our fifth case this morning is deputy versus the n c to lake hughes seventeen seventeen eleven the not revenue athletes so the athletes in many sports such as division one football and basketball to basically have the same rights as athletes and non revenue sports and not to have extra restrictions placed on them and order to protect the economic motivations of the colleges so in this particular example and when you talk about free agency non revenue athletes such as track athletes get a one time exemption from the year in residence by law but those in the schools that are the richest and have money to protect so to speak from their football programs or basketball programs are restricted from transferrin without getting a waiver from and stubble a witch and stubble a does not regularly grant and actually rarely grants so for example with respect to your residence by law the question that this court posed and agnew are rather by laws are inherently are obviously necessary for the preservation of amateurism the student athlete or the general product of college football and we believe that in the first instance your residence by law does not fit within that eligibility category and in fact here the district court did not look at all the allegations of the complaint the district court took into consideration two facts one that the year in residence baila is listed in a section of the and subways manual entitled eligib particular category of student athlete is eligible to apply however in the agora this court also said that that pro competitive presumption does not automatically make it lawful in fact this court went on to say that the question is about there that rule whether it's eligibility or not is helping to preserve a tradition that might otherwise die that tradition here is not implicated by this y residence by law for example it does not implicate whether a student must attend class whether a student must maintain a certain number of hours which would go to the academic purposes or of a student athlete does not indicate whether or not the student athlete can enter professional draft whether it can receive he can receive compensation beyond the cost of attendance those are the types of rules and in fact the ninth circuit recently went through a fairly lengthy history of the types of rules that the answer to the way has traditionally implemented that do in fact go to this issue of whether it's preserving the product so to speak of college with the anti poaching r not make the rule patently lawful and in fact on board of regents the supreme court side and no twenty three that even good intentions does not make up for it by the end does not make a rule patently lawful and in fact board of regents agnew and america media all say that this twinkling of an eye approach this program credit of presumption approach is actually an application of the rule of reason and the rule of reason has a third component and that component is are there less restrictive ways to implement a rule that perhaps does address your honor's concern about free agency or anti poaching and in fact that's why and i think that the exceptions to the rule illustrate that there are less restrictive ways we've alleged that for example the non revenue sports are not subject to this that division one football players and f b s which is the division one a so to speak of football can transfer to division two they can then there are exceptions to the rule the only folks that are restricted from moving in are those that want to transfer within division division one f b s so so you're actually asking us to retreat from the strong presumption dicta and actually what this court did was back away with end to after disgust as board of regents when it discusses the context in which the pro competitive presumption is seen in this court and said that there should be applied and whether that or not that by law is in fact in the twinkling of an eye preserving the status of an amateur and preserving academic consideration well that was that no constraint on on on their ability to play you know because of that the rule tends to preserve the nature of  adventure and student oriented athletics so you know college have fun at athletics or at retaining at least some semblance of being a god education by the concurrence most recently in berger the economic realities of revenue producing sports means that we can't just give the n c double a a free pass and if we don't follow through with the rule of reason analysis which does have a eligibility rule therefore we think that here we're not necessarily asking for nor has the n c overlay said that this is a free you know way to combat free agency in particular circumstances whether the in fact what we've is that the way it's been applied is to protect only those division one sports that are generating the most money and for the most powerful teams in the league and if so i you look at the exceptions there are less restrictive alternatives to address your honor's point and concern about free agenc the district court did not get to the additional arguments at the end c w a made if your honour's would like me to get to additional points that the court could consider on a do no review and those are plaintiff has alleged injury to competition plaintiff has alleged and the sherman act does apply to all unsuitably bylaws and i think that's a fairly uncontroversial point from the court's analysis and agnew and finally plaintiff does have and i trust standing virtue of the fact that he is a current student athletes who has been prevented from transferrin and continuing to play football a reserve the remainder of my temper about oh thank you thank you  good morning they have pleased the court a name is greg kirchner i represent the national collegiate athletic association like to start if i may with what seem to be to be a couple of practical questions and one is the question who can play in a particular sporting contest of an inner collegiate nature the rule in question the bylaw in question answers that question it lets us know who can be a punter on saturday and who can't  yes there might be more punters or there might be more running backs if you could play with a one point eight instead of a two point one great point average but but that does not raise and i trust question that there's an