NFHS Lines Up Behind NCAA in O’Bannon Appeal, Files Amicus Brief in Support

The National Federation of State High School Associations (NFHS) has filed an amicus brief supporting the NCAA in its petition to the Supreme Court appealing the Ninth Circuit’s decision in the case of O’Bannon v. NCAA. In its brief, the NFHS extolled the virtues of amateurism, and warned that “[a]llowing college athletes to receive compensation in any form not tied to their college education not only would threaten the unique nature of college athletics, and thus much of its appeal, but also would diminish the ideal of amateurism that has endured for so many generations.” It went on to state that directly linking athletics and education promotes pride of school, consumer interest, and educational benefits for the athletes themselves.

The appeal comes after the Ninth Circuit affirmed that certain NCAA amateurism rules violate federal antitrust law while at the same time holding that member schools need only provide up to the cost of attendance to their student athletes, scrapping an injunction devised at the district court level requiring member schools to pay Division I football and men’s basketball players up to $5,000 a year for name, image and likeness rights. Most significantly, the decision affirmed the reasoning at the district court level that the NCAA has been violating Section 1 of the Sherman Act for years, and that NCAA amateurism rules unlawfully prevent member schools and conferences from competing to compensate Division I men’s basketball and football players.

Given the nature of the decision, technically ruling that the NCAA is committing antitrust violations while also limiting compensation to the cost of attendance, one can see why either side would want to appeal. However, there are also risks for each in appealing to the Supreme Court. In the NCAA’s case, they no doubt want to avoid the fact that their rules have been officially labeled as antitrust violations coming back to haunt them in the future, but at the same time if the Supreme Court views the case solely through the antitrust lens they will most likely lose. For O’Bannon, appealing brings the risk that the Supreme Court could overrule the Ninth Circuit, concluding that the NCAA’s amateurism rules are legal after all, destroying any chance athletes in the future would have a chance of winning a lawsuit based on that argument.

Either way, it is clear that if the Supreme Court chooses to hear the case, the decision will have enormous consequences for the NCAA and college athletes.

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