Justin Aaron

STOP GIVING THE D3 SCHOLARSHIP LAWSUIT OXYGEN By Frank Rossi, co-host of @D3FBHuddle. I'm a New York attorney, and earlier in my career I handled plaintiff-side class actions, so I've been on the side of the table that has to get a class certified. Last week, three current and former D3 athletes filed Printz v. NCAA in federal court in Los Angeles, challenging the Division III ban on athletic scholarships. Within days, The Third Division was telling followers that "Division III could be getting athletic scholarships," and YD3 was posting that the ban "is facing a new legal challenge" with "broad implications" for 420+ programs. That framing gets the case wrong, and here's where. 1. THE "PRICE-FIXING" LABEL The complaint calls the ban a conspiracy to fix the price of athletic labor at zero. Good line for a press release, but courts don't evaluate NCAA aid rules as automatic violations. Even in Alston, the Supreme Court used the rule of reason. The plaintiffs have to define a real market, show the NCAA has power in it, and prove the rule hurts competition. Saying "price-fixing" over and over doesn't get them past any of that. 2. ALSTON Alston said NCAA compensation limits get full antitrust review. It did not say they all fail. This exact D3 rule was challenged in Rock v. NCAA, and a federal court in Indiana tossed those claims in 2013, finding the ban procompetitive. Rock doesn't bind a court in California, and Alston did away with the idea that judges should defer to the NCAA. The plaintiffs will lean on both points, and they filed in the Ninth Circuit for a reason. But losing deference is a long way from winning. 3. MARKET DEFINITION This is where I think the case dies. Every athlete who picks D3 had other options: D1, D2, NAIA, and JUCO, with hundreds of programs offering athletic aid. D3 is one choice among many, and its whole identity is that it doesn't pay for athletics. The Ivy League case already went down this road. In April, the Second Circuit affirmed the dismissal of Choh v. Brown because the plaintiffs couldn't plead a relevant market. The Ivies recruit against scholarship schools, so an Ivy-only market didn't hold up. A D3-only market is weaker still. Kids choose D3 for academics, location, playing time, the chance to play two sports, and plenty more besides cost. Funny enough, The Third Division's own video ends by making this argument. It says D3 was set up in 1973 so students could put education first, and that anyone who wanted an athletic scholarship could go to another division. That's the defense. They just put it at the end, after the hook. 4. THE CLASS AND THE "BILLIONS" The "billions of dollars" figure comes from multiplying 200,000 athletes by some amount of money. That math only works if the class gets certified and every one of those athletes was actually harmed. I don't see how either happens. An antitrust damages class needs common proof of injury. Net price at a D3 school already varies student to student and school to school. Need-based aid, merit aid, and discounting put almost every athlete at a different number. Now build the world where athletic aid existed. Which of the 100+ guys on a D3 football roster get money? How much, and at which of 420+ schools? Does it come out of merit aid those same kids already receive? What does Title IX do to it? The D1 classes in House and Alston were built on billions in media money and an existing scholarship system to measure against. D3 has neither. D3 athletics loses money, and there has never been athletic aid in the division to use as a benchmark. Any damages number would be a guess multiplied by 200,000 athletes. 5. "SCHOLARSHIPS COULD BE COMING" No deadlines are pending. The NCAA has already said it will seek early dismissal and is pointing to Rock. Best case for the plaintiffs, this is years of litigation followed by an appeal. Any family choosing a school because they think this suit will produce athletic aid is going to be disappointed. WHY THE COVERAGE MATTERS Reporting a filing is fine, and to be fair, both outlets mention Rock somewhere. But the hooks do the opposite work. "Could be getting athletic scholarships." "Broad implications." "Billions of dollars." For an audience of recruits and parents, that reads like change is on the way. What none of the coverage explains is why it isn't: a market definition that already sank the Ivy case, and a class that can't be certified because no two D3 athletes pay the same price. Those are the issues that decide this case, and they're the ones parents need to hear about. D3 was built on purpose: athletes are students, and their aid follows the same rules as every other student's. That model has already held up in court once. Cover the case, but give people the full picture, because the full picture says this one isn't going anywhere.