for more than a one hundred years the distinct character of college sports has been that it's played by students who are amateurs which is to say that they are not paid for their play maintaining that distinct character is both pro competitive because it differentiates the n c double a's product from professional sports and can be achieved only through agreement the lower courts agreed that the n c double a's conception of amateurism is pro competitive but in striking down several of the rules they made two fundamental errors st they defined their own quote much narrower conception of amateurism to mean only that athletes not be paid on limited amounts on related to education and they then imposed a regime that permits athletes to be paid thousands of dollars each year just for playing on a team and unlimited cash for quote post eligibility internships that manifestly preserves neither the n c double ways demarcation between college and professional sports nor even the lower courts because whatever their labels in these new allowances are akin to professional salaries especially given the truly unique history here a rule that is reasonably designed to preserve amateurism as the n c double a has defined it should be upheld roos rules that do not enforce the amateur status of athletes by contrast may be subject to detailed scrutiny decades of judicial experience show that that distinction is both sensible and administer a bill and the alternative is perpetual litigation and judicial superintendents as the past twelve years in the th circuit so vividly illustrate and porten mr chief justice st of all look we understand that there's been a trial here and we are we are perfectly prepared to explain as we've tried to in our briefs why not withstanding the trial reversal is required and the antitrust laws do not permit the court to impose the decree that it did but we think that in order to avoid the situation that we currently have where we have endless line drawing and judicial supervision  pocket punctuated by requests for treble damages it's important for the court to speak clearly here and i will say that given that we have what the what the government acknowledges is a truly unique situation in which we have a product that is defined by the restraint on competition it is perfectly appropriate and necessary for the court to examine in whatever detail is necessary whether the product that's produced really is pro competitive well it is my dear friend on the other side as we've never used the quick look doctoring to hold restrictions only to strike them down well look quick look is a particular phrase we haven't used it but this court has based clear that the rule of reason represents a continuum of scrutiny as the court explained in cal dental  the court needs to determine the inquiry meet for the circumstances this court recognized the fact that in in american section six of american needle dad a form of quick a look or abbreviated review may well be appropriate to uphold the very kind of rules that are at issue here and more broadly mr chief justice in any trust cases like brought up and t court has adopted clear standards that up plaintiffs must meet in order to overcome dismissal and the rationale for the approach that we have to make it advocate is similar to what prompted the court in those other pay for play you know you're paying the insurance premium so that they will play in college and not in the pros doesn't that undermine the amateur status there you have well i'll say two things mr chief justice st of all one can dispute whether one particular line or not is drawn in the right place but the notion that this particular rule and i'll explain it's rationale in a minute which allows a less than you explained less than a minute late in less than a minute loss of value insurance which has been provided in a few instances by some schools administering their student activity fund is a form of insurance against injury just like disability insurance and extended medical insurance is a cost of participating in athletics that permits athletes who want to receive an education instead of pay for their play can continue to do so thank you cou look at the limitations of the benefits or pay to players but is there a similar focus on the compensation to coaches to maintain the station between amateur coaches coaches and the amateur ranks as opposed to coaches in the pro ranks thank you justice thomas so the n c double a previously had a rule that limited the amount of compensation that coaches could receive it was challenged in the th circuit in a case called law vs and c double a b and c double a sought to defend that rule on the amateurism principle and what the t circuit said was look rules that are reasonably role designed to protect the amateur status of student athletes should be paddled in the twinkling of an audi but coaches are not student athletes they are professionals just like professors and presidents and therefore the court applied full rule of reason review and struck down the limitation on coaches so the t double a is no longer permitted under the any trust laws from in any way restraining the salaries of coaches and other professionals well it just strikes me that the coach there's nothing more i can say that will not get me into trouble so let me answer justice thomas question the the rules that were challenge to in border regions to were a particular restraint on the number of televised games that the n c devil i would allow its teams to hold and what the court said is number one because this is an industry in which agreement is necessary for the product to exist at all we will apply the rule of reason and we will apply a full rule of reason inquiry into the pro competitive benefits of the television rule because they do not fit the mold of the core rules that defines the the product itself that is the rule the eligibility rules that require that come contestants be students and amateurs and it's from the dad that both we and this court in section six of american needle derives the principle that when a rule on its face is shown to examine the principle of court of appeals seem to say and she doesn't like you cannot limit giving them musical instruments computers etc and then they add the cost of school get away with murder in terms of what they give the athletes and you have to do or they might be some minor thing but is that what you are attacking or you are attacking other things as well or was it just this prior let me start with  general and proceed to the particular your st question is what is it that you're complaining about we think that we think that any trust courts lack the authority to redefine the central differentiating feature of c and c double a's pro competitive product particularly where the history and context shows so plainly oh i understand that but i say it has to end up in something so the telling you to do have imposed a regime in which student athletes can be paid a large sums of money on account of their athletic performance which does not distinguish college from professional sports much less as deadly as the challenge to rule one that allows you