Pro-NCAA Athletes Petitioning SCOTUS Struggle to Stay on Message

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Daniel Libit and Michael McCann
·13 min read
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A “friend-of-the-court” brief filed last month in a potentially landmark U.S. Supreme Court case on NCAA amateurism purported to show that at least some former athletes, including those who participated in the so-called revenue sports, don’t want intercollegiate athletics to open the door to schools paying players.

The amici curiae brief in NCAA v. Alston, for which SCOTUS will hear oral arguments on March 31, has 18 former college athletes expressing support for the stance of college sports’ governing body. The association has appealed a lower federal court ruling that says the NCAA violates antitrust laws with some of its caps on athletic scholarships.

In making their case, the pro-NCAA filing states that the athletes’ interest “lies in ensuring the proper adherence to the revered tradition of amateurism and the continued availability of intercollegiate athletics.”

But in recent interviews, several of the brief’s signatories, including its most high-profile name—two-time Heisman Trophy runner-up and retired NFL running back Darren McFadden—suggested they weren’t actually clear with which side they were on, at least when it comes to amateurism, or had joined in the effort for largely peripheral reasons.

These revelations cast some doubt on what might have been among the most compelling pieces of testimony in support of the NCAA’s position.

In a telephone conversation last week, McFadden indicated that he was largely unaware of what the grant-in-aid litigation was about and gave indications that his intuitions were more in line with the plaintiffs.

“Once you are an adult, you want to make sure you can take care of your family…. You don’t really get that opportunity to help your family out [while in college],” McFadden said, later adding that he supported college athletes getting an additional stipend to their scholarship. When asked about what personal experiences had informed his perspective on the subject of college athlete compensation, McFadden spoke about being an SEC football star who was unable to afford paying a $50 parking ticket.

In a separate interview, Walter Bond, a former basketball star at Minnesota who played four seasons in the NBA, said that despite being part of the amici curiae, he believed college athletes were, in fact, employees of the universities they played for—a nonstarter for any legal defense of amateurism. “I think I must have misunderstood,” Bond later said about the case, acknowledging that it was possible he didn’t actually agree with the NCAA’s position.

Meanwhile, another former college basketball player who signed the brief, Tre’ Kelley, suggested he had primarily joined the amici curiae because of his connections to Orrick Herrington & Sutcliffe, the firm that filed the brief.

“I am actually doing a favor for a good buddy of mine who works for the firm,” Kelley told Sportico. After initially agreeing to speak for this story, Kelley politely declined to answer other questions, saying that he had been contacted by Orrick an hour before a scheduled interview and advised to not talk about the case with the press.

In a statement, Will Stute, one of the Orrick lawyers who authored the brief, said it “fully and accurately reflects their support of the NCAA’s position on the issues before the Supreme Court. It is false and misleading to suggest otherwise.”

Within a minute of Stute emailing his comment, Bond and Kelley simultaneously sent emails to Sportico with identical, first-person statements, proclaiming to “believe in and support the system of amateurism in college sports.” (Sportico has published these remarks in their entirety at the end of the story.)

The Feb. 8 amici curiae brief was the eighth that had been submitted to the Supreme Court in NCAA v. Alston, which through consolidation includes the companion case ACC v. Alston. While the other briefs are written by law professors, economists and similar subject-matter experts who write as observers, the players’ brief lends the viewpoint of the population directly impacted by the NCAA’s current rules dictating what players can receive while athletically eligible.

To that end, the brief warns that if colleges “are permitted to offer virtually limitless benefits to recruit and retain top student-athletes, amici fear that future generations of student-athletes may no longer have access to the same opportunities they had—including access to higher education.” Whether this admonition is predicated on an exaggerative retelling of NCAA v. Alston is up for debate. The Alston class has argued that the NCAA and its member institutions are violating antitrust laws by colluding to limit the values of athletic scholarships. The Ninth Circuit’s ruling only forbids competing schools from agreeing to limit college athlete compensation “related to education,” such as student costs for computers and science equipment, not compensation related to athletics.

Similarly, the brief paints a romanticized, high-minded picture of college sports up to the present moment.

