the court with the court's permission may i reserve eight minutes for rebuttal certainly manage your own time paid in the ensuing one hundred ten years the association has it here due to its foundational rules that student athletes pursue their education and that they receive no r eration other than for the purpose of reimbursing the expenses of doing so until the decision below no court had ever found that the any trust laws condemn a rule whose purpose and design is to protect amateurism even before the supreme court set out its framework and board of regents the courts uniformly recognized that the anti trust law does not constrain such rules now in this case although not in others that they have brought the class argues that it is not attacking the rules that prohibit pay for play but that is precisely what they are doing there is no n c double a rule dealing with nil rights plaintiff's objection is to the rules that bar all forms of pe and thus preserve amateurism in college sports now the district court agreed that rules that protect amateurism are justified but it nonetheless found a sherman act violation because  court believed that amateurism could be maintained through a suppose it less restrictive alternative but the court made that determination only beat by redefining amateurism discarding the central principle that the actually as board of regents put it quote must not be paid in favor of a new rule that student athletes can be paid a modest amount whatever that is so why not permit schools to pay eight thousand dollars a year that we're building is the n c a a now only challenging that portion of the judges rule that goes to the five thousand dollars and trost no we challenged both portions of the rule although for somewhat different somewhat different results but the but the prior rule wouldn't seem to fit the criteria that you've just described well because of because it's related to the expense of the of attending attending school so yes your honor so first of all i think we're at war here appealing an injunction and prior to the time that the court ruled the n c double a had been considering request from several of its conferences to raise the level of reimbursement of reasonable expenses from what's referred to as g i a to what is referred to as the cost of attendance and it agreed that it would permitted schools to do so so in any event there is no warrant for the court's imposition of an injunction but in any event even if that portion of the of the courts of the discords really moot no it's not because the district court's ruling in this is the court's error the district court's ruling that the n c double way not prohibit a preclusion of sharing a specific commercial revenue stream assuming hypothetically that one existed that is the stream of revenue that the schools receive for these so called and i l rights of the athletes it is inconsistent with rules of principles of amateurism and here i'm not only speaking about the n c double a's rules but as the record in this case reflects the rules of every other amateur sports organization that either party identified that athletes may not be paid a specific share of a dedicated commercial revenue stream so if this were a challenge i think that if i can sort of summarize my answer if this were a challenge just flat out two or rule that said you aren't paying the full amount of the reasonable expenses of attending college and the pavement of the full amount of reasonable expenses of attending college is not inconsistent with the principle of amateurism as you address it we would have a different case and we would have to defend that under a rule of reason or at least i think that's what we would have to do but this is a situation in which a judge has said no the afa leitz must be allowed to share in the specific revenue stream that derives from their respect rights of the n c double a rule doesn't permit athletes to receive to be paid to play that is to receive money that is for the n c double way that association of eleven hundred educational institutions to make not for a judge and federal any trust judge to decide well i think it's x i think it's why the simple differences permissive vs mandatory it's permissible for the association given the quote ample latitude that the supreme court has said it has to have in the maintenance of the preservation of the tradition of amateurism to define the level of reasonable compensate compensation for reasonable expenses that you understand the district court has taken upon itself of the task of defining what constitutes reasonable expenses it is that would be that would be forced in in future proceedings well it not only would be enforced in future proceedings judge bybee but i dare say that the next case will come along and say well you know three expenses are now included but travel expenses aren't included and we think that travel expenses are reasonable cost is the n c a a current rule concerning c e o way is that is that that's not mandatory on the schools  t is that is permitted for the schools to go up to that amount but they don't have to is that correct yes there are and there's the district courts rule mandate that schools pay that no no the district court simply says that the n c double a cannot have a rule ok that proscribes courts rule that is very similar to the n c a a rule though the interpretation of what constitutes the oh i may differ that's right and i think you know as a thought exercise think of what would happen let's assume and hope this doesn't come to bear but let's assume that you agree this court agrees and perhaps the supreme court agrees that well because we're allowing scholarships up to a certain amount if you know that the n c double a hasn't convinced us that you know it is preserving amateurism as amateurism was originally defined so the n c double a goes back and says you know what we really do care about this we are trying to preserve the sport which is after all what this is about as amateur athletics and so we are simply going to require the division three model or the ivy league model of all schools that is students get in we can try to recruit athletes but no one gets any athletic scholarships you get scholarships based on need if the school has sufficient resources to provide it under the under the plaintiff's theory in this case and i think under under the district judges rationale that would be a violation of the any trust laws because you know why not provide them all