I. Introduction
Notes: Our Excel Case Chart explains many cases discussed in this Federal Courts Tab. The Chart contains the case name, facts, issue(s) presented, the legal rule established in the case, a brief analysis, the case holding, an explanation of why each case is important today, a link to the case opinion, and a link to a summary of the case. To access the case opinions and summaries, click on the hyperlink in the relevant Excel cell, and a box will pop up. Then, click on the hyperlink in the box to access the primary source document(s).
Our Resources Tab contains key pleadings, motions, briefs, rulings/orders, and settlement documents from the following cases: (1) White v NCAA (2006 - 2008; antitrust/full cost of attendance), (2) O’Bannon v NCAA (2009 - 2015; antitrust/name, image, and likeness); Keller v NCAA (2009 - 2015; publicity rights/EA Sports video games); Alston v. NCAA (2014 - 2021; antitrust/full cost of attendance); Jenkins v NCAA (2014 - 2021; antitrust/all NCAA compensation limits/education benefits); In Re: National Collegiate Athletic Association Athletic Grant-in-Aid Cap Antitrust Litigation (2014 - 2021; FCOA/antitrust/all NCAA compensation limits/education benefits; consolidation of Alston and Jenkins through Multidistrict Litigation Panel Order); Johnson v NCAA (2019 [pending]; employee status/benefits under Fair Labor Standards Act); House v NCAA (June 2020 [pending]; antitrust/name, image, and likeness); Hubbard v NCAA (April 4, 2023 [pending]; antitrust/”back” education benefits per Alston); Bewley v NCAA (November 1, 2023 [pending]; state statutory and federal antitrust/pay for play eligibility); Fontenot v NCAA (November 20, 2023 [pending]; antitrust/all NCAA compensation limits); Schroeder v. University of Oregon (December 1, 2023 [pending]; Title IX); Carter v NCAA (December 7, 2023 [pending]; antitrust/all NCAA compensation limits); State of Ohio et. al., v NCAA (December 7, 2023 [pending]; antitrust/transfer rules); Atlantic Coast Conference v. Board of Trustees of Florida State University (December 21, 2023 [pending in NC state court]; grant of rights; breach of contract); Florida State University Board of Trustees v. Atlantic Coast Conference (December 22, 2023; pending in FL state court; state-based antitrust and breach of contract); State of Tennessee et al. v. NCAA (January 31, 2024; federal antitrust suit challenging NCAA NIL rules and policies)
This Federal Courts Tab discusses the role of federal courts in shaping the legal and regulatory environment in college sports.
Our discussion of federal courts complements other pieces of the NCAA and Power 5’s multi-faceted strategy to eliminate external regulatory threats.
This Tab, the Case Chart, and the litigation materials in the Resources Tab are not intended to be a grand synthesis of the role of federal courts in college sports.
Outside the scope of our discussion are consequential state cases involving workers’ compensation, concussion, and conference realignment.
Similarly, important cases filed by the NCAA, such as Murphy v NCAA (to prevent the state of New Jersey from enacting a state law that permitted betting on college sports), or cases in which the NCAA has opportunistically settled to acquire intellectual property/trademark rights (“March Madness”) or market share in basketball (men’s NIT), are outside the scope of this analysis.
Instead, we focus on 21st-century federal cases that have influenced (or may influence) college sports’ regulatory and financial structures and, potentially, the legal relationship between athlete-laborers and institutional beneficiaries.
The NCAA’s Litigation Chessboard
The NCAA and Power 5 have created the public perception that federal litigation is an imminent threat to amateur ideals and the very existence of college sports.
However, the NCAA and Power 5’s fear-mongering deflects attention from their use of federal litigation as a weapon to achieve legal immunities that preserve and protect their amateurism-based regulatory and business models.
The NCAA and Power 5 have the best lawyers that athletes’ money can buy. Those lawyers have engineered a long-term, sophisticated, coordinated legal game plan to protect NCAA and Power 5 interests through favorable rulings and protective settlements.
The NCAA and Power 5 use win-at-all-costs litigation tactics to wear down their opponents financially and emotionally.
They are concerned only with preserving their regulatory power and revenue streams.
