[00:00:08] Speaker 04: Good morning, your honors. [00:00:09] Speaker 04: Rakesh Kilaru on behalf of the NCAA. [00:00:12] Speaker 03: Oh, sorry. [00:00:13] Speaker 04: I didn't realize we were on all set up. [00:00:14] Speaker 04: Sorry about that. [00:00:14] Speaker 03: No, no. [00:00:15] Speaker 04: Go ahead. [00:00:16] Speaker 04: Rakesh Kilaru on behalf of the NCAA. [00:00:18] Speaker 04: And if I could, reserve three minutes for rebuttal. [00:00:21] Speaker 04: All right. [00:00:21] Speaker 04: In O'Bannon, this court drew a distinction between compensation rules and eligibility rules, such as rules limiting the number of years student athletes may compete in college sports. [00:00:33] Speaker 04: And it declared the latter set of rules non-commercial and outside the scope of the Sherman Act. [00:00:38] Speaker 04: Some things have changed in college sports since then, but nothing that would undermine that basic distinction between eligibility rules and compensation rules. [00:00:51] Speaker 04: The district court in this case erred in granting a mandatory injunction, changing the status quo for three independent reasons that I'd like to- Council, I'm sorry to interrupt, but I'm interested in whether this case is moot to begin with, just for jurisdictional grounds. [00:01:07] Speaker 02: Why isn't this case moot if the terms of the injunction have actually ended and both plaintiffs are not expected to either play in another college football season or be eligible to do so under the rules? [00:01:20] Speaker 04: There's two separate reasons for that, Your Honor. [00:01:22] Speaker 04: First, the injunction term has not ended. [00:01:25] Speaker 04: The injunction still restrains the NCAA's membership from applying the rule of restitution to vacate wins during the season or statistics during the season by an ineligible student-athlete. [00:01:35] Speaker 04: So there's an ongoing legal restriction on the NCAA's membership. [00:01:39] Speaker 04: Now, no decision has been made whether to do that or not. [00:01:42] Speaker 02: Has the NCAA ever exercised, in these circumstances, the rule of restitution against an institution? [00:01:51] Speaker 04: Well, I think we cite the Jones case in our brief from Texas. [00:01:53] Speaker 04: It certainly has been a while, I will say. [00:01:55] Speaker 02: And when was Jones? [00:01:57] Speaker 04: A long time ago, Your Honor. [00:01:58] Speaker 04: I wouldn't dispute that. [00:01:59] Speaker 02: So why would this theoretical possibility of the NCAA enforcing it against a third party have an ongoing case or controversy between the parties here? [00:02:09] Speaker 04: I think the question first of all is simply under the law whether there's a legal restraint that's still imposed by the injunction and there is. [00:02:16] Speaker 04: So whether or not practically the NCA might do it is a secondary question to whether the order is restraining us from doing something we have the right to do under the rules. [00:02:25] Speaker 04: Now I do think it is a membership decision that hasn't been made as to whether to enforce the rule of restitution, but I will say that we find ourselves in a somewhat unprecedented situation where there have been 70 plus lawsuits over the last year where ineligible student athletes are seeking to get an additional season or seasons of athletic competition. [00:02:43] Speaker 03: Council, what is the exact current status of these two cases? [00:02:48] Speaker 03: And if it's the same, you can just be more general in your answer. [00:02:52] Speaker 03: But what's right now the status of these cases in the district court? [00:02:55] Speaker 04: I believe that in the district court, the proceedings have been stayed. [00:02:59] Speaker 04: I do believe the term of the injunction, insofar as it grants eligibility, has expired because the students have finished their season of competition. [00:03:07] Speaker 04: But I believe there is still an injunction, in effect, in the district court against the rule of restitution. [00:03:12] Speaker 03: So we still have the injunction, but is the case also proceeding toward trial or a permanent [00:03:21] Speaker 03: Type injunction or damages or anything else or attorney's fees I believe as it stands now It's stayed I think those issues would be worked out potentially after a remand But the injunction that is in effect is still in effect as but everything else in both cases is stayed I believe that's correct Yes, your honor and the stay continues indefinitely [00:03:42] Speaker 04: I think obviously we have the appeal and we tried to get it up here as quickly as we could given the circumstances but I will say in a lot of other cases even after an appellate reversal for example where the season was over there have been further proceedings in the district court so we have at least one case just to give an