the reasonable expenses of going to college the point is that this is a product it's a gimmick no one would contend that if the n c double a just decided that we're not going to offer athletic scholarships which is the rule that existed in one thousand nine hundred six when the rules were first permitted and instead were simply going to win dorce the rules that we have for division three that that would be a violation of the any trust laws it's in can't be the role of a nanny trust court to essentially redefine the rules of eligibility that define the nature of the amateur athletics there are amateur leagues which permit reimbursement of expenses as the league defines what expenses can be reimbursed there are amateur leagues where no expenses are reimbursed you common you buy your own sneakers and you pay your own way to the game but in in no amateur way a mature league that the record reflects in this case or i daresay that exists are athletes permitted to be paid to play either in the form of a share of commercial publicity rights to the extent that they exist in this case and we think they don't or let's say they you know let's say somebody the school decide if somebody said well why should what's wrong with the school saying well you know everybody will get one hundred dollars per tackle or five hundred dollars per touchdown or to make it harder for me five hundred dollars for touchdown up to the cost of attendance that is not permitted by the n c double a's rules and the notion that  any trust court would say i don't really see how that violates the rules of amateurism it just doesn't compute this is what we're talking about here is a product amateur athletics as i said that the n c devil a didn't invent but was created for the purpose of applying to intercollegiate athletics in light of regime as is counted in the record in the briefs in which some schools were paying athletes to play or allowing professors to play or whoever would sort of win the game and recruit athletes away from other schools the point of creating the n c double a was preserve to create and preserve the model of amateur athletics and as the board of regents as the supreme court and board of regents said and as at least three circuits have adopted when a rule of the n c double a is challenge to the first as the seventh circuit said the first and perhaps the only question to be asked and i'm quoting from footnote seven of a is quote whether a rule on its face is supportive of the no payment or student athlete model and on that basis the third circuit in smith the fifth circuit in mccormick and a number of district courts have dismissed at the motion to dismiss stage any trust sherman act challenges to rules that were manifestly on their face designed to preserve the model of amateurism and that's what we have here this is not a quote this case doesn't involve a question and it is not within the a through of your rules and mccormack we're really quite different from is the question of whether you've got a fifth year of eligibility or another year of eligibility to transfer is very different from a rule from rules that govern scholarships and it's clear that you've got financial transactions going on here that are of great importance to both sides well what we're talking about here is not a rule that involves scholarships we're talking about a rule regarding eligibility and mccormack by the way was a rule involving conduct of i think it was southern methodist applying some sort of excessive or providing excess every revenue of some sort the opinion doesn't say that with the athletic with the you know that was the death penalty for f m you that was that was a boundary maintenance question for the n c a a by an institution having to do with the individual players well no the institution that is the university was providing compensation to athletes a ball of the n c double a's rules above the joint ventures rules about what it means to be an amateur it didn't involve this particular rule but the the inquiry that the supreme court laid out in board of regents is when there is a challenge to an n c double a rule you ask the first question is is this a rule that is in the but small of rules that define the eligibility of the participants if the answer is no as it wasn't in board of regents because it involved an ancillary rule about the level of television broadcasting expenses then you go to rule of reason analysis but if it does fit in the same mold as do rules defining the eligibility of participants it is lawful as a matter of law and as the court subsequently stated in a american needle rules like this can be affirmed in the twinkling of an eye this is not a question judge bybee of whether this is really a rule that sits fits in the same mold as the rules that the supreme court was talking about in board of regents this is the molten core of the rule this says this is a rule that simply says in the product that we have athletes cannot be paid and we define what pe constitutes and as the supreme court said there is no question there should be no question that the n c double a should have ample latitude in performing the critical role in the maintenance of a revered tradition of amateur sports and that preservation of that product quote is entirely consistent with the sherman act what we're talking about here is a rule designed to maintain athletics in a higher education setting tethered to higher education values that educate students who might otherwise not have access to this education and those are substantial values that the supreme court has said deserve very substantial deference and that's really what's at issue in this case now i do want to i mean we've we've articulated a lot of other reasons why we think that the district judge erred in this case but i would like to just spend a few minutes talking about the rule of reason analysis that she engaged in because even if you agree with the if you disagree with us that a quick look will reveal the only question that has to be answered which is this is this is a rule that fits in the same mold as rules defining the eligibility of participants she aired with all due respect the district court erred on all three steps of the rule of reason prong first of all under the rule of reason and in this court in the supreme court to be to be valid a restraint need only be reasonably necessary to achieve the pro competitive and so the inquiry is not whether her rule was reasonable the question is whether the n