to do it what's the lie what's the sentence that allows you to do that because i felt the core of the court of appeals was saying let's go it doesn't let them do it doesn't do that i i'll give you three examples if i have the time and number one the court now says that we cannot progress we cannot restrain schools from awarding to every division one athlete just for being on the team five thousand nine hundred and eighty dollars per year god help us that is nothing but pay for play number two that we have to we cannot restrain put in any way any limit on the number of post eligibility paid internships that student athletes can receive a year and with respect to the long laundry list that is reflected in paragraph two to what the court has said is why we cannot place any limits on anything that can be deemed an educational comp educate related to education when in the present world as the district court recognized we permit student athletes to receive the actual and necessary educational expenses including every single one of these things provided that they are actually necessary and reasonably limited and the court said no you can't place any limit on that and we can put labels aside to that con that permits schools to allow pay for play and the dist and the reason why we need to allow the n c double way to continue to enforce the amateurism principle which is well understood is in fact illustrated by justice thomas point about the college coaches we know what happened to college coaches salaries when the court struck down the n c double a's rules limiting those salaries they  stark picture and they argue that colleges with powerhouse football and basketball programs are really exploiting the students that they recruit and they have programs that bring in billions of dollars as justice thomas mentioned this money funds enormous salaries for coaches and others into jeopardy departments but the athletes themselves have a pretty hard life they face training requirements that leave little time or energy for study constant pressure to put sports above study pressure to drop out of hard majors and hard classes really shockingly low graduation rates on only a tiny percentage ever go on to make any money in professional sports so the argument is they are recruited they're used up and then they're cast aside without even a college degree so they say how can this be defended in the name of amateur well let me let me respond i mean there are there is a healthy debate going on in legislatures around the country over whether college athletes should as a matter of principle be paid our view and that is not any any trust question our own view is if the you allow them to be paid they will be spending even more time on their athletics and devoting even less attention to academics but the n c double a has rules limiting to thirty five hours a week the number of hours that a division one athlete can spend and this applies to all division one athletes just not in that two sports in a few schools that happen to make money you say that the schools are making billions of dollars on this there are one thousand one hundred dollars schools that belong to the n c double a twenty four hours in some years twenty five schools make money on their athletic programs the rest of the programs are subsidized by general revenue student fees and to wish in and the notion that they graduate at lower rates and they have post outcomes is contrary to the evidence in this case well no evidence what did you say is what you say is true of the thousands and thousands of real student athletes but what's the graduation rate for football players in the power conferences you know i can't  should from memory the statistics professor heckman it was one of the witnesses at trial testified and all i can remember is that what he said and there is support for this in independent studies and some of the one hundred years ago but in fact they are paid they get lower emissions standards they get to wish in room and board and other things that's a form of pay so does a station is not whether they're going to be pay it's the form in which they're going to be one allowances for educational expenses and educational can include both academic and athletic that is the reasonable and necessary expenses to obtain an education and number t if your priority is maintaining amateurism in college athletics and you and your members think that increasing education related benefits will undermine the spirit of amateuris national agreement is the only solution there is no doubt that what has happened to with respect to the pay of college coaches and other professionals will happen if seem to me that either the th circuit or the district court prohibits the n c a a from limited limiting educational related expensive studios that are reasonable so so all of  parade of horribles the government says are taking care of by that limitation if you think that internship should be related in some way to the educational experience  you could pass rules to that effect so why doesn't that take care of your parade of phone horribles just a sort of my or you keep saying reasonable educational expenses what the decree says is that we may not limit in any way compensation or benefits that are in any way quote related to education and includes and no one disputes this the fact that we ma that school under her decree schools may provide five thousand nine hundred and eighty dollars per year to every division one athlete just for being on a team and once a court gets in to draw a line drawing in this respect litigation and level of judicial superintendents is inevitable and so why five thousand nine hundred and eighty dollars as if this court were were firm within a month there will be another lawsuit in addition to the two that are already now working their way through the district court in oakland which will say number one well we have an expert who says that we don't think that consumers would be that bothered if it were a one thousand dollars a year and so we want eight thousand dollars a year to be imposed and by the way we also want treble damages for the fact that for all these years we haven't been getting our five thousand nine hundred and eighty dollars the district court says no limits whatsoever on a post graduate in turn ship the next lawsuit says we want trouble damages because we weren't given on limited post graduate internships and then there's another lawsuit that says the way you talk about amateurism it's sounds awfully high minded but there's another way to think about what's going on here and that's that schools that are naturally competitors as to athletes have all gotten together in an organization an organization that has undisputed market power and they use that power to fix ethics alaric at extremely low levels far lower than what the market would set if it were allowed to operate so why wouldn't we think of it in just that kind of way that these are competitors getting together with total market power fixing prices well i think the st answer i would give you is this is not some product some differentiated product that has just been created and we're now