Blank Checks: The Ivy League Scholarship Rule and the Consolidation of Conference Power

Abstract

Conference governance is the next frontier in antitrust litigation in college athletics. Conferences have their own bylaws, compliance staff, and power to negotiate broadcasting rights. In this article, we address the background, arguments, and implications of the lead test case in this space: Choh v. Brown University. Tamenang Choh, the lead plaintiff, filed this lawsuit against the Ivy League and its member institutions. The Ivy League has one of the most unique—and restrictive—rules in college athletics, and this will be a significant test case for conference governance in the post-Alston landscape. The language in the original Ivy League agreement, which is still effective today, states that institutions may not offer athletically related financial assistance to athletes at their institutions. Choh’s complaint alleged the Ivy League rule violates the Sherman Act’s prohibition of conspiracies in restraint of trade. The U.S. District Court for the District of Connecticut dismissed Choh’s complaint, holding the plaintiffs failed to allege a relevant market.

In this article, we argue the district court’s approach essentially provides conferences a “blank check” to coordinate horizontal restraints on athlete compensation and rights. This approach is flawed for a few reasons: it disregards the distinction between functional and economic substitutes, it ignores geographical restraints surrounding college decision-making for talented students, and it effectively exempts conference agreements from antitrust law. This approach contradicts precedent from the Supreme Court’s decision in Alston, which emphasized the importance of assessing restraints in college athletics based on market realities. Courts should assume a conference may constitute a relevant market and apply the rule of reason, allowing fact-intensive inquiry into market realities and procompetitive justifications. Ultimately, the Choh case will have significant implications for the future of governance in college sports.