Litigious Games: Is it Legal for The Ivy League to Refuse Athletic Scholarships?

Photo from Wall Street Journal

The Ivy League has held a policy denying its student-athletes from being granted athletic scholarships while attending its universities. Over recent years, this rule has been contested. Student-athletes are protesting the League's lack of such scholarship funding, especially when considering their substantial endowments. Is the League’s stance on these scholarships legal? A recent lawsuit may culminate in an answer to these questions.

On Tuesday, March 7th, 2023, attorneys representing Grace Kirk and Tamenang Choh filed a lawsuit in a U.S. District Court in Connecticut against the Ivy League regarding their policy of refusing athletic scholarships to its student-athletes. Kirk, a current member of Brown University women’s basketball team, and Choh, a former member of Brown men’s basketball team, are seeking class-action status to represent all current and former athletes from all Ivy League schools since March 2019. The suit names the aforementioned pair as the plaintiffs, and the Ivy League schools and their Council of Presidents as defendants.

Plaintiffs argue that “the Ivy League's policy of not offering athletic scholarships amounts to a price-fixing agreement that denies athletes proper financial aid and payment for their services.” Since 1954, Ivy League institutions have upheld a policy that denies merit and athletic scholarships. In light of this policy, the Ivy League is the only Division I athletic conference that forbids all member schools from offering athletic scholarships. In other words, while all other Division I athletic programs award financial aid to selected athletes, Ivy League institutions only grant “need-based financial aid to students, including athletes.”

Robin Harris, executive director of the Ivy League, defended the policy, stating:

"The Ivy League athletics model is built upon the foundational principle that student-athletes should be representative of the wider student body, including the opportunity to receive need-based financial aid [ . . . ]. Choosing and embracing that principle then provides each Ivy League student-athlete a journey that balances a world-class academic experience with the opportunity to compete in Division I athletics and ultimately paves a path for lifelong success."

In response to the legal action, Director Harris also called attention to the array of opportunities “college-level athletes” are awarded, and the unique benefits and “distinct features” that accompany such benefits.

Plaintiff attorneys contest this picture of a seemingly unique experience afforded to Ivy League athletes. They point out that other academically competitive institutions, such as Stanford and Duke, do offer athletic scholarships. The existence of such universities that offer athletic scholarships demonstrates that elite institutions outside of the Ivy League can “maintain stellar academic standards while competing for excellent athletes, without agreed upon limits on price.”

Plaintiffs argue that the “Ivy League Agreement” to withhold athletic scholarships unfairly disadvantages their athletes, by requiring them to pay more for their education and earn less in compensation and reimbursement.

According to the suit, this aforementioned agreement “constitutes unlawful price fixing” which is in violation of the federal Sherman Antitrust Act. While other recruited athletes receive scholarships to cover their tuition and fees or are eligible under the National Collegiate Athletic Association regulations to receive substantial reimbursements of “other school-related expenses,” Ivy League athletes are barred from both.

The suit finds that the Ivy League Agreement has “direct anticompetitive effects” as it raises the net price of education for these athletes, while simultaneously diminishing compensation for the athletic services they provide. The plaintiffs contend that, in the absence of the Agreement, Ivy League institutions would compete about scholarship offers.

Ivy League schools yield enormous influence over the path a limited group of academically and athletically talented students can take and restrict market options of said students through their alleged price fixing. This gives rise to questions pertaining to the supposed “anti-competitive” nature of the League’s policy: their lack of scholarship offers arguably restricts students when deciding on career paths.

Precedents for the ongoing lawsuit may give light to a possible outcome. In 2021, a pair of attorneys and Penn graduates from the class of 1972, Alan Cotler and Robert Litan, addressed a letter to the eight Ivy League presidents. This eight-page memo questioned whether the Ivy League can continue to ban athletics scholarships. The letter began by referencing the 2021 Supreme Court case, NCAA v. Alston. In this case, the Supreme Court upheld a district court ruling that “NCAA can’t enforce certain rules limiting the education-related benefits such as postgraduate scholarships or other resources that colleges offer athletes as long as those are educational benefits.” Their legal analysis suggests that the large endowments Ivy League institutions possess are more than sufficient to offer athletic scholarships, while “continuing to provide full need-based aid to all.” Providing a solution to a potential argument that if Ivy League institutions began to offer athletic scholarships it would be too costly.

Lawyers for the plaintiffs argue that the same rules imposed onto the NCAA from the NCAA v. Alston case decision should also apply to the Ivy League conference. To substantiate this position, Tuesday’s lawsuit cites Justice Brett Kavanaugh’s prominent concurring opinion from the 2021 NCAA ruling: “Nowhere else in America can businesses get away with agreeing not to pay their workers a fair market rate on the theory that their product is defined by not paying their workers a fair market rate.”

If the plaintiffs win this lawsuit, not only would the process Ivy League institutions use to recruit student-athletes drastically change, but the case outcome also has the propensity to alter the general student body at these institutions as well. If the Ivy League Agreement is overturned, and athletic scholarships are no longer prohibited, these schools could experience drastic changes. Would athletics take on a more prominent role at these institutions, or conversely would their role be minimized? In addition to tapping into their endowments, what other techniques would Ivy League institutions employ to fund athletic scholarships?

Haley Joyce is a senior concentrating in International Public Affairs and Sociology at Brown University. She is a Staff Writer for the BULR Blog and plans to pursue a law degree. Haley can be reached at Haley_Joyce@brown.edu.