example. [00:03:58] Speaker 04: in the Eastern District of Tennessee involving a student athlete named Mr. Ziegler, we won a preliminary injunction, or the injunction was denied, and the case is proceeding for damages purposes based on the season. [00:04:08] Speaker 03: So I should know the answer to this, and I apologize, but did the complaints seek damages as well as declaratory or injunctive relief? [00:04:18] Speaker 04: I don't believe it did as it's stated right now, Your Honor, but we can confirm that. [00:04:22] Speaker 02: Okay. [00:04:23] Speaker 02: Let me come back up. [00:04:23] Speaker 02: So on the rule of restitution, if we were to find that, if we were to believe that this case was moot and dismissed it, wouldn't we normally vacate the district court's injunctions under Munsing where, in which case the NCAA would be free to go and enforce the rule of restitution against the institutions? [00:04:41] Speaker 04: Yes sir I think if the court were to declare the case moot that would be the appropriate outcome and we don't think there's actually a contested dispute between the parties as to whether vacature would be appropriate under Munson where now independent of the rule of restitution. [00:04:54] Speaker 04: We also think that under this court's decision in AED, this case falls within the capable of repetition but avoiding review exception. [00:05:02] Speaker 02: AED is an interesting case. [00:05:03] Speaker 02: It's a little bit unusual because there you had an age cut off under the IDEA, if I remember. [00:05:10] Speaker 02: Once you hit 20, regardless of what was happening in the case below, once a person aged out, nothing could happen. [00:05:17] Speaker 02: The case would end because there was no statutory protection. [00:05:20] Speaker 02: But you don't have an age out provision here. [00:05:22] Speaker 02: It's about eligibility for a future season with the NCAA or, I mean, with a Division I football program or two. [00:05:29] Speaker 02: Why doesn't that make that distinct? [00:05:34] Speaker 04: There's not an age restriction per se, but there is the same issue of a kind of permanently transitory issue. [00:05:40] Speaker 04: Because in every one of these cases that's come up, and like I said, there have been 70 of them, [00:05:44] Speaker 04: It's a student seeking one more season of competition and saying, this is my last season. [00:05:48] Speaker 04: So it's effectively the same as an age issue in that there's one season and there's probably six months in which the issue can go from preliminary injunction motion being filed to the issue, the season being over. [00:05:59] Speaker 02: But it wouldn't have to be, right? [00:06:02] Speaker 02: Suppose you have a student that has two years at a junior college and then they transfer to a Division I program and let's say they registered for one year and then they play two years of Division I football. [00:06:15] Speaker 02: They would be ineligible, I believe, under the five-year rule. [00:06:18] Speaker 02: But if they prevailed, either the district court on appeal to say that the junior college years shouldn't count, they would be, a court order could allow them to be eligible [00:06:30] Speaker 02: to play more time in division one. [00:06:33] Speaker 02: In other words, I just don't know that this is the case for it. [00:06:36] Speaker 02: I'm not seeing why this issue would evade review under the right circumstance or where a plaintiff appeals in one of the many cases that the NCAA has actually won. [00:06:47] Speaker 04: Your Honor, I think it has evaded review. [00:06:48] Speaker 04: I mean, it evaded review in Pavia, though I do think that case was distinguishable from this one. [00:06:53] Speaker 04: I think it may well evade review here. [00:06:55] Speaker 04: And so far as the decision was issued, we filed a motion to expedite the appeal. [00:06:59] Speaker 04: We tried to get here as quickly as we could. [00:07:01] Speaker 04: Now the argument is, well, the season's over. [00:07:03] Speaker 04: You can't get review of the order. [00:07:04] Speaker 02: But what about my hypothetical? [00:07:05] Speaker 02: I mean, in that sense, that person or the parties would have a two-year runway then, right, between the district court and an appeal in order to resolve the merits of the antitrust issue. [00:07:18] Speaker 04: I think that might be true, Your Honor, but I think there's respectfully two problems with that hypothetical. [00:07:22] Speaker 04: The first problem with that hypothetical is that in your situation, unlike here, you know, we would have... I think that goes to the irreparable harm analysis we eventually get, which is what's actually happening. [00:07:31] Speaker 04: or that students are not filing suit when they think they might want an extra year, but are filing suit on the eve of the additional season. [00:07:37] Speaker 