testing whether or not it was adopted in good faith we're talking about a product that was created a one hundred and sixteen years ago in response to abuses that were occurring as a result of instances professionalism in athletics in order to restore integrity and the social value of college athletics almost a one hundred years ago justice brandeis if you don't ride on the history i think mr  waxman for so long i mean a great deal has changed since a one hundred years ago in the way that student death leads are treated and you know i'll take you back to justice alito is question and the kind of payments that they're given you know a great deal is changed even since board of regents let alone one hundred years ago so i guess it doesn't move me all that much that there's a history to this if what is going on now is that competitors as to labor waves at the ruler of the rule over even applies here this court has said because sports leagues produce a product that can't be reduced produced without agreement and this is as your question points out well for sure and  some things i mean you know sports leagues have to get together to figure out the rules of the game how many people are going to be on on the court at any one time so of course there are things that there needs to be cooperation for but  you would have an argument but as i understand what the trial court did here it basically took a lot of evidence as to that question as to whether the lack of pay to play was anything  consumers wanted and what it found was that consumers didn't really care about that the other side's experts found on the basis of survey evidence and so forth that payments of ten thousand dollars or more would not affect demand your expert failed to show anything to the contrary essentially you're saying that the differentiating feature is the lack of pay to play but the evidence in this trial suggested exactly the opposite so the evidence in this trial very much did not suggest exactly the opposite interest to table one example when when their survey expert tested people's reactions to giving them you know a ten thousand dollars academic award something like ten percent of the respondents said that they would be less interested and would watch less if that's the case the question a fair that that that pro competitive differentiation is not necessarily measured by net consumer demand there the independent value of preserving consumer choice is not the value of maximizing consumer interest on the one who wouldn't have otherwise look any competitive whether they're territorial allocations or price agreements in order to create a product that wouldn't otherwise exist and we usually give that a pretty quick look maybe even a twinkling of the eye so that all that will make sense to me and we certainly don't want to go back to the bad old days of reviewing any joint venture agreement that restricts competition to per se analysis or or something looks like a strict scrutiny elsa's which i understand you condemn the the th circuit for doing so i understand all of that i think the trick comes for me at least sort of where justice kagan was alluding to which is here the agreement that's really at the center of the case is an agreement among competitors to fix price with the labor market where you have monopsony control and that's unusual in the normal joint venture it is in a competitive market but here the n has monopsony control over labor price there aren't other the leagues in which that might compete with the n c a a that might allow payments and you could test consumer demand that way so why why monopsony control over the labor market at least an appropriate basis for a more more more searching rule of reason analysis thank you justice course it's so let me be let me be very clear given that this is the rare product that is defined by the restriction on competition compensation it is we're not saying that it's not appropriate for a court to examine in whatever detail is necessary whether the product really is pro competitive but if it is and in this case there is an agreement that the inquiry at step two is our product differentiating and pro competitive everyone agrees that the answer is yes once that is a given where there is no plausible argument that the challenge rules are reasonably related to the amateur status of student athlete which is the differentiating feature we think that abbreviated review is all that's necessary and that's a principle that that tends to circuit in mccormick the rd circuit  smith and the th circuit in depth applied and we think that was was blessed by this court in american needle and looking to end quoting the relevant language from board of regents i guess i'm not sure i heard a direct response to my question in that case i apologize no no no no no no apologies let's just drill down a little bit further i guess what i'm trying to ask you and maybe i did so it artfully is whether the fact that the it makes all the difference in the world for purposes of step along of the rule of reason which is that as this case comes to this court there is no dispute that he is the no pay for play rule imposes a significant restraint on a relevant and he trusts market absolutely just as and as this case ca to this court there is no dispute that those restraints have a substantial pro competitive benefit and so let the question of what level of inquiry is appropriate in applying the rule of reason rests in this case on step three thank you i hope that answers your question the idea that the any trust laws should not be a cover for exploitation of the student athletes so that is a concern overarching concern here i see your rhetoric in tradition and history our human is being very similar from a different era so then we get to radio or any truslow rule reason and i just want to drill down on your asserted pro competitive justification and how you say the product is differentiated it does seem as justice kagan and justice course which suggested justice alito the schools are conspiring with competitors agreeing with competitors all you say that to pay no souring use to the workers who are making the schools billions of dollars on the theory that consumers want the schools to pay their workers nothing and that just seems entirely circular and even somewhat disturbing and then as justice kagan says it's not even factually supported in the record in this case and seems to blend back to the traditional argument all things circle back to this idea will it should just just don't worry about a college athletics is differences like baseball so those are the concerns i have interest in your response to those are those are a lot of concerns i hope i can remember them all and address them all is the notion that these amateurism rules were imposed or constitute a cover for exploitation of athletes is a wrong and b not any any trust issue it may very well be a policy issues that policymakers like legislatures can address about whether they whether they think an amateur the amateur m models that is as the economist supporting us say is pass produce perhaps the most pro competitive product in american industrial history