Analyzing the Flurry of Amicus Brief Signatories in NCAA v. Alston

In Briefs, Litigation, Supreme Court by Sam EhrlichLeave a Comment

For those following the news surrounding the pending NCAA v. Alston case, this week featured a massive amount of new information in the form of several amicus curiae filings on behalf of the petitioners.

The reason for this flurry of filings was simple: Wednesday marked the magical seven days after the athlete respondents filed their opening brief, which per Supreme Court Rule 37(3)(a) is the deadline for amicus filings in support of the respondents.[1]Briefs supporting the petitioner (along with a solitary ‘neither party’ brief filed by yours truly) were due seven days after the NCAA filed their brief last month.

Given Alston’s almost certain status as a major turning point in the history of college sports, there has predictably been a substantial amount of interest surrounding this case, which in turn led to a huge number of amicus briefs.  As Jess Bravin of the Wall Street Journal explored this past weekend, amicus briefs filed to the Supreme Court have been sharply on the rise, with 911 amicus briefs filed in the Court’s 2019-20 term, or an average of 16 briefs per case.  By comparison, 715 amicus briefs were filed in the Court’s 2010-11 term, which averaged out to 9 briefs per case.

16 amicus briefs for a single case is quite high (especially if you are a Supreme Court tasked with reading all of them).  But that number of briefs seems light in comparison to Alston’s final total of 21 total merits-stage briefs by various parties, most (13) filed on behalf of the respondent athletes.[2] This number does not include three certiorari-stage briefs filed, all in support of the petition for certiorari.  The cited Wall Street Journal study was unclear on whether it distinguished … Continue reading

Even for a case involving sports law—which may naturally bring a particular level of interest given the broader appeal of the subject matter—this number is quite high.  Indeed, Alston’s significantly high interest level (along with Bravin’s more general findings) is shown even more drastically when compared to the dockets of the three other sports law Supreme Court certiorari grants this century (Martin v. PGA Tour, American Needle v. NFL, and Murphy v. NCAA).

Amici in Alston have been varied in connection and interest to the case, with various think tanks, advocacy groups, and professors offering their opinions on the case’s merits.  Even several states saw fit to weigh in on the case, with eight states (GA, AL, AR, MS, MT, ND, SC, and SD) siding with the NCAA and eight other states (AZ, CO, DE, IL, MN, NY, OR, and PA) favoring the athletes.  Perhaps the biggest prize, however—the U.S. Department of Justice—sided with the respondents and even motioned for leave to participate in oral arguments.

But the largest group of amicus brief signatories by far was the various professors who filed, either as signatories to a larger group brief or on their own.  Indeed, over one-third of the 21 merits-stage amicus briefs in Alston were filed by university professors.  These eight professor briefs slightly favored the athletes, with four briefs filed on their behalf against three filed in support of the NCAA.

The stated preference by professors for the athlete-respondents becomes even more clear when counting the number of amicus signatories, rather than just the raw number of filed briefs.  Over 87 percent of the 113 professor-signatories sided with the athletes, thanks in large part to Rutgers law professor Michael Carrier, whose brief featured 65 professor-signatories in support of the respondents.

These professors have brought a wide range of experience levels and specialties to the table, with many hailing not from law schools, but instead from economics, sport management, and business administration programs.  At the same time, however, the vast majority of these professors are fully tenured law school professors (which is perhaps to be expected).

Academic RankAssistant ProfessorAssociate ProfessorProfessor (Full)Professor EmeritusOther
(Non-Tenure Track or Clinical)
Total
Supporting Petitioners02101013
Supporting Respondents314708499
Supporting Neither Party100001
Total4168094113
DepartmentLaw SchoolBusinessSport ManagementEconomicsHistoryOtherTotal
Supporting Petitioners71140013
Supporting Respondents57411193599
Supporting Neither Party0100001
Total646122335113

Whether the Supreme Court leans in the direction of the bulk of amicus filers and sides with the athlete-respondents is certainly a matter of debate.  But based solely on these filings, it seems clear that the weight of public opinion is turning against the NCAA’s goals of antitrust immunity and towards a brave new world in intercollegiate sports.

References

References
1Briefs supporting the petitioner (along with a solitary ‘neither party’ brief filed by yours truly) were due seven days after the NCAA filed their brief last month.
2 This number does not include three certiorari-stage briefs filed, all in support of the petition for certiorari.  The cited Wall Street Journal study was unclear on whether it distinguished between cert-stage and merits-stage briefs.

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