04: But I will also say descriptively in these cases, they're not being filed two years in advance, one year in advance. [00:07:43] Speaker 04: they're being filed the day before the season starts in this case I think even one of the cases even after the season started and so the practical circumstances in which this case is being litigated again and again and again is evading review and we can't control when students sue us right so it's not like we can go to the student and say hey we think you might want additional eligibility in three years so let's go litigate that now we have to be in the position of waiting until they sue us and that lawsuit is almost inevitably happening [00:08:10] Speaker 04: on the eve of the season, when there's four to six months at most. [00:08:13] Speaker 02: Do you think, is AD the best case in your view for the proposition that you're asserting that the capable repetition doctrine should be applied? [00:08:22] Speaker 04: I think it is, Your Honor, but I also think if you look at [00:08:25] Speaker 04: For example, the only case that's found these moots so far was the Pavia case. [00:08:30] Speaker 04: And this issue, I will say, is being litigated in the Robinson case in the Fourth Circuit right now. [00:08:34] Speaker 04: So obviously, if that decision comes out in one way or another, we'll submit it to the court. [00:08:38] Speaker 04: But Pavia was quite different from the circumstance in that the NCA had granted a longer-term waiver, and the court there didn't have precedent like AD. [00:08:46] Speaker 04: that specifically suggested that it's not just the person who was the plaintiff in the court below who has to have a chance of recurring as to them, but it could be the defendant, which is the exact circumstance. [00:08:58] Speaker 02: And I'll let my colleagues. [00:08:59] Speaker 02: I think they want to follow up with this. [00:09:01] Speaker 02: But what concerns me is that the doctrine [00:09:04] Speaker 02: from the Supreme Court on down with lions is primarily about the complaining party having something recur to the plaintiff themselves to that particular party and not to the defendants because if you were to imagine If it could be something recurring to a defendant then many cases would have been written differently, you know in lions there would have been [00:09:26] Speaker 02: it would have been justiciable because the LAPD was doing chokehold on other people in LA. [00:09:30] Speaker 02: I mean, I can think of many other cases, right? [00:09:35] Speaker 02: In Honig and others. [00:09:39] Speaker 02: But here what's indisputable is the plaintiffs are not, indisputably not gonna go play another season of college football. [00:09:46] Speaker 02: So what makes this case, [00:09:50] Speaker 02: it's sufficiently different enough to fit it within the AD context than in all the other cases that really primarily focus on a plaintiff. [00:09:57] Speaker 04: I mean, I really do think it's quite on all fours with AD in the following senses. [00:10:01] Speaker 04: In both cases, you had a district court order that gave a plaintiff essentially what they were hoping to get in the district court. [00:10:08] Speaker 04: That's exactly what happened in AD. [00:10:10] Speaker 04: By the time the case came up on appeal, the plaintiff had, in AD it was aged out, but here finished their season of competition. [00:10:17] Speaker 04: So a time-based duration bar had expired. [00:10:20] Speaker 04: And the question is, can the complaining party, we would say us, which I think in the school district was a complaining party and AD, continue with the case because the issue is likely to recur to them? [00:10:30] Speaker 04: And I don't think there can be any reasonable dispute. [00:10:32] Speaker 02: No, I think that the complaining party was the plaintiff in the school case as the underlying plaintiff. [00:10:38] Speaker 04: Understood, Your Honor, but the complaining, if that is true, then the court didn't agree with that being the complaining party because they said that even if the complaining party was the plaintiff, which [00:10:47] Speaker 04: I don't think it was, but even if it was, the school district could still get appellate review of the issue because the issue was going to recur to them. [00:10:54] Speaker 04: So in that sense, exactly the same as the situation you have here, where we are the NCAA, we are coming into court, and we're saying this situation is going to recur to us. [00:11:03] Speaker 04: And there is just no theoretical debate about whether this is going to recur, because it continues to recur. [00:11:09] Speaker 04: Obviously, we recognize that Your Honors have granted expedited argument in another case, but that's one example of the issue recurring, another case where the motion for P.I. [00:11:16] Speaker 04: was filed on the eve of the season, and