is worth it we are not asking for an exemption from the rule of reason there is no question that the as the court said in board of regents because this is a product that can exist without agreement the rule of reason applies and our position is and this i think goes to here but let me just say that we think that board of regents is eighty six dollars is thirty seven years old but we think that the observation that the court made in board of regents about the value that consumers place on the tradition of and mature intercollegiate athletics is just as true today and again it vertically as you did to justice kagan spoiling even assuming that the evidence in this case supported a conclusion that consumers would be just as happy if athletes were paid or athletes were paid ten thousand dollars here for just being on the team and dad doesn't receive six thousand dollars a year as if that were some exorbitant amount when the t v contracts are in the billions six thousand dollars a year is not not a lot given the time and the injuries  and inability to go to us or to major in the sun want to work to do summer jobs i mean you're talking about six thousand dollars if it's someone sort of an amount look we we and we have rules and if there is a very very clear and stable line that defines the feature of our product that's it the amount of hours spent and what majors they pick and all that sort of stuff reflects applies to every division one athlete in all twenty four and c w a division sport and if there is a problem with the n c double way enforcing its hours restrictions or in some way disadvantag and all of these educational and kind benefits really are a form of pay when you answered and you say it's not pay because the end state of illinois is defined as the reasonable and necessary expenses to obtain education but i'm wondering why does a double it get to define what pay is and i think you know this is based on experience but there are certainly plenty of parents and students i mean some people want to play in college for the love of the game some people think they'll be able to go pro  of people do it because they want to be able to afford college educations or or you know get the in kind benefit equal to you know say thirty or forty thousand dollars worth of two of tuition so why do you get to define what  well i think there's a general principle just as barrett is and i think this is this is simply received wisdom for any trust for purposes is producers get to define their product they get to define t features of their product we have long to find our product to exclude from pay the reasonable and necessary expenses of obtaining an education we give scholarships and we have student assistance funds for all kinds of students whether they're athletes or not our definition which has been stable over decades long predating board of reg is that it is you're not being paid to play if you receive an allowance for the actual and necessary expenses of your education whether those expenses then how you react by an amateur as someone who isn't paid because i think back at the back had a point as is that a pro competitive are legitimate problem pettitte and justification to say that consumers love latching on peed on paid people play sport yes indeed in fact in board of regents and in fact even in the majority opinion in o'bannon they the court said that that the principle of amateurism is a well understood and it means in both cases they said you are not paid for play but you may receive the expenses of obtaining an education and in fact in o'bannon the reason that the court struck down a red bell since abandon rule of the n c double lay that prohibited schools from paying at full making athletic scholarships up to the full amount of the cost of attendance was that the th circuit said well even the n c double a at mit's that that is not a rule that distinguishes an matures from professionalism because the cost of attendance is the cause the expense of an education so yes that is our line honestest gears mr waxman asked about the effect will title nine is an independent mandate and you know the schools have to obviously have to adhere to the title nine mandate the evidence in the case show that if schools were in fact required to make that kind of payments that the district judge imposed in her final decree schools i mean they have to come up with the money somewhere that you know that the six thousand dollars a year amounts to seven seven hundred and thirty five million dollars per year that schools have to come up with in addition to that they retrospective treble damages awards and there the evidence was that schools would perforce reduce the number of quote non revenue sports men's and women's sports thus reducing the advantages and offerings available to student athletes in those other sports i mean i think my point about what the consequences are is that i think we can see in the th circuit what the consequences of allowing district judges to hear evidence and success of cases well people don't care about this or people don't care about that and so raised a long ministered pro competitive amateurism rules needing to account for multiple constituencies and changing circumstances as the questions today illustrate it offends the and he trusts laws a court to appoint itself as a superintendent to nd guess those judgments blurring the distinction between college and professional sports and facilitating successive lawsuits and treble damages award all based on suppose it evidence that an alternative regime of the court's devising wouldn't diminish net viewer interest this is the one and only case in the history of the sherman act ever to strike down restraints that are what differentiates the product and particularly in the unique circumstances here it was manifest error to do so thank you thank leads to the conclusion that the rule or reason applies the courts belong recognise this and as a result petition has had an ample latitude to prove a pro competitive justification a has argued that economic competition among its member schools would destroy consumer demand for college sports in border regions it was competition for t v boy in the odd case and history has proven the courts were correct demand for college sports is continues to flourish and by the way that has never been stable as a retail only if two thousand and fifteen of the n c a a said you couldn't provide even the most basic cost of attendance for the athletes and this case has more to say it is just the latest iteration of the repeatedly debunked claim that competition will destroy consumer then the thing that concerns me about your approach and that was adopted by the court below the n c a a has a number of limitations that are designed to ensure that its product is amateur athletic competition and you look at in the district court looks at one rule and let's say it's a limit of two thousand dollars for something and you say when we can make that less restrictive let's make it two thousand five hundred dollars and that's fine and that doesn't alter the public provide and you pull out one law and then another and everything's fine