c double a's rule of no pay for play no one is so inconsistent with its objective of preserving amateur athletics that it violates the rule now there's a familiar three or four step process the first step for choirs the plaintiffs to show that there are significant anti competitive harms the court erred in finding that there are no anti competitive harms significant or not that are demonstrated in the record in this case in the first place as our brief points out ass student athletes would not be paid for noodle apps rights absent the rules because there is no so there are no such thing as nil rights in broadcast games and they have no authority to th e record shows that that new rights are referred to in various contracts and that may be a that may be a matter of of sort of defense on both sides that is the maybe you made the point that the sides are saying we don't know whether these rights actually exist complicated question but we're going to account for them anyway just in case that doesn't mean that they don't have value the value may not have been established yet by law but the fact that the parties are contracting about that may indicate that they may have some value judged by it is the plaintiff's burden at this stage of the rule of reason process to prove that there is a substantial a significant competitive car that it exists and this  precedents reinforced the principle that speculative farms that may or may not exist are not substantial harms that the any trust laws care about there is no jurisdiction there is no state in the united states that that permits the enforcement of that recognizes the enforcement of rights of football a city invents of public interest including athletic contests or rebroadcast of athletic killer case of those are very lucrative ok so the way we did the reason that they were entitled they would receive nothing in video games is two fold first of all as the briefs explain and i can did and we've cited the court to the portions of the record the n c double a always had a rule that precluded any of its licensees from making any use of the name image and likeness of athletes that was expressed that was an expressed provision of the contract with electronic arts that you addressed in cash in the keller case when when electronic arts started to find ways to make it much easier for people who wanted to play the game to identify an avatar with a particular player the record shows that the n c double a became very concerned and in fact refused to renew the contract because it believed although e a disagreed that it was violating the letter of the condition of  make one point and then go to the to the least restrictive alternative if i may the standard for and any issuance of an any trust injunction that is the remedy that she applied in this case there are no damages sought in this particular case is and i'm quoting from the supreme court's decision in zenith whether there is a quote significant threat of injury from an impending violation of the any trust laws or from a contemporary violation that is likely to continue or recur and not with respect to video games neither of those is true if there ever were a day and i can assure the court that there will not be in which the n c double a decides to cast aside its rule that its athletes not be commercially exploited and chooses to reengage with any sort of video game in a way that permits the name image and likeness of the athlete to be displayed that will be a nother case and your honor is absolutely right under this court's decision in keller that is a property right that many state laws recognize but there is no such thing here and there is no substantial significant threat of injury from an impending violation in their regard if i may i'd just like to spend a few minutes on the third prong of the rule of reason analysis which i think is really where the court with again with all due respect erred the most the the her least restrictive alternative ruling is eroni s as a matter of law because it is entirely clear and you know the thought is that our brief sites and also professor hovind camp and the other any trust scholars that have filed on our behalf explain a least restrictive alternative does not include setting in incrementally different cap price the any trust laws are not concerned with setting different prices and therefore the fact that the district court found that if you just raise the level of compensation a little higher that would would be a less restrictive alternative is simply not an exercise that any trust courts can engage in it also the this less restrictive alternative is also not as the standard requires virtually as effective in the sense that doesn't that this goes back to the question i asked you up front that doesn't really go just a five thousand dollar in trust question as opposed to the theo way no it doesn't right now i mean that the point is let's assume that the n c double a didn't have a rule that said you can go to schools can go up the c e o way if they want that is the rule that existed before this lawsuit was filed it is not the job it is not the mission of an and it is not within the scope of authority of in any trusts court to say well you know right now you have g i a that is tuition fees room board and school books i don't think it would be inconsistent with amateuris m to pay laundry money and that's a list less restrictive alternative there is no case ever decided under the sherman act by any court that has ever up held that kind of raising of a price cap as a less restrictive alternative a less restrictive alternative is an alternative way that is qualitatively different not incrementally different and the fact the reason that it's not incrementally different is that in order to make the initial showing that there isn't any trust violation you have to show that there is a significant harm and the the less restrictive rule has to be quote substantially less restrictive of competition now the court also erred in another respect which is what the any trust laws protect is competition not competitors and there is no showing in this record that there would be any more competition among schools if the cap were raised let's say from hypothetically from g i a to c e o way or from c e o way to the five thousand dollar trust with the a rule doesn't mandate the schools pay that it simply permits them to do that if they wish exactly if school is as has announced that it's only going to offer g i a and another