In a July 16, 2019, article in Inside Higher Ed on the rapid escalation in the NCAA’s legal expenses, former NCAA Chief Financial Officer Kathleen McNeely said:
“We really can’t lose these suits. This is fundamentally what college sports are about. And so that means we’re hiring really good attorneys with national reputations and who have argued in front of the Supreme Court so that we can win.”
McNeely referred to the NCAA’s appellate attorney, Seth Waxman, who was the former Solicitor General under President Clinton. As Solicitor General, Waxman argued dozens of cases in the U.S. Supreme Court. He is a preeminent appellate litigator.
Waxman works for WilmerHale, among America’s most prestigious and politically connected law firms. He argued on behalf of the NCAA in the Alston case, both in the Ninth Circuit and the U.S. Supreme Court.
For many years, the NCAA has had one of the top antitrust firms in the country—Skadden Arps—on the payroll to manage the NCAA’s long-term antitrust strategy.
The NCAA has also employed Beth Wilkinson, one of the best trial lawyers in D.C., and her firm, Wilkinson Stekloff.
These attorneys are the best in the business.
The NCAA carefully decides which cases to settle and which to press. For example, some thought it odd that the NCAA appealed Alston to the Ninth Circuit and the U.S. Supreme Court.
Why would the NCAA appeal a decision that merely permitted (but did not require) them to offer modest education-related benefits that posed no financial risk to their business model?
After all, the NCAA and Power 5 are education nonprofits.
To understand why, you must see litigation the way they do. Despite its obvious downsides, litigation always provides the NCAA and Power 5 an opportunity to increase their control over the regulation of college sports.
Alston provided the NCAA and Power 5 a historic, realistic, and risk-free shot at absolute, judicially created antitrust immunity from the US Supreme Court (discussed in Section IV)
If the NCAA and Power 5 had been successful in Alston, the athletes’ rights movement would be on life support.
Rather than conform their behavior to the requirements of well-settled federal free competition and labor laws, they seek to fundamentally alter the legal and regulatory landscape to their liking.
Besieging and Frivolous Litigation?
While the NCAA and Power 5 complain incessantly about “besieging” and “frivolous” litigation, athletes have made only marginal gains through litigation. This is partly because the federal judiciary has historically deferred to the NCAA’s conceptualization of amateurism and the NCAA’s historical role as the sole regulator of college sports.
The NCAA and Power 5 likewise overstate the impact of litigation costs.
The NCAA pays for nearly all litigation costs, including Power 5 costs, from March Madness revenue. The NCAA does not receive any money from Power 5 football. As discussed in Section III, this is the result of the 1984 Board of Regents decision, which allowed the Power 5 to keep all football revenue to themselves.
Power 5 football, at least so far, has gotten a free ride in the litigation game.
In O’Bannon (2009 - 2016) and Alston (2014 - 2021), legal fees and costs (for all parties) totaled approximately $200 million. In both cases, the court ordered the NCAA to pay the athletes’ legal fees and expenses—approximately $80 million.
Division I men’s basketball players generate the revenue that underwrites nearly all of these costs. In Alston, the Power 5 conference defendants split the cost of the athletes’ legal fees, but that is the exception.
The NCAA paid an additional $240 million to settle portions of O’Bannon and Alston without any contributions from the Power 5.
After nearly half a billion dollars in legal fees and settlements in the two cases, the NCAA/Power 5 money machine continued unfazed, with its amateurism-based compensation limits slightly modified but still intact.
More recent pending class-action antitrust cases (discussed in Section III), such as House (2020; NIL/broadcast media “BNIL”), Hubbard (2023; “back” Alston education benefits), and Carter (2023; market value for athlete services), have renewed concerns that the NCAA and Power 5 are in existential peril.
Damages in House alone may exceed $1 billion.
Will House, Hubbard, and Carter be final daggers in the heart of the NCAA’s amateurism-based business model?
No one knows for sure, but if history is our guide, the NCAA will survive, and the fundamental relationship between athletes and institutions is unlikely to change.
The NCAA’s litigation war chest is replenished yearly from its billion-dollar March Madness payout. The NCAA’s current contract with CBS and Turner extends into 2032.
