William & Mary Law School Professor Alan J. Meese has joined an amicus brief [view on SSRN] with 14 other antitrust scholars in O'Bannon v. NCAA. The case involves a class action by current and former college football and basketball players challenging NCAA policy limiting player compensation to a full grant-in-aid (tuition and fees, room and board and course-related books). The brief, filed in the U.S. Court of Appeals for the Ninth Circuit in support of the NCAA, takes issue with a critical aspect of the district court's reasoning.
"The district court found that limitations on player compensation served important procompetitive interests, such as enhancing consumer demand for college football and basketball, quintessentially amateur endeavors," said Meese. "The court nonetheless invalidated the limits because it believed that a 'less restrictive alternative,' in the form of somewhat greater compensation, would achieve the same objective. The brief takes issue with the district court's application of the less restrictive alternative test. In particular, the brief contends that the district court improperly treated the less restrictive alternative test as a license to second-guess the judgment of actual market participants who adopted policies that, according to the court's own findings, produced significant economic benefits."
For more about the brief and the decision, read Professor Meese's December 5 post, "O'Bannon, the Rule of Reason, and the Less Restrictive Alternative Test."
Professor Meese is the Ball Professor of Law and Cabell Research Professor at William & Mary. He served as a senior advisor to the Antitrust Modernization Commission from 2004-07. He is a nationally acclaimed antitrust expert whose scholarship focuses on the intersection of transaction cost economics and the antitrust treatment of various forms of horizontal and vertical integration.
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