Ex-Footballers Sacked On First Play From Scrimmage In Antitrust Lawsuit Against The NCAA

Between talks of changing the BCS playoff structure, student athletes trading jerseys for tattoos (see Three Point Shot, infra), and convicted sex offenders scaring away star recruits, the harsh glare of the national spotlight seems to almost always be on the National Collegiate Athletic Association ("NCAA"), its member institutions and its top student-athletes. In 2011, far away from the national glare, some lesser known, ex-Division I football players had their day in court against the NCAA regarding certain alleged antitrust violations, but were sacked on their first play from scrimmage.

In March 2011, former Rice University defensive back Joseph Agnew and North Carolina A&T kicker Patrick Courtney filed a federal antitrust action against the NCAA alleging that the NCAA violated Section 1 of the Sherman Act by prohibiting its member institutions from awarding multiyear scholarships to student athletes, and by imposing an artificial cap on the number of scholarships that each Division I team could offer.

In their complaint, Agnew and Courtney alleged that they were recruited out of high school for their football prowess by a number of Division I schools, eventually accepting full football scholarships to play at their respective universities. However, because of the NCAA bylaws, they were only guaranteed one free year of education, room and board. Both Agnew and Courtney suffered football-related injuries and, as a result, their respective universities did not renew their athletic scholarships to cover all four years of school.

Agnew and Courtney argued that, in a competitive market free of the NCAA restrictions, they would not have incurred any tuition expenses because they would have received multiyear scholarships that covered the entire cost of their bachelor's degrees even if they were injured. Further, they argued that the NCAA's scholarship limits forced student athletes who do not have their scholarships renewed to pay a lot more than they would have in a competitive market.

The NCAA's primary response at the district court level was that the plaintiffs had failed to identify a relevant market. This, of course, is necessary to plead a successful Sherman Act claim. Calling a quick audible, the plaintiffs urged the court to use a "quick-look" approach to analyze the anti-competitive effects on the market, which, they argued, allowed them to avoid identifying such a relevant market.

The district court sided with the NCAA and...