school in the same conference offer seo and there surely will be some more effective competition and we would expect athletes to move from one school to another of course just as not every school is required and let's go back to the on c n regime schools were not required to offer g i a and they all didn't offer g i and they didn't offer a to all of their recruited athletes and they competed on that basis now they also competed as a district court found on any number of non priced bases we have better professors we have better dorms we have better training facilities we have better coaches all that the whole bundle of compensation that went in this transaction and there is zero showing in the record that the price of the bundle even if we were talking about protecting competitors and not competition that the price of the whole bundle would change if they could go up to whatever it is g i a plus something or c e o a plus some think it's simply setting the cap and nat in and of itself doesn't mean that there will be more competition judged by b as to your point all of the n c double a's rules are permissive up to the prohibition and the schools can and at the district court found do with vigorously compete on that basis i know my time is up so i think i should probably sit down very good thank you in responding to the n c double a's argument there are there are certain fundamentals the first is that the n c the way over states and misinterprets the board of regents decision there are certain truths in the the supreme court affirmed they were a horizontal combination of competitors restraining the freedom of its members to compete they were an enterprise organized to maximize revenue in a commercial venture it was a business where neither its affiliation with educational institutions nor good motives protected it against an i trust accountability was not a defense there were no findings of fact by the district court on either amateurism or athletes there were no findings of firmed or reviewed by the supreme court on amateurism as a pro competitive justification there was a failure yes gulf but much of that is because of the nature of the contract that was an issue there which had to do a t v rights exemplar of the not didn't really deal with individual athletes that you've got to claim here yes and that's the problem of what they're trying to extrapolate or leverage board of regents to have this court read that there that board of regents has somehow established a rebuttable impregnable determination that no rule rule are in any way encompassing the rubric of amateurism can be challenged and that's not what board of regents stands for the passing language in the board of regents regarding pay in students was neither necessary as your honor just said nor relevant to the outcome of the judgment it was dicta and as the n double a said in the rock case where they tried to distinguish language in the agnew case that was not necessary to the judgment they said the panel's discussion of a hypothetical labor market was dicta as it was not necessary to the outcome of the case and therefore not entitled to the full weight usually given judicial decisions the supreme court itself has defined dicta in the in the following way if the court has once in dicta called a tomato a vegetable is bound to deny that it is a fruit for ever no establish any absolute abstract blanket mechanical immunity from and i trust accountability for any n c doubleday rule or practice in fact the very cut cases cited by the n c doubleday agnew mccormick in gainsaid even eligibility rules and in see double a bylaws are subject to and i trust scrutiny and what is the nature of that scrutiny as a fundamental truth of the board of regents both the per se rules and the rule of reason are employed to form a judgment about the pet competitive significance of the restraint what the n c doubleday argues in this case is by merely invoking you know the talismanic language of or would of amateurism that this court cannot form a judgment because that judgment has already been made and the supreme court in border region said whether the ultimate finding is the product of a presumption or a market analysis the essential inquiry remains the same whether or not the challenge to straight inhance is competition the n c double a today has not addressed the issue of the non enhancing or enhancing competitive effects of the restraint this court touched on the issue in the kelo case in  footnote five and nine the court expressed concern about whether the structure of the n c double a is fair to the athlete and structure is exactly what the n c double a itself and i trust an ems addressed years ago one of the longest tenured senior expense of the college athlete whose partition whose participation is exploited to make another buck for a bigger stadium the coaches the administrators or for other teams who can't pay their own way it is a fairness issue and along with the notion that athletes are students is the great hypocrisy of intercollegiate athletics well what in the structure of the c doubleday is responsible for that hypocrisy and that unfairness the n c doubleday itself commented that the structure constrains the competitive relationship among the members it imposes a one size fits all approach which forces the entire membership to a level of the lowest common denominator during the course of litigation the big five conferences publicly wrote we represent the teams that have the highest revenue and the most nationally known athletes but we do not have the ability to control our own destiny to build a regulatory structure that respects the demands on athletes in the twenty first century under the structure of the n c doubleday they wrote efforts to improve the benefits to athletes have been deflected because of cost implications manageable by our institutions but not by institutions with less resources there is a binding constraint within the membership imposed by the structure of w a and the rules themselves which essentially reduces competition between the members to the level of the most inefficient or the least efficient competitor antithesis of the antitrust laws at the end of the day though we're talking about essentially the value of the names likenesses and images of the players and in terms of that that concept  is brought into the and i trust injury portion of this and also in the role of reason so explain to me why you think those the names likenesses and images have