Fifteen law professors have filed an amicus brief with the 9th U.S. Circuit Court of Appeals in support of the NCAA in its bid to overturn a lower court’s ruling in O’Bannon. The professors, many of which are expert in antitrust law, claimed that District Judge Claudia Wilkin erred when she used the “less-restrictive alternative prong” of the relevant analysis in determining that the NCAA was in violation of antitrust law.
Besides the professors, several media organizations (CBS, ABC, Fox, NBC, and TBS), the American Council on Education, the Association of Governing Boards of Universities and Colleges, and the National Association of Independent Colleges and Universities also filed briefs in support of the NCAA.
But it was the professors’ brief, which suggested the lower court had “overstepped its bounds,” that was the most provocative. If it were allowed to let stands, it “would substantially expand the power of the federal courts to alter organizational rules that serve important social and academic interests,” they wrote. “This approach expands the ‘less restrictive alternative prong’ of the antitrust rule of reason well beyond any appropriate boundaries and would install the judiciary as a regulatory agency for collegiate athletics.”
Furthermore, it might leave other organizations vulnerable to a lawsuit.
“For example, a court could easily follow the reasoning below to require compensation for Little League baseball players at a level deemed ‘fair’ by a district judge,” the professors wrote. “Similarly, a kennel club could be required to alter its breed standard if a breeder claims to have been excluded because their dogs are an inch or two shorter than the adopted standard. … Courts would have free rein to rewrite any rule adopted by an organization plausibly found to have restrained a relevant market if they can identify modest changes that may (or may not) be fairer.”
The following professors signed the brief:
Thomas C. Arthur, L. Q. C. Lamar Professor of Law, Emory University School of Law
Amitai Aviram, Professor of Law, University of Illinois College of Law
Edward D. Cavanagh, Professor of Law, St. John’s University School of Law
Jorge L. Contreras, Associate Professor of Law, University of Utah, S.J. Quinney College of Law
Daniel Crane, Associate Dean for Faculty and Research and Frederick
Paul Furth, Sr. Professor of Law, University of Michigan Law School
Susan Beth Farmer, McQuaide Blasko Faculty Scholar & Professor of Law and International Affairs, Pennsylvania State University, Dickinson School of Law
Herbert Hovenkamp, Ben and Dorothy Willie Chair, University of Iowa College of Law
Keith N. Hylton, William Fairfield Warren Distinguished & Professor of Law, Boston University School of Law
Michael S. Jacobs, Distinguished Research Professor of Law, DePaul University College of Law
Alan J. Meese, Ball Professor of Law and Cabell Research Professor, College of William & Mary Law School
Salil K. Mehra, Professor of Law, Temple University Beasley School of Law
Gary R. Roberts, Dean Emeritus and Gerald L. Bepko Professor of Law, Indiana University Robert H. McKinney School of Law
William H. Page, Professor & Marshall M. Criser Eminent Scholar in Electronic Communications and Adminstative Law, University of Florida Levin College of Law
D. Daniel Sokol, Professor of Law, University of Florida Levin College of Law
Alexander Volokh, Associate Professor of Law, Emory University School of Law