implication of that rather simple question that i just posed and that is for everybody who every person who can play every young man or young woman in intercollegiate sports there's necessarily somebody else who can't kick on saturday  who might want to there's a lot of people who play high school sports who don't get to play college sports there's a lot of people who play college sports ninety nine percent of them in fact who don't get to go on to play professional sports the second kind of practical question i would like to pose is who should decide these questions and i think that's really the legal question in the policy question presented to this court and which is largely previously been answered question i would say that this court is squarely in the mainstream both the with agnew and buyers it's two prior opinions it's more recent opinion involving a different issue in baxter and the third circuit reached the same outcome that i'm urging and that the lower court reached in the smith vs n c a a case where they found a eligibility rule involving transfer with a graduate students could play at a different school than their original school they said that's an eligibility school rule and that it was reasonable per se as a matter of law that's squarely the same as the outcome we're seeking here and the fifth circuit reached the same result in a case involving pay for players that made them in eligible o'bannon out of the ninth circuit involves a different set of rules more of the kind was rules as to what i mean and they were rules as found by the district court there that dealt with whether players shoot could or should be paid for the use of their name image and likeness and the sorry a different issue yes sir it's clearly a different issue a different issue here now these same plaintiffs in egg do in fact same counsel because i was here as  well argued that the rules in mccormick smith and buyers were eligibility rules and and in fact the agnew opinion says at three forty two plaintiffs argue that the presumption should be limited to eligibility rules that was what the same counsel argued to this court and that they were eligibility rules and in  drawing a distinction between the rules that issue there and they tried to limit the presumption and in fact for the for the court judge did limit the presumption but he clearly said that it exists and he clearly said that it applies here seek to craft a different role they seek to take some language out of context and extract it from the opinion in new to create to in effect reverse agnew and reverse the presumption that would do away with the rule and now it's there and would do away with the policy underlying that rule that has led the supreme court to say that these kinds of rules can be validated in the twinkling of an eye and supreme court said that not only once in board of regents but went out of its way to say that again justice stevens in his really swansong on the court  and i trust issues said so again that they can be used in applied in the twinkling of an eye that that just means at a motion to dismiss days i think that's what that means i this is a very interesting question  fortunately you don't have to answer it here but you know how we interpret it and and yes it very absolutely true and that's what certainly how the third circuit interpreted it in smith and the fifth circuit in mccormick and so i be some not to speak and argued just a little bit ago and this kind of was a new argument that the less restrictive alternative prong of the rule of reason provides a way out of this presumption and i want to say that that's a clear mistake of law that's just not correct you do not reach the less restrictive alternative branch of the rule of reason unless the plaintiff has successfully gotten to the through the first two or two and a half steps and that's to find a unreasonable restraint of trade in a properly defined market that has adverse effects on competition and not just competitors and that the balance of harm  clearly tips in favor of the risks strange and against whatever pro competitive justifications are offered we don't need to reach any of those questions here and you would only reach those  only reach the less restrictive alternative if you had gotten through all those questions this presumption helps answer the question of who should decide do we want the and i trust courts making decisions about who should play on saturday or do we want educators at the schools the n c a a is run by its members it's a membership led organization they sit they have committees they study these things and the fact that they have some other rules that are a little more liberal than the rules for football means that the people have decided rationally they could decide that that some sports need the problem solved and some sports do not in fact the the rule that was that issue in smith that prohibited graduate transfers has been relaxed since then somewhat but things change over time and that that is  something to be welcomed and celebrated and a basis for applying this presumption because the rules can change over time as circumstances change as people change as the student athletes change as the schools change and so these rules are very complicated and they interact with other rules and the and i trust courts are not well suited for dealing with them and the concept of less treated as conclusive by the third circuit in smith and by the fifth circuit in mccormick i think that's what the supreme court meant when he used twinkling of an eye on two different occasions but i as again again i don't think you have to answer that question i think it's it's an interesting legal question but we're not presented with it here because the plaintiff has not alleged any basis for rebutting the presumption or for  ding or avoiding the application of the presumption this is clearly an eligibility rule it's of the same old as those that have been found to be presumed to be reasonable and so we don't need to answer that question is my answer there's a couple of points i'd like to raise if i may which may not be clear from the briefs on the record one and we did mention this in our brief brief they dropped when and added if they did so outside the quotation marks but they did change the meaning and in their reply brief which we did not