value  images and like this is of the athletes have value because there are commercial enterprises that are willing to pay for them and because the end c w a commercialise is them well to paradise on first i think you'll agree that in terms of live broadcasts no court has recognized property rights in the names likenesses and images true it is not been tested yes but in all instances every contract involving a live broadcast includes the request by the broadcaster to receive the rights of the names images and likenesses of knowledge or point or sign the right now when those rights have not been acknowledged by any court  and as to the third which is the archival footage when there are restrictions in place already that would prove that prevents those likenesses from being used without consent true i can't answer that yes or no because there is the essence of the copyright assertion with regard to our archival material that a former athlete cannot say i have a right for you to get compensation for the use of that so then we get down to video games and obviously with our keller decision that we're not as open the pathway for compensation but can you give me a reasonable likelihood given the stance of the uncontested rules and force of the  could get the names i would publish the game and the only reason that i not publishing the game is closely and see double they withdrew it because it didn't want the athletes to then have a share of that through talking about the philosophy right that the current restrictions are basically formed the basis for the binding constraint and that is the schools will not compete with each other with regard to the recruitment of these athletes that by any constraint either increases the cost to the athlete of attendance and and and performance or decreases the value of the athletes athletic skills either way either way that's an agreement not to compete on price and there is no court that is held in an agreement  not to compete on price in a relevant market which this court made findings of is not an antitrust violation it is an antitrust effect whether viewed as a monopoly or a monopsony it either increases the cost to the athletes of a tennis a school and performance or decreases the economic value of the athletes well i agree that there's a huge potential market out there in the e a litigation prove that but we're talking about a trust injury at the moment how far can we go and sang at that market which really doesn't exist right now because the n c double layer rules which are being challenged here has value in that in the present context but they are being challenged your honor because the issue is not whether or not the athlete is paid and i l it's whether or not that and i yell can be used in the value of the of competition between schools at the present time which don't compete on price to increase the price of the value of either the athletes services or decrease the cost of the  scholarship there was no direct correlation ever entered into by the court of by the dish a quote below to say every athlete is entitle to x dollars for an eye out they said the end i all is one component of resources that the school can use to compete on the basis of which is now precluded or constrained from competing with regard to acquiring or the it in the exchange of the educational services for the athletic to enable to reverse the present position of the n c w a structure which prohibits the member schools from competing with each other on price bottom in other words just open it up who's to say that five thousand dollars or six thousand dollars or ten thousand dollars where the put in trust or not this particular judge did five thousand who  say that it's going to stop there in the appeal and makes the argument very effectively here today in you were effective to make the argument this is not a federal judge's job to run the n double aid to determine how much money is to be paid for particular athletes were you going to stop you going to stop with college you got to go to high school there are you know high school athletes that you know lot of recognition they usually go to michigan or michigan  their own witnesses who said you're right i mean amateurism is is a floating word with with no anchored meaning and sure nothing would change with regard to amateurism even in the abstract if there was an additional five up to five thousand dollars that individual schools could compete with each other for the services of the athlete and it was the evidence produced by the by the n c double a's witnesses themselves who said of course we could go up the cost of attendance without violating the principle of amateurism despite the fact that today if schools did that it would violate the present interpretive application or implementation of that rule which gets us to is there really a core consistent principle of amateurism there is but it's not a rule the principle of of amateur amateurs and says you are an athlete is a student first and foremost that's not what the evidence unfortunately s the evidence said that the principle of amateurism has nothing to do with compensation it has everything to do about motivation and with regard to that motivation contrary to what was just said by the n c of l a it doesn't mention pay at all in fact the first rule of the big ten year honor was that big ten schools could only play three professionals at a time and the district court made findings that the historical record that the n c double a cites is evidence of its longstanding commitment to amateurism is unpersuasive the record reveals that the n c double a has revised its rules governing athlete compensation numerous times over the years sometimes in significant and contradictory ways why because pay has no meaning other than what the n c doubleday says it is so you can't be in violation of a rule or not because you never know what the rule is because the rule is only what they say it is at one time the rule was no scholarships or scholarships would pay then they reverse that and in fact it would scholarships were deliberately included because walter byers in the one nine hundred fifty said we have to stop this competition among schools in under the table payments to athletes so we're all going to agree that they'll be a lowest common denominator nobody competes for these athletes above the cost of a grant in aid that itself was turning a no pay rule into a pay rule but because there was agreement among the competitors to