“Starting with the 1852 Harvard-Yale regatta held on New Hampshire’s Lake Winnipesaukee,” the brief states, “student-athletes have demonstrated their passion for sports while representing their respective schools, student bodies, and alumni.” It goes on to highlight a core distinction between college sports and pro sports: College athletes “do not get paid to play their sport and must remain academically eligible to play.” Yet the brief noticeably omits mention of how commercialization has already led to multi-million-dollar salaries for coaches and billion-dollar broadcasting deals.

To the extent a justice seeks to proclaim that amateurism is alive and well and ought to be respected by courts, the players’ brief offers a document that can be cited for that very proposition. The fact that, as of this week, no other group of players has offered a brief, only amplifies the chances it will play an instrumental role.

For followers of the legal and philosophical debates over college-athlete compensation, McFadden’s presence in the group of amici curiae, as its lone gridiron representative, stands out, especially considering how few athletes of his public profile have rallied to the NCAA’s cause. Given that the Alston case is often seen as a successor action to Ed O’Bannon’s 2014 antitrust suit against the NCAA and video game-maker EA Sports over the commercial use of athletes’ name, image and likeness, it is also notable that McFadden was one of the cover athletes for EA Sports’s NCAA Football 09.

Kendall Spencer, a former college All-American track athlete who has helped coordinate the amici curiae, hailed McFadden’s support as a major coup for the NCAA’s side.

“Him being as prominent as he is, as a cover athlete, is notable, and I think it speaks volumes to both his understanding of the implications and the role he thinks amateurism and intercollegiate athletics play in the lives of all of us, especially minority student athletes,” Spencer said.

McFadden told Sportico he became involved with the brief after being contacted by someone at his alma mater, the University of Arkansas, who then passed his number along to “some of the people who took this head on.” He declined to clarify who those people were. When told that his responses to questions sounded like he was arguing against the NCAA’s position, McFadden demurred, “I haven’t done all my research and followed up on different things and [don’t know] what is going on with different lawsuits. I can only give my opinion, and it is pretty much that.”

A source close to McFadden later told Sportico that the ex-NFLer had offhandedly agreed to join the amici curiae as a perceived courtesy to Arkansas.

“The problem is Darren will say ‘yes’ to everybody,” said the source, who had spoken to McFadden directly about the matter. “[McFadden] is definitely opposed to schools being able to buy kids, but he clearly knows there are needs and costs that scholarships don’t cover that needs to be covered…Unfortunately, through a series of events, he didn’t fully understand the scope of the whole case is not about schools being able to buy kids.”

(An athletics spokesman for Arkansas did not respond to a request for comment.)

The Orrick firm has previously done work for the NCAA, and its website boasts that its trial attorneys “are helping the NCAA with solutions in courtrooms across the United States.” Last year Orrick attorneys successfully defended the NCAA in a lawsuit brought by Jennifer Bradley, a former field hockey player at American University who sued the NCAA and others for negligence related to a head injury she suffered while playing. (Two decades earlier, Orrick attorneys litigated on behalf of Adidas in an antitrust case against the NCAA.)

For his part, Bond said that he joined the brief after being contacted by Stute. In addition to co-authoring the athletes’ amici curiae brief, Stute has also served as the national trial counsel for the NCAA in its concussion litigation. “He asked me what I thought, and after we had a conversation about it I agreed with the position,” Bond said.

However, Bond soon revealed, and eventually acknowledged, that he was uninformed about the key arguments in the case and, for that matter, the brief he had signed. For example, when first asked what motivated his support for the NCAA’s position, Bond spoke of his experience as a college player watching teammates struggle through poverty.

“I would see my teammates being starved on campus, or not able to afford a suit, or their parents couldn’t see them play—just basic things that a lot of college students experience,” Bond recalled.

When pressed about how this perspective led to his support of the current restrictions on “non-cash education-related benefits” for college athletes, Bond requested that he have another day to study up on the case before continuing the interview. He then asked a reporter to send him a “Cliff’s Notes” version of the lawsuit or an online video that would briefly summarize its main points. But in a follow-up conversation, Bond’s attempt to reconcile his position with the NCAA’s arguments only seemed to further contradict them.

