As the nation turns its attention to college basketball this weekend, fans will be watching what’s happening on the court. Lawyers and other interested parties will continue to track what’s happening off of it.
The NCAA’s business model is under attack from all sides, with multiple cases challenging the organization’s refusal to grant athletes employee status. And last week, two athletes took specific aim at one of college sports’ most recognizable and prestigious conferences.
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Brown University basketball players Grace Kirk, who currently plays for the women’s basketball team, and Tamenang Choh, who played on the men’s basketball team until 2022, sued their university and the seven other Ivy League schools over their policy against offering athletic scholarships, alleging that it amounts to illegal price-fixing in violation of federal antitrust law.
It’s the newest intriguing challenge to the status quo. Here’s what you need to know.
What the case alleges
The lawsuit was filed in federal court in Connecticut by lawyers representing Kirk and Choh. The plaintiffs are seeking class-action certification on behalf of current and former Ivy League athletes dating back to March 7, 2019.
At issue is the fact that Ivy League athletes aren’t reimbursed in the form of athletic scholarships the way their peers at other schools are. The suit alleges that the defendant schools are not acting with purely altruistic motives, instead “seeking to maximize revenue (and prestige).” It states that there is “no procompetitive justification” for the Ivy League schools agreeing to limit compensation, whether that’s direct payment or reimbursement of tuition. In effect, Ivy League athletes are paying far more than their peers for the opportunity to compete in college sports and receiving far less for the services they provide.
“We hope that this lawsuit will bring Ivy League athletics into the 21st century by subjecting these universities’ treatment of Ivy League athletes to the antitrust laws, just as the courts have applied such laws to all other NCAA Division I athletic programs,” said Berger Montague’s Eric Cramer, one of the lawyers for the plaintiffs, in a statement.
“The Ivy League agreement is particularly egregious given the huge amounts of money these schools have in their endowments,” added Ted Normand, co-counsel for the proposed class and a founding partner of Freedman Normand Friedland LLP. “Where hundreds of Division I schools with much fewer resources compete without limits on athletic scholarships and compensation or reimbursement, the Ivy League schools have no excuse for not doing the same.”
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Ivy League executive director Robin Harris said in a statement that students and their families have “a wide variety of options” available to them as they make their choices for college, each with “its own distinct features and benefits.”
“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,” Harris 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.”
Why it matters
The legal environment for the NCAA and its member schools has become shakier than ever since the U.S. Supreme Court ruled unanimously against the organization in NCAA v. Alston back in June 2021. That ruling, although narrow and tied to caps on academic-related benefits, opened the door for future challenges to the broader collegiate model. Justice Brett Kavanaugh essentially asked for them in his concurring opinion.
The athletes’ complaint quotes directly from Kavanaugh’s concurrence: “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.” The suit follows with its assertion that what Kavanaugh described is what the Ivy League’s schools are doing.
The Ivy League has long been the only Division I conference operating this way, and it has done so even while other schools with prestigious academic traditions (Duke, Stanford, etc.) participate in the awarding and paying of athletic scholarships.
The complaint cites a number of recent cases challenging the collegiate model as well as the NCAA’s own interim NIL policy and recommendations from the D-I Transformation Committee that give additional benefits to athletes, from increased participation in governance to mental health support and post-playing career preparation. The National Labor Relations Board is proceeding with an unfair labor practice charge filed against USC, the Pac-12 and the NCAA. There’s also a new Congress in session, with certain lawmakers particularly enthused about taking on the NCAA. The House Committee on Energy and Commerce will hold a hearing to discuss the name, image and likeness (NIL) rights of college athletes on March 29 in Washington, D.C.
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“There is thus a national trend toward recognizing the rights of college athletes to realize their market values in terms of educational benefits and compensation for their athletic services,” the complaint states. “The University Defendants continue to adhere to an anachronistic, unfair and illegal horizontal agreement that severely restricts competition for Ivy League athletes with respect to the most foundational element of competition: Price.”
The issues in this case and the arguments in it tie back to a lawsuit filed last year accusing more than a dozen wealthy universities — including six Ivy League schools — of collusion and price-fixing by deliberately restricting students’ financial aid. Section 568 of the Improving America’s Schools Act of 1994 has allowed schools with need-blind admissions policies to be exempt from antitrust law, and the exemption has been renewed annually for 28 years but was not renewed last October. The lawsuit, which includes some of the same lawyers as the subsequently filed Ivy League lawsuit, argues that a collective of wealthy schools that use a need-blind admissions process (called the 568 Presidents Group) does not operate on a truly need-blind basis. Last summer, a judge rejected motions to dismiss from the defendants in the Section 568 case; that case will proceed to the discovery phase.
Some of the arguments that lawyers are making in the Ivy League case hinge on the arguments made against the 568 Presidents Group (multiple, but not all, Ivy League schools belong to the group). If the Ivy League is not operating on a true need-blind basis, as that suit alleges, then shouldn’t those schools be complying with federal antitrust law? And if so, why should they be allowed to agree amongst themselves not to pay athletic scholarships?
Expect the lawyers for the defendants to file a motion to dismiss the suit in the coming weeks, and lawyers for the plaintiffs to subsequently respond. This is likely headed to a hearing in front of a judge.
(Photo: Rachel O’Driscoll / Getty Images)