impose a binding constraint on the level of competition for that day the court also noted that just by the end of it he s counsel if your point is well made that there's been to certainly has been a shift in philosophy but it seems to me that there's a reasonable rule to be drawn that the cost at least up to the cost of education bears some relationship to the goods and services that you're receiving at the university and therefore there's the there's something that doesn't violate a theoretical notion of amateurism once you get to the question of putting five thousand dollars per year trust for athletes that would be a cash award at the end of their time at the university it looks to me like we've crossed the line and we've crossed even though the line was not clearly drawn that at least across the some theoretical line about about pay for play but why wasn't wise in that portion of the district court's order in from the costs the defendant's own witnesses said an additional five thousand dollars or the provision of greater economic benefits as the big five conferences said in order to respond to the needs in the demands of the athlete in the twenty first century five thousand dollars doesn't cross whatever that  from six figures to seven figures but i think the testimony was that wouldn't be troubled by five thousand which is far from an economic assertion and i don't he was talking about what would what would make people amateurs i thought that was quite a different context and that's the difficulty you know of dealing with the term amateur without a definition other than amateur as the principle is defined by the n c the overlay is the motivation of the athlete they're supposed to be students that's the amateur they're supposed to be in college they're supposed to be legitimately enrolled legitimately taking classes they should not be an athlete's masquerading as students now that if your complaint is amateurism your suit didn't originally asked for five thousand dollars that that figure sort of evolved out of a couple of witnesses who who threw out a five thousand dollar figure that didn't seem to have any bearing to anything yet you're not asking this court to go anything above what the district court ordered in other words you're only defending the district court's order yes and not suggesting to us that we should either uncap it or that we should capita the higher place correct and so with regard to this immutable principle of amateurism the court found that the inconsistency is in the definition in application and pay for one thing pay one day unpaid not and not the next day was not indicative of any core principle then the court address the indefinable definition of amateurism amateurism differs or amateur differs by division and by sport for example a tennis player is authorized to make up to ten thousand dollars without violating the principle of amateurism why where's the rationale for that what distinguishes tennis from football or swimming or or basketball amateurism as contained in the n c doubleday constitution says it's all about motivation and this conception the court noted stand in stark contrast to the next admissions set forth in the n c double a's early bylaws where education was not even a recognized motivation for amateur athletes join the years when the n c double a prohibited athletic scholarships but probably the best illustration of the nonsensical nature or the hamster wheel application of the definition of amateurism was the following exchange with president you say the definition of amateurism in your testimony was you're not paid right yes ok we've looked at the constitution we've looked at the rules we've looked at what your lawyers have said to the court of appeals does it all boil down to just amateurism being you're not paid that's the most significant part of it is there any definition of amateurism in the instable a constitutional bylaws that amateurism means you don't get paid i believe that's the intention of the language that we've been talking about all along so it's not written down expressly in any n c double a rule or by a law that's the definition of amateurism he was asked that's your interpretation of the intent of those rules president it's the interpretation of everybody who's been a part of the n c doubleday for one hundred years that was not supported by the record and in fact it was contradicted by the record where the immediate president president sesar said when it comes to can the n c double a legally pay some of the pay the athletes he said at s e r four thirty seven which is in the two thousand and six state of the association speech i presume it could be resolved if we wanted to compensate participants where is the  they themselves said if we want to pay the athletes we can pay is not the anchor of amateurism the motivation is supposed to be as as reflected in the principle and in fact they went on to say that we have problems and challenges around things like the definition of amateurism and how we establish it and how we don't we are not necessarily of one mind as to what amateurism means it's very difficult to deal with something that's that theory and say it means one thing when in fact the record findings are not to support that interpretation and the n c double a here was presented with an unprecedented opportunity with five years of discovery hundreds of exhibits dozens of witnesses including one nobel prize winner three weeks a trial they had a unique chance to demonstrate as a matter of fact that there were viable legitimate substantial pro competitive benefits outweigh now the significant trader stra alleged by the athletes in this litigation and in fact they admit so they say the record as stablished that there were significant program pettitte of benefits that involves two findings of fact one that there were there was of benefits and two that those pro competitive benefits were significant the district court made extensive findings rejecting that proposition in fact the court found as a matter of fact with regard to the specific restraints alleged that the pro competitive justifications of amateurism and integration of education and athletics as proffered by the n c double a unpersuasive implausible non credible unjustified flawed insufficient limited and marginal not a testament to their to and to the viability of either their significance or their program petard of benefit the court however noted that there may be a continuum with regard to the pro