Photo: Erica Denhoff/Icon Sportswire
In federal court, the two basketball players from Brown allege antitrust violations

Bill Bradley ’65 said he had 75 scholarship offers when he graduated from Missouri’s Crystal City High School, where he starred on the basketball team and was an All-American twice.

“I actually signed a scholarship to go to Duke,” said Bradley, a two-time NBA champion and former senator from New Jersey. “But five days from when the Duke freshman classes convened, I changed my mind and went to Princeton.”

Bradley, 79, had a decorated Princeton career, including leading the Tigers to the Final Four his senior year. When he reflects upon his collegiate days, he said he has no regrets about giving up a scholarship to attend an Ivy League school.

“If somebody wants an athletic scholarship, they should go where athletic scholarships are offered. They’re not offered at the Ivy League and never have been.”

— Bill Bradley ’65

“I’ve always been very comfortable with the fact that the Ivies don’t offer athletic scholarships,” Bradley told PAW.

It is all the more puzzling to Bradley that two Ivy League basketball players — Brown University’s Grace Kirk and Tamenang Choh — have filed a federal lawsuit in Connecticut District Court against the eight Ivy League schools, alleging antitrust violations. The plaintiffs seek class-action status.

“I don’t agree with that,” said Bradley of the complaint. “I think if somebody wants an athletic scholarship, they should go places where athletic scholarships are offered. They’re not offered at the Ivy League and never have been. If you want a scholarship you should go to another university.”

Kirk and Choh say the eight Ivies are violating antitrust laws through an “ongoing price-fixing agreement,” and their longstanding policy of not offering athletic scholarships. The plaintiffs also claim that by not compensating students for their “athletic services,” the schools are further in violation of antitrust statutes.

“The natural, foreseeable, and intended result of the Ivy League agreement is that Ivy League athletes have paid more for their education and earned less in compensation or reimbursement than they would have in the absence of the agreement,” reads the complaint. “The Ivy League agreement has caused and is causing plaintiffs and the other class members to pay artificially inflated net prices for attending the university defendants.”

A spokesman for the Council of Ivy League Presidents said its executive director, Robin Harris, would have no further comment on the lawsuit beyond her statement earlier this year.

“The Ivy League athletics model is built upon the foundational principle that student-athletes should be representatives of the wider student body, including the opportunity to receive need-based financial aid,” said Harris. “In turn, choosing and embracing that principle then provides each Ivy League student-athlete a journey that balances a world-class academic experience with the opportunity to compete in Division I athletics and ultimately paves a path for lifelong success.”

The foundation of Choh v. Brown University — provided it survives any motion to dismiss — is rooted in two recent court rulings that are transforming collegiate athletics. Two years ago, the Supreme Court issued a unanimous decision in Alston v. NCAA that stated the NCAA could not cap education-related expenses for Division I athletes. Justice Brett Kavanaugh wrote in his concurring opinion, “The NCAA’s business model would be flatly illegal in almost any other industry in America.”

Preceding Alston was the landmark 2014 district court ruling in O’Bannon v. NCAA and Electronic Arts that paved the way for college athletes to be paid for their name, image, and likeness (NIL). Former UCLA basketball player Ed O’Bannon was the key plaintiff in the class-action suit.

O’Bannon opened the eyes of the courts to the misconduct of the NCAA from a competitive perspective,” said Michael Hausfeld, O’Bannon’s attorney and the lead counsel in that case. “That conduct applied equally to the Ivy schools, as well as the non-Ivy schools. It is a matter of custom that people treated the Ivy schools as being a little different.

“What [Choh v. Brown University] emphasizes, ‘No they’re not.’ If you belong to the NCAA, you abide by the NCAA rules,” added Hausfeld.

But Hausfeld also noted taking on the NCAA and any “anti-competitive practices” has become an “industry.”

And Neal Pilson, the former CBS Sports president who testified for the NCAA in the O’Bannon case, said one drawback to compensating athletes — particularly with the proliferation of these types of cases — is that other athletic programs could suffer.

“I think this leads to an unfortunate situation where a few athletes and a few attorneys relative to the totality of the population are going to benefit, but many athletes, students, and schools are going to be damaged by it,” said Pilson.

Division I is the highest level of collegiate athletics sanctioned by the NCAA. The Ivy League’s no-scholarship policy was formalized for football in 1945. The policy has remained in place with the protection of an antitrust exemption that dates back more than 25 years. In 1991, the Department of Justice sued the eight Ivy League schools and MIT alleging the defendants “participated in a financial aid conspiracy called ‘overlap,’” where the schools colluded to establish a fixed money figure that financial-aid candidate families paid to attend those universities.

“The defendants conspired to eliminate cost competition as a factor in choosing a college. The choice of whether to consider price when picking a school belongs to parents and students, not the college or university,” the late former Attorney General Dick Thornburgh wrote in 1991, referring to the Justice Department settlement with all defendants except MIT. The Ivy schools signed a consent decree in which they agreed not to collude with respect to financial aid matters. MIT appealed.

Attorney Robert Litan, the lead counsel on Choh v. Brown, was an assistant attorney general for the antitrust division during the Clinton administration when the MIT appeal was still working its way through the courts. In a New Republic opinion article he wrote in 2021, Litan said his then-superiors urged him to settle with MIT. (Litan declined to comment for this story.)

“Eventually, that is what we did. The settlement prohibited MIT from fixing individual aid awards, but unlike the Ivy consent decree, allowed MIT to agree with other schools on a formula for limiting aid to financial need only and to share aggregated historical data about the frequency of major ‘outliers’ of financial aid awards, so long as the schools committed to need-blind admissions,” Litan wrote, referring to the admissions process where an applicant’s financial situation is not a factor.

As a result of the MIT settlement, the Ivy schools have since 1994 relied on an antitrust exemption that allows them to decline merit awards to prospective candidates, including athletes looking to compete at the Division I level. But as Litan said in his essay, that exemption expired in September, and the Ivy League schools are now subject to antitrust laws. The expired exemption could be a key argument for the plaintiffs in the Choh case, which, if granted class-action status, would only include current and former Ivy athletes since March 2019.

“There is no exemption recognized by law. No congressional statute, no judicial decision that sets apart the Ivy League as some entity above the law,” said Hausfeld.  

Red is a freelance writer based in northeastern Pennsylvania.