Brief of Amicus Curiae by Open Markets, Change To Win, NELP, and Economics and Law Professors, in Support of Plaintiffs-Appellants in Shawne Alston, et al. v. NCAA, et al.
October 30, 2019
On October 30, 2009, the Open Markets Institute, Change To Win, the National Employment Law Project, and Professors Marshall Steinbaum, Sanjukta Paul, and Veena Dubal filed an amici curiae brief supporting current and former college basketball and football players in their antitrust suit against the National Collegiate Athletic Association (NCAA). They allege that the NCAA has colluded to restrain intercollegiate competition for their athletic services and deprived them of the right to earn a competitive income for their hard work and talent.
In our brief, we argue that the Sherman Act protects sellers of goods and services, including workers, from buyers’ restraints of trade. In applying the rule of reason, the district court subverted the Sherman Act’s protection of sellers of goods and services and disregarded Supreme Court guidance against turning the rule of reason into a general social cost-benefit analysis. While the district court correctly found the NCAA liable under the Sherman Act, it should have only evaluated the challenged restraint’s harms and benefits to the plaintiffs—and not considered its effects on other groups. Because it found that the challenged restraints had no benefit to college athletes, the court should have enjoined all NCAA compensation restraints and not looked to find a less restrictive alternative under the rule of reason.