are effects in play not accounted for in that categorical statement (e.g. the campus-culture argument or the perceived higher value of an education there).

They also make two other interesting arguments on the core of the matter, which I'll quote without editorial:

(1) p26: the NCAA’s primary procompetitive justification in Alston was that its rules preventing Division I institutions from compensating collegiate athletes (above the COA) “could play some role in product differentiation with professional sports and thus help sustain consumer demand for college athletics.” Alston, 141 S. Ct. at 2153 (emphasis added). But the Defendants here are silent on the alleged effect of the Agreement on consumer demand for Ivy League sports. Unlike Alston, the Defendants here do not even attempt to argue that their conspiracy increases demand for viewing Ivy League sports or even for attending Ivy League schools—they merely argue that it expands student choice in the abstract. Mot. at 15-16. But merely offering something to consumers, where there is no evidence they actually prefer it for that reason, is not a valid procompetitive justification. Defendants do not even assert what they would need to show, namely that more students choose the Ivies because the Ivies collude to prohibit scholarships, i.e., that the Agreement is output enhancing.

(2) p27: Rock v. NCAA involved NCAA’s Division III prohibition of athletic scholarships and concluded that the rule could be justified by “the revered tradition of amateurism in college sports.” 928 F. Supp. 2d 1010, 1026 (S.D. Ind. March 1, 2013) (quotation omitted). Rock would come out differently after Alston, because the Supreme Court has now affirmed the district court’s rejection of the “amateurism” defense upon which Rock relied:
While the NCAA asks us to defer to its conception of amateurism, the district court​
found that the NCAA had not adopted any consistent definition. Instead, the court​
found, the NCAA’s rules and restrictions on compensation have shifted markedly​
over time. The court found, too, that the NCAA adopted these restrictions without​
any reference to “considerations of consumer demand,” and that some were “not​
necessary to preserve consumer demand.”​


On July 27th, the university defendants filed their reply to the opposition brief, in support of their motion to dismiss. I can't view it, but it's docket #164 and if anyone has a Bloomberg Law account or is willing to pull it off PACER, we can look at it. I don't see any updates on the case since a procedural order on 8/30/2023.


I did come across this legal analysis from Brooklyn Law School, and a U Cincinnati Law Review article on the topic. Both focus on the market-definition question, as the topic over which the lawsuit will be decided.


In a parallel action last October, the College Basketball Players Association, an advocacy group, has filed an NLRB labor action against the Ivy League (at the invitation of the NLRB itself), to overturn the whole notion of "amateurism" in college sport and its justification for not paying athletes. The NYT explored this issue in a December editorial.
 

DennyDoyle'sBoil

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Firstly, anyone with a PACER account would do a service to retrieve any recent developments from the docket, as I can't find any following the universities' MTD on 5/15/2023 and plaintiffs' reply on 6/29/2023, and Justia's docket tracker has not refreshed since early May. Bloomberg Law has a docket tracker for the case, and as best I determine from it,

That reply / motion-to-dimisss by the universities can be read here.
You're confusing terminology just a bit. Generally, there is a motion filed by the movant, with a memorandum in support. That's the document you linked above, which was filed by the Universities on May 15, 2023. Then the non-movant files a "response," sometimes called an opposition or a memorandum in opposition. Plaintiff did so in the case on 6/29/23. A "reply" is the third brief -- filed by the movant to respond to the non-movant's opposition. They usually have pretty short page limits. Waxman filed the Universities' reply on 7/27/23. I took a quick look -- seems pretty good, but I didn't dig deep. I think it mostly reiterates the arguments you've summarized.

Shortly after the University filed its reply, plaintiff filed a request to file supplemental authority -- a california district court case decided in July that they say is relevant. The court allowed it, and Waxman filed a short response saying it wasn't material. I didn't read any of that closely.

The motion is now fully briefed and pending. It doesn't look as though anything else major has happened in the case and I can't see anything on the docket indicating that a hearing has been set on the motion. The court did hold a scheduling conference, and there is some back and forth about deadlines, experts, and confidentiality orders.