On behalf of 65 professors, Prof. Michael Carrier filed a Brief of Amici Curiae 65 Professors of Law, Business, Economics, and Sports Management that supported the student-athletes in NCAA v. Alston. The brief has three main points.

First, the Petitioners (the NCAA and athletics conferences) seek to unwind a century of antitrust law by obtaining immunity for anticompetitive conduct. The NCAA, alone among antitrust defendants, seeks to choose values of its own liking — not price, quality or output — and use them to excuse conduct that would otherwise be illegal. The NCAA also desires a unique authority to preserve a product in a particular form, even one at odds with consumer preference expressed through free markets.

Second, the Petitioners do not gain support from the Supreme Court’s 1984 decision in NCAA v. Board of Regents. That decision, which ruled against the NCAA, discussed amateurism only in dicta, and was issued at a time in the 1980s when per se antitrust rules were being repealed and the Supreme Court was stressing the need for empirical caution. Finally, the lower court cases cited by the NCAA draw the same distinction between procompetitive and anticompetitive restraints that the courts drew in this case.

Third, the district court, affirmed by the Ninth Circuit, offered an example of hornbook antitrust law in applying the four-step burden-shifting analysis courts use under the Rule of Reason. At the first stage, the plaintiffs demonstrated “severe” anticompetitive effects, as “the challenged restraints suppress competition and fix the price of student-athletes’ services.”

Petitioners’ showing at the second stage was also very weak. They largely rested on their definition of “amateurism” without showing benefits to price, quality, or output. And they succeeded at all only because the courts worked to help them, looking for evidence within their presentation on “amateurism” that could be understood in legally cognizable terms of consumer demand.

At the third stage, the Petitioners’ claim that the court applied a “least restrictive alternative” requirement bears no support in the caselaw. Based on a review of the 897 Rule-of-Reason cases in the modern era, we explain that the “less restrictive alternative” formulation used by the courts was the most demanding standard imposed on plaintiffs by any court in the past four decades.

Finally, even if plaintiffs had not shown a competitively preferred alternative, the case would have proceeded to the fourth stage — balancing — and under the lopsided evidence of net competitive injury, the plaintiffs most likely would have won.

The brief concludes that, because the Petitioners advance no other basis for reversal, and the law was otherwise applied properly below, the decision of the Ninth Circuit should be affirmed.