is starkly inconsistent with this court's decision four years ago in o'bannon and would redefine college sports as we know them you know bannon addressing a materially identical challenge to virtually the same amateurism rules this court held that those rules are pro competitive and can be set aside only if the plaintiff bears the heavy burden of proving the existence of an alternative that is substantially less restrictive yet virtually as effective without significant costs the plaintiffs did not introduce such evidence and the alternative that the court adopted is certainly not supported by it amateuris as reflected in the n c double a's rules and recognized in o'bannon prohibits as athletics related compensation beyond covering legitimate expenses or modestly recognizing achievement yet the district court's injunction would probe it colleges sponsors and boosters to recruit athletes with promises of internships that pay hundreds of thousands of dollars in cash new cars to get to class colleges can't promise to pay thousands of dollars in cash each year that any student athlete remains academically eligible to play and can also promise other laugh additional benefits unlimited according to the court's injunction so long as they are somehow nominally related to education o'bannon should have barred this suit from the outset but in any event the trial court committed both legal and plain factual error at both steps two dollars and three dollars of the rule of reason  analysis st as to step two the legal error was two fold echoing o'bannon echoing board of regents rather this court held in o'bannon that materially identical compensation regulations were pro competitive because they quote preserve the popularity of the n c w a's product by promoting its understanding of amateur be very interested in your take on what is the relevant market here it seems that the ban and court are court and the district court in obedience to that concluded that  basically what the consumer wants controls the market for those who are aspiring to be paid more that's my take on it and i am trouble ought not to be measuring the market in terms of some other market i e in this case consumer demand but rather in terms of the offended sellers i think everybody anybody disagrees that you've got an antitrust violation here the question is does the rule of reason apply how does that apply in the market consideration i think is principle and what your take on that so i think judge smith you are right that o'bannon did hold that the pro competitive benefit that essentially that the defendants established at step two and that this court affirmed as as warranting putting the burden on the plaintiffs to move to step three was in fact that they that the n double a rules create a differentiated product amateur collegiate intercollegiate athletics that is pro competitive because it provides for consumer choice and of course that's exactly what the supreme court explained in its board of regents decision when it said that the amateurism rules achieve the pro competitive purpose of quote maintaining the integrity of college yet sports as a distinct and attack attractive product thereby widening consumer choice and you're quite right that this court echoing o'bannon and the same has been true for the decisions that we've cited in the rd th th and th let's talk about regions i know you're a supreme court scholar so you have no trouble with religion so that was a long time ago i actually had a cousin who was solicitor general then before you that argue that very case yes one of the greatest and i i just i am troubled by the concept that somehow a competition between two if you will two competing athletic associations who want football rights somehow governs this case i know that some of the of the court there is important and talked about the product and so on i think the district court here also picked up on that idea but regions doesn't really control here doesn't well we think that o'bann controls here and oban and held as a matter of law that the n c double a's rules that make possible a differentiated product that is wildly popular satisfies the pro competitive purpose of step two now i will say that we took the position in front of judge wilkin that stari decisis and race judicata required a dismissal of this complaint but in any event the court denied that and we sought to put on evidence showing that the market is in fact not the market that she concluded was the market in o'bannon but rather that the market was in fact what the supreme court has recognized in the american express case as a multi sided market that involves more than just athletes on the one side on the one hand and consumers of on the other if that's  true as you know well the district court in this case found that i want to be sure and get this correct here that for example the changes that the n c double a made in its bylaws involve no analysis concerning consumer demand it what's the best evidence that you have that the district court did not already consider that amateurism really does play a role in increasing demand for this product so i don't think that even the district judge  i want to address the judge's findings or belief that there was some materially substantial change in the rules between the time that o'bannon was decided in the time to scase was tried because as we've indicated  try to explain in our reply brief the answer is absolutely not there is no material difference in the rules that existed at the time that o'bannon was tried and argued and decided by this court and the time this case was tried or for that matter now but even even judge will can both in o'bannon and hear held that the plaintiffs had the defendants had satisfied their step to burden because there is no question that the product that we provide amateur intercollegiate sports is pro competitive because it provides for consumer choice under the sherman act that is the definition of a pro