get to respond to at page five they dropped a but from the beginning of the sentence and began their quote with the word if and so i go all i know is that when i learn to read sentences if one begins with the word thought and then goes to if that means you better darn well look at the sentence that came before it and the text and as judge farmstead in agnew the context are particularly important here and so they attempt to construct a test that is not a test  what they want to say is that the burden is reversed and on the n c a a to prove every rule in its book is necessary and that the intercollegiate sports will die unless that rule is maintained that is not what  the text or the context of agnew or any of the other cases say so so the text history is important another thing that is maybe not quite obvious is  that they argue that mr deputy would have lost a year of eligibility the rules are that everybody gets five years of eligibility and can play four years during that five year window so they already everybody has one year to burn in any event many people use it for what's called red shirting and mr deputy had already redshirted his first year and the end didn't play although he was on the team so he had no more years to burn and it is true that the transfer rule would have cost him his a second year of eligibility but in most cases that is not the case many people transfer sit out a year and use their redshirt year for that so the rule does not have the effect that they say another argument that they make that i think is inappropriate on this record is they say but for the rule there would be three quote unquote thousands more scholarships available that's not accurate the other count of their complaint attacked and criticize the cap on the number of scholarships but they dropped that and it was it's now been dismissed with prejudice it's not before this court so the limit on the number of scholarships of eighty five per team is not before the court and they can't argue its absence as part of this record so the number of scholarships on this record is given the number of positions on the team is given there's no way that more could be created by the absence of this rule now it is true that if this rule didn't exist people might move around more we don't know for sure but they do allege that there would be greater mobility and that's why we raise the specter of a free market or free agency market  a and its members can reasonably want to limit that in sports that already have a fair degree of commercialisation risk associated with them if once these inner collegiate games to be played in an educational context by students against students and it can jud imminently and rationally want to prohibit the creation of free agency where games are played under the college banner by free agents against free agents council essentially concedes this when they say that we could legitimately prohibit some of  trucked school transfers by some less restrictive rule that's enough right there to say that the rule has some rational basis and then the ample latitude to call for by the supreme court says that th of his schools that he attended was never offered one by iowa or anyone else and in the page twenty one of the transcript in the district court judge pratt asked counsel that question and they conceded that that that was the case and finally no i'm out of time at page fifteen of their reply brief they say that he's quote unquote a current student they never allege that they were given opportunity to leave  they were given leave to a man by the district judge they could have alleged that and it would have solved their standing problems perhaps but they chose not to avail themselves of that opportunity so on this record we don't know his status was when he filed the lawsuit thank you very much thank you for speaking the four minutes left restraints would normally be held her say illegal it was not going to apply a purse a illegality presumption to the n c double a spy lies because some some manner of agreement was necessary in a sports  therefore this idea that under the rule of reason we should not get to zero the prongs should not be applied here when we're talking about three elements but the court should go through it well but the later analysis do not kick in unless there is an establishment of anticompetitive notice and you can't get over that unless you are get to that point unless you establish or overcome the presumption of pro eligibility i'm talking about what it is in fact not what it's called it's clearly an eligibility rule you've conceded that from this podium so it's got the program planted of perception and unless you've got something to overcome that presumption then you don't get to the later steps of the rule of reason analysis the next step in the rule of reason now is you don't get to that unless you establish you have something that overcomes the presumption here this rule is presumed to be pro competitive you have to prove it other or establish point to allegations in your complaint that establish if true but it's not an eligibility rule actually if we could back up your honor and the idea that in the twinkling of an eye we could get rid of certain by laws that on their face establish what it means to be an amateur or to be a student right and those include eligibility rules this supreme court outlined in board of regents as to the rules that would establish whether someone is a student or whether someone is an amateur those rules are those that are fundamental that we would all agree for example amateurs can't be traded conceded up here today that one of those rules has already been relaxed the one that came up and whether it was a graduate student versus an underpaid point for an undergraduate team cetera that doesn't make any difference here i think it does your honor in the sense very broad good intention does not mean that all laws or all by by laws regarding a particular issue should be given a free pass and that's a board of regents in the supreme court said in footnote twenty three and i would also just respond to a point that was asked earlier about whether the seventh circuit is an outlier the third circuit actually and smith did not i see my time is up i would just say that the third circuit never got to the issue that we're speaking of today th