then another and another and all the sudden the whole thing's come comes crashing down and what's your answer to that way of looking at it i do not believe that is what the district court did he under the prevailing law what the district court did is it tested factually whether the n c a a he could prove a pro competitive justification for all of its rules together and found that it fail it then looked instead can it justify scholem categories of those tools and found that it succeeded then attach step three we had to burn to show it was it's fine for amateur athletes to make twenty thousand dollars a year would really be back in court with litigation suggest about that rather as opposed to the six thousand  substantially less restrictive alternative that type of simple versions and never going to pass that test but more importantly here the court did not shaft this five thousand nine hundred and eighty dollar did not see any damage to its product by allowing its top player to make that bowl winning a bowl game for being an m p and you know i'm sorry to cut you off  fine for the pro level schools whether it's you know if you know alabama state and nebraska but it doesn't for the schools that have more modest circumstances consider that is a problem in an environment where you're trying to remain maintain competitiveness and amateur status so there's no reason your honor that the n c a a doesn't assert competitive balance as  defense in this case and that's because those schools don't compete now now alabama pays its awake coaches seven hundred thousand dollars a year none of those small schools can do that and they build palaces what these competition restraints do is they divert the big schools money to these other areas to compete but it doesn't change the competition and remember this injunction doesn't require one school to pay anything it simply says the n c a a can't prohibit it but the toughest ted so for example the patriot league doesn't even allow their schools to pay a lot of scholarships conferences can adopt for the smallest schools justifier high finke if we really have a case here it's a tough case for me and the reason it's so tough is for me is because this is not an ordinary product this is an effort to bring into the world something that's brought joy and all kinds of things to to millions and millions of people and it's only partly economic ok so i worry a lot about judges getting into the business of deciding how i am a true sport should be run and i can think of ways around that st you know just say it's a different kind of product this is what you would lose on that nd you could say that consumer demand is not at all the only criteria you could have a purple widget joint venture and you say nobody can make red widgets and i'm sorry they can't even if consumers would just as much like bread widget because it's a purple widget joint venture or you could say this is a rule of reason taking into account other things take into account administrative problems in working out these rules for the ns a double a and the fact that there's nobody can work with forty thousand professors and schools and everybody thinking something different you're going to obviously end up with something of a mess and it's a tough problem for having thought of four or five different ways by means of which you lose i also think i'm very worried about my ways because how do i do it if i say these things i might be also affecting i would say that i do believe under the rule of reason in the antitrust laws the pro competitive to pick a shin must be competition and hand thing that's what border regions as that's what the unanimous decision in american needle says that's what professional engineers says every case has said that and the reason is if there is something special about the n c a a that is deserves not to be subject to the antitrust laws that's a congressional policy determination it's not something this court has the ability to weigh against a competition mandate that's under the rule or reason i would also say your honor we have looked at these claims from the n c a a over and over again that each loss was going to hurt college sports and destroy this riviere tradition it's never happened how do you think that the product that is produced by the top football basketball schools has a distinctive characteristic and if so what is  characteristic i think it is what the court found is that students play in the games which is a distinction from professional sports i think that's what all the witnesses in the n c a a testified to that's what the survey evidence suggests so i believe that is did distinction and of course we're not challenging any restrictions or rules regarding that they have to be students and in fact the education related benefits here would help them to succeed bargain i think the injunction allows the n c a a and this was alluded to to set reasonable rules to define what the education benefits are and how they are related to education  competition in making a better education experience for the athletes which mark m ed the president of the n c a a publicly declared after we won that this was a good thing again think that what the district court and guarantee not to lose a scholarship if they're injured and guarantee to wish in room and board for a certain number of years after eligibility so that they would be able to graduate place i believe that might not survive all reason scrutiny but i try to hold don't compel school to do anything any idea is allowed the markets to decide what school to have the choice to any broader relief than that already provided by the district court correct that is correct or are you not asking us to address the issues that justice alito or others including justice kavanaugh have raised  on whether or not there should be any limits educational or not an educational you're happy with the injunction you got we are not asking for border relieved when a firm a new rulings go up our number  two generally speaking antitrust or tsunami get into the business of pricing ministration why are the at the limits of the injunction below of academic achievement awards at a fixed that whatever the n c a a rules allow to give to athletes now in a pay for play if you wait a ballgame if you're the m v p if you have some other achievement they allow you to get five thousand eight hundred and eighty dollars the court said then you can see a usual monopsony power in the labor market to prevent the schools and conferences from giving as much not more as much as they old ready allowed so this is not judicial price fixing this is just taking the n c a a s determinations and saying you can i recognize that you didn't cross potential and i can't believe that you think that this five thousand nine hundred and eighty dollars award was the limit of where the district court could have gone so i just thought you know on  record here's the question on this record how high could the district court have gone before a compromise in consumer demand for college sports so your order is correct we advocated for  advocated the n c a a should not impose the restriction it should be left to