competitive benefits that the court found could be in pla and the court said that there may be some level of large payments that could result in a decline in the popularity of am or of in a collegiate athletics assist in hants in the integration of athletics and academics but she said you're not there right now the court could have ended its inquiry at that point just as the court in law did because there were insufficient pro competitive justifications to respond to the significant restraints and competition derived from the agreements not to compete on price for the athlete in recruitment so she gave the benefit of the failure of the evidence to the n c doubleday and said ok you raise a suggestion or an inference that at some further point in a continu there may be a pro competitive benefit that would outweigh the present restraint there is not one now but there could be so in an abundance of  caution in an abundance of the benefit of the doubt in a belt and suspenders i'm going to look at whether or not there is a less restrictive alternative that would achieve the same objectives and the court did that thoroughly consistent with the absolute traditional classic application of the rule of reason and of analysis and look to see whether there were less restrictive means of achieving exactly the same objectives and then if it's but one that would permit significant competition among the member schools how do you solve the argument that at least respective least restrictive means analysis is a qualitative and not a quantitative analysis i think the did a qualitative analysis they looked to see what was the objective sought to be achieved and could you achieve that objective with a less restrictive means given the fact that you already failed to prove that your presently professed pro competitive benefits did not justify the actual restraint being challenged so the court looked prospect of like was there something in the future that could lead to a pro competitive benefit right but you'd have to agree that at least as to the grandson age versus the cost of attendance that's more of a quantitative rather than a qualit how much or how much an interference in principle know you want to because cost of attendance differs from school to school so it's not quantitative in sense in the sense that i'm saying twenty thousand dollars for the university of tennessee would match the thirty five thousand dollars for the cost of attendance for example at the university of michigan it was not quantitative it was qualitative that it dealt with the cost of attending school which differs from school to school and the court's decision did you know and remained to the district court on the board of regents the court took pains to point out the recalcitrance of the n c double way in responding to the decision of the supreme court and the court said in that remain and it would serve no purpose to repeat the egregious conduct which the court found to exist and by my permanent injunction just like the injunction entered here i did not seek to prohibit the n c doubleday from openly and competitively participating in the collegiate market what the court does prohibit is the illegal activity pursued by the n c double a and the illegal manner in which it pursued its own interests we believe the same occurred here and in fact most recently the supreme court commented in an in the north carolina board of dental examiners that active market participants cannot be allowed to regulate their own markets free from and i trust accountability that the prohibitions against anti competitive self regulation by active market participants are an axiom of federal antitrust policy and just as judge browning expressed here the nature and purpose of the n r trust laws is to guard against predatory conduct that has no redeeming competitive virtue and the court made extensive findings repeatedly that the significant trade restraints the agreements not to compete in the get judge women to ask questions speak fast ok coming on the airplane yesterday i read the new york times on my i pad and that can bring it up again but my recollection of that article was that the n c double a i think it was the f s b part of it passed a rule recently that said i now we can pay our recruits and it was a vote of seventy eight to one boston college voting against it all the other schools voting in favor of it now we can pay this is my recollection of it our athletes the full cost of education and the full cost of education not hard to determine apparently because the part education has what it actually costs to go to pacific schools can you bring me up to date on it if you know number one and number two how does that differ as judged by the said asked earlier how does that differ from  what judge wilkins imposes on that aspect of her relief so i wasn't reading the new york times yesterday on my i pad or otherwise so i'm not able to i may be wrong the so what the n c double a did originally before the trial court ruled in this case there had long been a request by the so called f b s power conferences to raise the cap from g i a to quote c e o a c e o way is not a number that the government fixes but the government the department of education has established the categories of those categories of expenses that are c e o way and those that are and before the district court ruled in this case the n c double way that is all eleven hundred member schools voted to allow the five power conferences to grant their request to be able to pay up to  way and i believe what was reported yesterday was and again they decision to permit all schools not just the you know the power for the five power football conferences to do the same and i think this is your point underscores something that i think has been troubling the court and i think may have been a little bit obscured in the argument which is to the extent that we are talking about a decision of what level of education what level of educational expenses to reimburse i think it's important first of all my friend says well not all not all amateur or leagues require that and that's true it is a condition of eligibility of this league that you'd be a student if the little league said well you know anybody who plays in the little league is not only get their expenses but we're going to pay all of their college tuition when they go to college that would violate the little leagues rules because it is not a reimbursement of the expenses of participation this is