The March Madness gravy train guarantees the perpetuation of the NCAA administrative state. It also allows the NCAA to manage its litigation chessboard with little consequence—at least so far— to its bottom line.
Despite unanticipated disruptions to its revenue streams, such as COVID and recent economic fluctuations, the NCAA administrative state hasn’t missed a beat.
Salaries for NCAA executives have continued to escalate. Many high-level NCAA bureaucrats make mid-to-high six figures, and a growing number are at or above the million-dollar mark.
Throughout the wave of antitrust litigation in the 21st century, the NCAA’s financial auditors have consistently maintained that pending litigation does not threaten the NCAA's solvency.
Moreover, in 2022, the NCAA set up a captive insurance company named “1910 Collective” as a risk management device. The Collective is essentially a self-insurance plan.
The Collective was initially funded with $98 million and issued D&O and event cancellation/loss policies in 2022. In 2023, the NCAA added another $100 million. The NCAA Board of Governors could choose to use the fund for other purposes, including litigation costs.
In short, like many other “too big to fail,” multi-billion-dollar companies, the NCAA and Power 5 have come to view litigation as a cost of doing business.
Federal Litigation as an Agent for Regulatory and Policy Changes in College Sports
Litigation is rarely an efficient way to influence regulation or policy. While injunctive relief like that provided in O’Bannon and Alston can serve a regulatory purpose, its scope is limited to the four corners of the lawsuit.
What ultimately becomes relevant (and redressable) in a lawsuit is influenced by the applicable law, the evidence presented, how the parties frame the case, and how the court crafts remedies.
As discussed in Section IV, the Supreme Court appeal in Alston illustrates the limitations of federal antitrust law as a regulatory or policy tool.
Ordinarily, regulatory and policy issues requiring broad-based input from multiple stakeholders, such as athletes’ rights, could be addressed by voluntary rule changes or congressional action after thoughtful debate.
However, the NCAA and Power 5 have refused to change their rules for the benefit of athletes voluntarily, and they have hijacked the congressional debate and manipulated it through the most influential lobbyists in Washington.
These dysfunctional dynamics leave federal litigation as a primary vehicle to force the NCAA and Power 5 to change.
Another limitation of litigation to force change in college sports is that the law—by design—moves very slowly. For a system of laws to have credibility, it must be stable and certain. American law operates under the principle of stare decisis, which literally means “to abide by decided cases.”
While our precedent-based system has many benefits, it also has a substantial downside. Once a court establishes a rule of law as a binding precedent, it is very difficult to change.
Principles of precedent have had significant consequences in the California antitrust cases, notably the transition from O’Bannon to Alston, both in the Ninth Circuit.
As discussed in Section IV, the Ninth Circuit’s decision in O’Bannon (challenging the NCAA’s compensation limits on name, image, and likeness) provided the NCAA and Power 5 a partial amateurism-based antitrust immunity from any claims for athlete compensation unrelated to education.
Alston, which was filed before the Ninth Circuit’s decision in O’Bannon, challenged all NCAA amateurism-based compensation limits. It was a frontal attack on the entire amateur model and, if successful, would have permitted athletes to seek their actual market value.
However, the Ninth Circuit’s O’Bannon limitation became a binding precedent early in the Alston suit and limited Ninth Circuit judges’ and athletes’ potential remedies.
The timing of the Ninth Circuit O’Bannon decision neutralized Alston's impact and influenced the athletes’ strategy in the appeals process.
When Alston reached the Supreme Court, the athletes elected not to challenge O’Bannon’s amateurism/education-based antitrust immunity. Instead, they preserved a modest injunction for education benefits that conformed to O’Bannon.
O’Bannon’s influence in Alston is just one example of the interconnection among and between college sports cases. What happened in O’Bannon and Alston will shape House, Hubbard, and Carter.
The materials in this Tab aim to bring seemingly unrelated cases and themes into a holistic framework that informs what may happen next in federal litigation.
Roadmap
Our discussion of the role of federal courts is divided into the following sections:
The impact of Board of Regents.
The legal firewall the NCAA and Power 5 have built through federal litigation.
The factors influencing the federal judiciary’s deference to amateurism.
Conclusion.