While he vouched, at least ostensibly, for the importance of amateurism, Bond, who now works as a motivational speaker, also said that he was in favor of athletes receiving additional financial benefits, beyond their scholarship, such as annuities after graduation.

Unlike McFadden, Kelley and Bond, most of the pro-NCAA amici curiae are former Olympic sport athletes, including a handful who are currently training for the Games in Tokyo this summer.

Spencer, who recently graduated from Georgetown Law School, said perhaps the greatest value of the brief is in demonstrating how the interests of college athletes go far beyond the recent headline-grabbing discussions about marketing, like how some pro-bound stars may not be able to fully capitalize on their market potential while in college.

“We understand athletes are going to fall in different sides, but the worst thing that could ever happen is to have a decision that gets made, and you come to find out a month later that there is a critical narrative or piece of information that the people litigating the case didn’t think about it,” Spencer said.

One of his primary concerns is that the erosion of amateurism would only further pit college football and men’s basketball players against those who participate in the Olympic sports.

“When you switch that up and create an open market, you naturally invite competition,” Spencer said, “but you invite, in this space, a certain type of competition that in my opinion gets very dangerous.”

Noting that he served as the first athlete representative on the NCAA’s Board of Governors, Spencer defended the association as having increasingly welcomed athlete input and argued that the caption of the case now before the Supreme Court was inherently misleading.

“To have student-athletes against the NCAA doesn’t make a whole lot of sense because student-athletes are the NCAA,” Spencer said. “A lot of people would be shocked that some of these [existing NCAA] policies, when it comes to pay-for-play, were created by athletes.”

Olympian Kara Winger, a javelin thrower who competed at Purdue, said she joined as an amici curiae at Spencer’s request, having gotten to know him last year through their leadership committee roles within USA Track and Field.

Like Spencer, Winger believes efforts to bring greater market forces to bear in college sports directly threaten the future opportunities for athletes like her.

“When resources are limited, Olympic sports are the first ones to get cut—as we saw in COVID times,” said Winger, who sees the preservation of college sports amateurism as essential to maintaining the U.S. Olympic pipeline.

Morgan Chall, a former Cornell gymnast and recent past chair of the NCAA’s national Division I Student-Athlete Advisory Committee, said one of her core concerns is schools’ failure to live up to their Title IX obligations to provide equal opportunities to female athletes.

“The amicus brief doesn’t touch on that because it can only be so long,” Chall said, “but that is definitely still an argument that I believe is parallel [to the argument] about how this compensation arms race will potentially hurt those nonrevenue sports.”

The first sign of whether the pro-NCAA athletes’ brief will play a role in the Court’s thinking will come at the end of the month, when attorneys for both sides field questions from the nine justices in the oral argument. The justices’ questions might noticeably draw from these athletes’ written perspectives. The brief could also be cited by the Court when it releases its opinion (and any concurring and dissenting opinions) this summer.

TEXT OF STATEMENTS SENT BY WALTER BOND AND TRE’ KELLEY

I am writing to clarify a few things after our telephone discussion. First, I am not a lawyer and not familiar with all of the legal intricacies in the amicus brief. But I fully support its main arguments. Second, I believe in and support the system of amateurism in college sports that I participated and benefited from as a student athlete. This experience helped mold me into the successful man and entrepreneur that I am today. Third, I wholeheartedly support changing the model of amateur athletics in the ways the NCAA has discussed publicly so that the system is more equitable to student athletes. If it were not for these changes to the system that I believe the NCAA is in the process of finalizing, including the opportunity for student athletes to profit from their name, image, and likeness in some reasonably fair way – then I would not be supporting the NCAA nor would I have signed onto the Amicus Brief. I believe in amateurism and support our current model of student athletes because I know it brings value to so many young people across our country, as it did for me. But my future support depends on the NCAA implementing the long promised changes to the amateur model that are aimed at making the system more economically equitable for student athletes, within the amateur model currently in place.

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