the individual purposes who don't have market power they don't have enough city to decide if any rules were needed but secondarily we put in consumer survey evidence that had a minimum we showed that consumers said they were perfectly for and they would keep watching sports if they got a ten thousand dollars order for academic achievers see using the to fifteen thousand we did not put in a survey evidence for war then ten thousand dollars but what we did put in is that the schools already do like fifty thousand dollars for protection against war individual aspects of covenants not to compete amongst joint venture participants because they're creating a new product that wouldn't otherwise be available in a market and that the rule of reason should be pretty light and the planet bears a heavy burden to show that a covenant not to compete violates the sherman act this case the th circuit the district court applied a pretty searching inquiry on covenants each an individual aspect of them what in your view as a matter of law forget about the facts for a moment makes that kind of searching inquiry appropriate so i believe you're on earth that the court has been very consistent in every joint venture case whether it is american nino or whether it is dogger or whether it is broadcast music that the remedy for joint ventures is the traditional rule of reason even when it's doing things that would otherwise be subject to per se rules or quick look rules or something like that and the rule of reason that we have found can accommodate that that's been a one hundred years under jurisprudence let me just stop you there does it have something to do with the fact that th there's no way for a competition to show if the n g s every shifting decisions not stable decisions on what type to two to pay for play is pro competitive and not pro competitive it just can impose it will and under rule of reason we do balance things together ultimately it's a balancing analysis and the greater the market power the group collectively and this should not a single firm cage the collective market power in this labor market i do believe that justifies have leash the application of the traditional rule of reason which is a whole that was applied here and in particular your honor i think footnote six of american needle if we rule in your favor in this case is just to some of my work correctly pointed out you're asking for a narrow ruling here but the rationale behind that ruling could generate a follow on when a geisha and what in your view is the end game of this litigation if you got this particular one the geisha and bud of future litigation is the end game collective bargaining is the end game legislation i think this picks up on just as priors questions as well so your order is difficult to me to predict legislation or collective bargaining but i would talk about antitrust and game in antitrust and again it's simply to apply the rule of reason which the n c a a has been subject to for at least thirty seven years which is all the sports leagues are subject to but if you what are interrupt your position i think in the district court or was that all the compensation limits are contrary to the rule of reason correct yes that i or that as a matter of fact and they've down one on that is to twice as a matter of fact of the rule or reason and facts would probably have to change further for a different result to happen if there were a new material back in the future then you know under antitrust law the rule or reason could come out differently at a future date but i have no reason to think that i would win today o you just as for mr kessler the tendered to me when i read it of both the district court and circuit opinions is that they were trying not to do too much and this kind of thing goes back to justice briar's description of you know this is a delicate area on the one hand there's concern about blowing up the c w and something that people of just are brought to justice by a put it gotten so much joy out of but then you know messing up general antitrust law so it seemed to me that the lower court opinions were kind of saying like the educational expenses weren't that big of a deal the cash wasn't that high and them out you yourself described the injunction is narrow and an effort by the court to give that and c w a as much leeway as possible is how you put it in your brain so given all of that how is how is the injunction a substantially less restrictive alternative or do you disagree that it had to be substantially less restrictive and just had to be less related to education and it said that what it can't justify what he can't do is just education related restraints but the reason we know it's substantially less restrictive is because are all life changing benefits for these athlete that will be provided the vocational schools we're talking about is if you don't graduate as many of these athletes don't that maybe they can go to a blue collar vocational school and at least have a career if their earnings all of these billions of dollars the n t a won't allow that it's life changing if you can get a local interned ship which every other student can get on campus x shaft for these athletes who work fifty hours a week before they attend a certain class so your honor i think it is substantially less restrictive it will be life changing for these athletes and most importantly it's what the facts lead to on the normal mr kessler thank you for the district court here found as a matter of fact that the n c a a s restraints on education related benefits cannot be justified as a reasonable necessary  special that is for congress not the courts the rule of reason already provides ample latitude with joint ventures to organizations like this to sports leagues to as short of what you traditional standard for assessing antitrust liability and the lower courts properly applied that framework to the facts found by the district court usually a per se rule would prevent competitors from arguing that their horizontal agreements not to pay their workforce are pro competitive but the lower courts here following board of regents correctly gave the n c doubling the opportunity to show that compensation rules fuel consumer interest in college sports a courts ultimately help out most of the challenge for struction under the rule of reason petitioner now to avoid that in our all together they asked this court to uphold the restraints on educational benefits only under what they call a quick look or deferential review it seems to me is to substitute the courts of you for the business judgment of the people responsible for a joint venture that we have upheld as pro competitive and i just don't know if the judge is the best three inquiry into a less restrictive alternative the lower court here were very clear they were not seeking to impose marginal rule changes on the m p them away they said that this was a patently inexplicably more restrictive set of rules them if necessary so i think so i think that the way to resolve this by giving credence to the pro competitive justification that was asserted here at the idea is that these rules really do help