By Professor Robert J. Romano, JD, LLM, St. John’s University, Senior Writer
On March 7, 2023, Tamenang Choh, a former Brown University basketball player, together with current player Grace Kirk, filed a lawsuit in the U. S. District Court for the District of Connecticut claiming that the eight schools that make up the Ivy League engage in a conspiracy in violation of federal antitrust laws since they have chosen not to provide athletic scholarships to their Division I student-athletes.[1] Their lawsuit argued that restrictions imposed by the NCAA and its member intuitions, which the Ivy League is a part of, regarding college athletes’ compensation have been deemed unfair and anticompetitive to those same athletes by various federal courts over the last fifteen years, while also highlighting the increased commercialization of the Ivy League over the past decades and the fact that its eight Ivy institutions have, collectively, over $170 billion in endowments.
In response, on May 15, 2023, the Ivy League schools, together with the League itself, filed a Motion to Dismiss any and all claims by the two named plaintiffs putting forth this simple proposition: it was their choice to attend an Ivy, they could have elected to attend any other elite non-Ivy League institution that would have offered them a student-athlete scholarship.
To bolster their position, the Ivy League and its schools also argued through its motion that “common sense and precedent confirm that a single athletic conference in the NCAA is not an antitrust market,”[2] and cites the district court’s ruling in Alston that permitted individual conference-level compensation rules for student-athletes as determinative regarding this issue. The League commented that the “plaintiffs’ anticompetitive claims are conclusory and speculative allegations of direct anticompetitive effects cannot save their claim,”[3] before continuing with the position that “The only direct effect they [the plaintiffs] allege is that the Ivy League does not offer athletic scholarships, and that this allegation is facially insufficient because it does not suggest market-wide harm (or any harm) to competition. Other schools in other conferences – including many academically selective schools that compete in Division I – offer athletic scholarships and the undergraduate athletic experience that comes along with those priorities. Student-athletes who prefer that option are free to choose it.”[4]
This past October, Connecticut Federal Judge Alvin W. Thompson granted the defendants’ Motion to Dismiss finding that “The deficiencies in the Complaint that are the basis for granting the motion to dismiss are substantive in nature, and nothing in the plaintiff’s papers suggests that they could amend the Complaint to overcome these substantive deficiencies.”[5]
The decision was based on Judge Thompson’s belief that the plaintiff’s lawsuit failed to adequately identify a relevant market for antitrust scrutiny, writing in his opinion that “The Complaint does not allege a per se antitrust violation, nor does it allege a restraint that violates the rule of reason. The Complaint fails to allege a restraint that violates the rule of reason because it does not allege any properly defined market, and consequently, it also fails to allege market-wide anticompetitive effects.”[6] Judge Thompson additionally, in echoing the defendants’ argument, stressed this point by highlighting the fact that while Ivy League schools offer “athletically and academically high-achieving students” the chance to graduate from an elite college and play Division I sports without providing athletic scholarships, other elite colleges and universities, i.e., Duke, Georgetown, Michigan, Notre Dame, Rice, Stanford, UNC Chapel Hill, Vanderbilt and Virginia, that are just as selective,” [7] in fact do and that any student-athlete is free to choose one of these schools as an option over any Ivy League institution.”
Judge Thompson went on to comment that although since 1954 when the eight schools that make up the Ivy League signed the “Ivy League Agreement” wherein agreeing amongst themselves that “The members of the Group reaffirm their prohibition of athletic scholarships. Athletes shall be admitted as students and shall be awarded financial aid only on the basis of economic need,”[8] they do, however, provide substantial aid—sometimes full rides—to their student-athletes.
It should be noted that Judge Thompson was appointed U. S. District Judge for the District of Connecticut on October 11, 1994, after receiving his Bachelor of Arts degree from Princeton University in 1975 and a Juris Doctor from Yale Law School in 1978. It is doubtful, however, that he played on a sport team for either of these two prestigious Ivy League institutions.
[1] Case 3:23-cv-00305 Document 1 Filed 03/07/2023.
[2] Case 3:23-cv-00305 Document filed 05/15/2023.
[3] Id.
[4] Id.
[5] 2024 U.S. Dist. LEXIS 185260
[6] 2024 U.S. Dist. LEXIS 185260
[7] Id.
[8] Ivy Manual at p. 39 (quoting the 1954 Ivey League Agreement).
