Federal decision on paying college athletes could bring changes for athletes, UB sports law expert says

Nellie Drew in front of a bookcase.

The NCAA is not above antitrust laws, says UB's Nellie Drew.

Release Date: October 1, 2015

“This strict enjoiner is unprecedented in NCAA litigation history. It remains to be seen whether the Supreme Court will agree.”
Nellie Drew, sports law expert
University at Buffalo

BUFFALO, N.Y. – The importance of a federal appeals court ruling that NCAA restrictions against paying college athletes violates anti-trust laws “cannot be overstated,” according to a University at Buffalo sports law expert.

“The 9th Circuit issued a warning that will reverberate through the continuing dialogue about the role of the NCAA in regulating amateur athletics,” says Nellie Drew, who teaches sports law courses in UB’s Law School and has been quoted extensively both locally and nationally on sports law issues including amateur status of college athletes and domestic violence in the NFL.

Drew cited what she said was a crucial and influential sentence in the appeals court’s written decision:

“The NCAA is not above the antitrust laws,” the judges from the 9th U.S. Circuit Court of Appeals wrote in Wednesday’s ruling. “And courts cannot and must not shy away from requiring the NCAA to play by the Sherman Act’s rules.”

“This strict enjoiner is unprecedented in NCAA litigation history,” says Drew. “It remains to be seen whether the Supreme Court will agree.”

The Appeals Court decision comes from a 2009 lawsuit filed by former UCLA basketball star Ed O’Bannon, who sued to recover revenue received by the NCAA, and the use of college athletes’ names, images and likenesses.

In affirming in part the lower court’s decision, the appellate court flatly rejected the NCAA’s assertion that its rules governing amateurism are valid as a matter of law, according to Drew.

“The NCAA’s argument was based in large part upon dicta from a Supreme Court case, Board of Regents v. Univ. of Oklahoma, dating back to 1984,” Drew says. “The 9th Circuit distinguished the O’Bannon case on the grounds that the Supreme Court case simply set the appropriate standard of review for NCAA regulations for federal anti-trust purposes.

“It did not give the NCAA carte blanche to ignore anti-trust law when implementing amateurism regulations – or anything else.”

While the 9th Circuit agreed with a lower court that restricting compensation would have a “significant anticompetitive effect on the college education market,” the judges recognized the same purpose could be achieved through a less-restrictive alternative: allowing schools to provide scholar-athletes with grants in the amount of the full cost of attendance.

“Today,” says Drew, “an additional development is expected from the same circuit court concerning another case challenging NCAA restrictions on student athlete compensation.”

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