to differentiate the product in the eyes of consumers and ultimately applying that standard here the district court upheld most of the compensation for all the so it found that in fact with respect to all of the limits on compensation that are unrelated to education consumers actually pay attention to that and thinking of college sports as something distinct and different but i think where the and see that goes wrong is in that they analysis should be based on its own perspective of what it thinks supports damager at them because amateurism is not its own free floating ideal under the antitrust laws it's not something that the competition last focus on to aspire to in and of its argument but if they were able to make that showing that i think it's very much properly assessed by an antitrust court to see whether the significant anti competitive effects are justified and ultimately if they're not justified and that means that there has to be greater competition there's nothing inherently a joint venture sometimes can have a non economic sometimes as well as an economic objective to the word reason means reason and when you consider whether  a rule is own reasonable because there is a less restrictive alternative take into account non economic reasons impossibility of measuring everything against consumer over and over again that those types of non economic interests are not cognizable under the antitrust laws the court shouldn't be in the business of trying to evaluate whether there are other socially important ideals to be promoted or other things to consider that don't go to affect some competition that's obviously something congress to consider if there are special rules that are needed in this context to take account of those kinds of non economic interests and congress is well positioned to assess that and draw the right lines but to actually try to incorporate that into sherman act analysis would be at odds with precedent and i think it would open up the doors to having to balance host of considerations that are properly assessed when you're looking at whether or not something is on balance anti competitive thank you factual findings here is the things that the court said to find the product were principally the fact that the students are bonafide students at the school and also that they're not paid to play in the form of receiving compensation that unrelated to education i don't think it mission justice alito i think that it's going to turn on this actual factual inquiry into what consumers think about when they're differentiating college sports from professional sports but at least based on the evidence of the district court received and those are the factual findings that disputing that these restrictions have enormous consequences in the market for student athlete labor and i think that actually shows why the rule that petitioners are asking for this idea of quick look reveals would be so anomalous given the nature of these restrain from the severe anti whether that kind of lead that organizes to try to create in a distinct product is actually exercising the kind of power that can produce a substantial anti competitive effect that satisfies the burden at step one or just a sort of my ar game as it exists meaning we're being told by mr waxman that all of these educational related payments can become extravagant and as a result be viewed by the public as pay for play any thinks would come after the fat after the game has been after amateurism has been destroyed in college sports how do we ensure that doesn't happen so i think that this interpretation of the injunction that mr waxman offered is overly broad and doesn't accord with the district court's factual findings or what it actually ordered in this case i recognize the concern about destroying college sports and it is at odds with the legal standards the point applied in its ultimate conclusions here it upheld most of the challenge restraints and said that the n p double a could continue to cap compensation is entirely unrelated to education and with respect to the scope of the injunction itself the court was focused on legitimate educational expenses and that is what the th circuit said and i think it of course but the factual findings that from the perspective of consumers with respect to that cash payments for education even if they were in the form of academic awards could start to blur the distinction between college and professional sports and no one seeking to challenge that is clearly erroneous with respect to the actual amount it's i think critical to recognize that the co focused on the fact that the students are already eligible for athletic awards and that same amount so the court as mr kessler said wasn't setting a specific price that was saying hey the students can already get back at athletic awards and it's not suppressing demand it's not dollars was essentially taken out of thin air that it's arbitrary i mean you mentioned it was designed to match these athletic awards but as far as i know there's no evidence that any single player has ever received that amount in the athletic awards wasn't the court just looking for any number to you know hang its hat on but that the one it came up with was essentially arbitrary i don't think it's right to characterize it as arbitrary and i think the key here is to recognize that this is just making the students eligible for awards for that amount and there's no suggestion in a different course injunction that every dude and automatically can receive one of these the boards just for playing on a team that the law that mr waxman attempted to put on it but there's nothing in the injunction that prevents the infeasible a from in forcing criteria for example on whether there should be actual benchmark thirty p a to make sure that these the board actually reward academic achievement and aren't used as disguise the paper by painting it the way i think it is well grounded in the factual findings and importantly no one seeking to challenge those here and it doesn't show that there is any problem with the legal analysis that the court applied i asked mr custer the same question i'll ask you do you think on this record the district court could have gone further i think potentially based on the evidence that came in the district court could have made a factual finding that higher payments but employer the distinction between professional and college sports but what see if you disagree to any of this and if so please tell me why that normally this court is come to recognize that and so the restraints and joint ventures including price restraints territorial restraints are pro competitive and deserve a very light look from courts because the joint venture creates a new product that wouldn't otherwise exist and that is pro competitive we recognize though that that's assuming a competitive market and what differentiates this case is that the n c a a is the market for student athlete labor and as monopsony control and so that that unique feature is what justifies the more searching inquiry that took place in this case and it might be a very different case if there were multiple leagues for