because it is a condition of eligibility that you be a student advancing toward a degree and the extent to which this i think does go to chief judge thomas is question about qualitative versus quantitative you know to the extent that all the least restrictive alternative we're about was moving from g i a to  way it really does demonstrate i think quite clearly that the less restrictive alternative is not substantially less restrictive we're talking about whether it will include laundry expenses and and you know certain other things but not other expenses that some or all students may feel are necessary and that is a decision that the n c double way must have ample latitude to define and the problem with i think you'd have to concede at least given the answered evelyn's action that increasing the allowable compensation to cost of attendance does not violate the spirit of amateurism no than the n c double a has found that it does and the n c double a defines its product the problem with the district judges injunction is twofold but the first one is it is not an injunction that says you know schools have to be able to compete up to c e o way it says schools have to be able to compete to provide revenue from a specific commercial source to students and that is the antithesis of amateur quote compensation there is no amateur league that allows someone to receive up to any amount you know a percentage of you know team posters or team teddy bears or anything and so it's the character of the rule that she applied at the plaintiff's request the other problem with it is as i've said before it is not a function and it can't be a function of any trust courts to say well there's a challenge to this price cap i think the price cap should go up a little on what i've heard you say a couple times now that the district court's order requires payment out of a particular fund and i don't see that in the district courts permanent injunction order anyplace i think i believe i don't have the injunction in front of me but i prefer order plainly is that the schools have to be permitted to offer if they wish a share of the commercial nil revenue assuming any exists ought to the full cost of attendance and that is an order that the n c double aid not prohibit the receipt of specific commercial revenues for athlete i do i see now the language in paragraph b of paragraph one b in the in the order but i'm does that mean it has to come out of a particular fund well does that mean the n c a a has to say well the nil nil revenues this year weren't weren't so great to cover all of this so you don't you don't get that this year i'm a little puzzled by i how that's an forcible i am a little puzzled about how would how it's in forcible either and in fact if you look back at that i think we've quoted in our brief the testimony of their expert professor knoll dr knowles he said look i have no idea whether these no rights exist or not but that's not relevant because whether they exist or not under this rule the schools will be able to offer up to this amount and that's more competition that's better pray i mean it seems to me i didn't i guess i read it more the way to judge by we did which is compared i'm just looking at page ninety six of the court's opinion saying consistent with the less restrictive alternatives found the court will enjoying the n c double way from enforcing any rules or bylaws that would prohibit it member schools and conferences from offering their f b s football or division one basketball recruits a limited share of the revenues generated from the use of their names images and likenesses in addition to full grant and aid it is specifically tied to a commercial revenue so i don't see that and i'm looking at the i'm actually now looking at the injunction i see the language that you got on page ninety six of that will continue and i'm looking at page two of the of the actual injunction and it  amount but i don't see that it's requiring the n c a a to pay this out of a particular account well if it's not i mean if we're talking about now above c e o way if it's not then it's there's no question that this is pay for play it's just saying well we don't know whether these exist these rights exist but you can compete to pay them five thousand dollars a year i mean that it particularly if there are if it's not linked to nil rights i mean there's there's no possible argument that this is in pay for doesn't meet the zenith standard for the issuance of an injunction since before she ever issued this injunction the n c double a had already determined that schools coud offer up to c e o a and therefore it doesn't meet the zen requisite for the issuance of any trust injunction i do want to just i did i realize that my time is over but i did want to just correct a few things that my friend said first of all that it is sit it is wrong it is incorrect that the district judge in this case did not find that there were pro con petard of benefits in fact we think that she was too grudging in her finding a pro competitive venice fish she found that there was a benefit of integration of the student athletes with rajon to use for the job she she understated amateurism because on amateurism she only looked at the effect on fans and that was the test the five thousand dollars testimony from the former chief of c b s sports but as the supreme court admonished it the rules defining and protecting amateurism are pro competitive not just for fans but for the athletes as well in the sense that it provides them with a different model a model that five hundred thousand young men and women every year choose to embrace rather than going to a professional model and really what since we think she is she got to step three so she had to find pro competitive benefits she erred in the less restrictive alternative because it changed the nature of the product and it was certainly not substantially less restrictive or consistent with the objective but in order for her to go to step three she held that the pro competitive benefits outweighed the any competitive the facts to the point that above some number the rules as a whole were pro con pettitte of and you know i think it's pretty back black letter law that if the plate in that situation if the plaintiffs doesn't come forward with a less restrictive alternative that is valid in the law the choice for a court is the current rules or no rules and as to that i suggest that the district judge was under no illusions about how that comes