here conferences that had risen restrictions on price that are paid to student athletes and that some conferences without a market power for example might be able to do that fully comply with the any trust laws is just that you can't set one rule for the whole market i think i agree with almost everything you said just of course session with one small modification which is that i don't think it's quite accurate to say that join get a light look but i think what normally happens is that the plaintiffs seeking to challenge the joint venture under the rule of reason might not be able to show the times of market power that demonstrates that there is a substantial anti competitive attack so i think that he's in to exactly what you competitive market and there would be a very different case for example one individual or a number of individual conferences had restrictions like this impacts the whole the market that's exactly right and in fact the district court's injunction permit the conferences to set their own limits and recognition that the conferences can tailor compensation limits or educational benefits and a student who is unhappy with what he or she can get from one conference and go and speak out on petition from another conference so i do think that with dramatically general preorder the label of education related benefits i think mr waxman would say is being stretched here and that this is really going to turn into circuit consider this argument expressly and said that interpreting the injunction to authorize champagne mincer illegitimate benefits is not an accurate representation the district court here was clearly focused on legitimate educational benefits  these benefits are normally confined to their actual value they're usually provided in kind and so things like the five hundred thousand dollars paid internship to us internship wouldn't qualify wouldn't fall within the scope of the injunction at the outset but in any  if there's any confusion on the score if there is ambiguity a district court specifically invited b and c that the way to define what benefits are reasonably related to education and there is no reason to think that the district court would reject a definition that that  educational benefits that are tied to their actual values so i think that's kind of an inherent constraining feature of this injunction is certainly true that some of these benefits like graduate scholarships and so forth might be worth quite a lot to the students but there and apparently limited by actual value which is court performed step two so it balanced the competition in the labor market against the market for college sports and i understand about the way the case came to us because that's the framework the lower courts used in the one in which the parties agreed but some criticized it so i'm wondering if you think it is performing any kind of distorting effect that would influence the way we think about this case in a bad way so this issue across market balancing raises and under what circumstances cross market balancing can be considered but i don't know too that i think the parties took their lead from board of regents because there the court did clearly contemplate that a program method of justification could be based on the idea of preserving college as a distinct product and seem to think that that would justify restraints in this market so for that reason either urge the court to to leave for another day in the broader questions about how cross market balancing should be conducted thank you general  you mr chief justice if i could just leave the court with one overarching thought it's it's best petitioners are wrong to argue that any restrictions related to their conception of amateurism including their horizontal price fixing agreements must be upheld without analysis rather than applying the rule of reason that would be an extraordinary departure from traditional antitrust principles amateurism is relevant here only in so far as petitioners can actually show that it increases consumer choice by distinguishing college sports from professional sports and they made the show ends with the perspective of most of their compensation rules but in a factual matter they couldn't make a showing with respect to educational benefit so there is no pro competitive mr chief justice just to score such monopsony power does not take away the producer's right to define the product anymore for the n c double a then for example for the little league which eight years ago got eighty million dollars for its television contract there is no argument here that the rule of reason shouldn't be applied to our point is that the rule of reason requires that disease restraints be accepted because today the product is clearly pro competitive and the wrist the the courts to creepy essential remakes the pro competitive feature of the product itself and so justice brier this is not an ordinary product or an ordinary market this is education and cases  like lars and goldfarb make clear that we're actors are not purely economic but are also attempting to achieve other purposes certain rules and restrictions are applied differently then to poor commercial  enterprises and the restraint here or you're worried about technology cases and everything this is as the government acknowledges is the rare case in which the risk that challenge to restrain is  competitive differentiating feature of the product net consumer demand is not the test even if the courts less restrictive alternative would preserve the distinction and it clearly reduces the distraction and therefore it's not as effective in preserving the benefits of our conception of amateurism otherwise courts can use less restrictive alternatives to chip away at a joint ventures business judgments until eventually the differentiation is barely discernible at quest at step three the question has to be whether there is a less restrictive alternative that's as effective in preserving the n c double a conception not one that's as effective in preserving some kind of differentiation between the n c double and pro sports just focusing on differentiation as an abstract conception would allow courts to completely replace a business's product with one of the court's own making as long as it was still differentiated at step three a the less restrictive alternative hastur preserve the same type and degree of benefit shown at step three and so once it's determined that no pay amateurism differentiates and is therefore pro competitive and he trusts law doesn't require a producer to adopt an alternative that reduces the differentiation or replaces it with a different differentiation altogether once cards scored start drawing their own lines and according to the government here everything factual and depends on the record perpetual litigation and judicial superintendents are inevitable just the five thousand nine hundred and eighty dollars that has so captured the court's imagination this morning require months of post trial litigation in front of this judicial superintendent just to figure out what that number is for the time being thank you thank you counsel the case is submitted