it takes kind of extraordinary judicial work, which we appreciate, to get that case resolved on the merits. [00:11:23] Speaker 04: But even then, you know, the arguments in a couple weeks and the decision, you know, if the rule is the complaining party has to have a stake, it puts an immense amount of pressure on the courts as well. [00:11:33] Speaker 02: you want to talk about the merits a little bit? [00:11:35] Speaker 04: If I could briefly, yes, that would be great, Your Honor. [00:11:37] Speaker 04: I think there's, as I said, three different independent merits issues, one of which is specific to the Mertenson case. [00:11:44] Speaker 04: To start, in O'Bannon, this court distinguished compensation rules from eligibility rules and said that eligibility rules are non-commercial in some cases. [00:11:53] Speaker 02: You know, I guess, I read O'Bannon, I read that line to be a little differently, more as indicative rather than as part of the holding. [00:12:01] Speaker 02: And it seems like the landscape changed after Alston. [00:12:04] Speaker 02: where different types of rules are considered commercial rules. [00:12:08] Speaker 02: I mean, if you were right, then wouldn't the NCAA just be able to sort of mask any type of commercial effect rule as just an eligibility rule? [00:12:17] Speaker 02: And I think Austin essentially rejected that sort of argument. [00:12:21] Speaker 04: So a few things there, Your Honor, but I would say first, I don't think it's dictated because the core question in O'Bannon and that portion of the opinion was whether or not the compensation rules were eligibility rules or not. [00:12:31] Speaker 04: that were outside the scope of the rule of reason. [00:12:34] Speaker 04: And so the court specifically said compensation rules are in under the rule of reason. [00:12:38] Speaker 04: Eligibility rules are out. [00:12:40] Speaker 04: I think separately, to answer your question, it would come to whether or not it's an eligibility rule or not. [00:12:45] Speaker 04: I mean, we made the argument in O'Bannon that a compensation rule was an eligibility rule, and we lost. [00:12:49] Speaker 04: And we haven't made the argument since. [00:12:51] Speaker 04: But we have made it in the context of rules that I think are indisputably eligibility rules that are about how many seasons of competition you can have. [00:12:58] Speaker 04: which is the exact type of eligibility rule that was described as such in O'Bannon. [00:13:03] Speaker 02: But I mean, going back to first principles, those are eligibility rules that probably indisputably have a commercial effect, right? [00:13:09] Speaker 02: With the amount of money that's in college football and in college basketball especially, and the ability of someone to either be in a four-year major program or not, and the monetary difference and whatever anti-competitive effects there might be, there's quite a bit of a commercial component to this, isn't there? [00:13:28] Speaker 04: I think, as I said at the beginning, things have changed obviously since O'Bannon, but I don't think in a way that's material for this argument. [00:13:34] Speaker 04: Even in O'Bannon, the question was whether or not student athletes could get additional NIL compensation. [00:13:40] Speaker 04: That was a specific question in O'Bannon. [00:13:42] Speaker 04: The court allowed certain forms of additional NIL compensation, less than is now allowed, but it was in the context of a decision saying there can be more NIL compensation [00:13:51] Speaker 04: on top of the hundreds of thousands of dollars of value that comes from a college degree that you get as a result of being eligible. [00:13:58] Speaker 02: Let's say even if we don't agree with you about O'Bannon, why else would you win? [00:14:01] Speaker 04: So there's two other reasons which I guess I'll address briefly. [00:14:04] Speaker 04: One is in the Martinson case there's no dispute that the judge applied the quick look and I think that's clearly wrong under Alston. [00:14:11] Speaker 04: If the argument is that Alston says that the rule of reason applies to NCA rules and Alston applied the rule of reason to a rule that literally restricted compensation, [00:14:20] Speaker 04: I don't think there could be any reasonable argument that the rule of reason shouldn't also apply to the eligibility rules here. [00:14:27] Speaker 04: And then last, in both cases, there's a simple evidentiary problem, which is that an antitrust case needs antitrust proof. [00:14:34] Speaker 04: There needs to be evidence of the relevant market. [00:14:37] Speaker 04: There needs to be evidence of anti-competitive harm. [00:14:39] Speaker 04: And the record in this case is indistinguishable from the Forker and Case out of the Seventh Circuit recently. [00:14:44] Speaker 03: In your view, there were some declarations, there were some affidavits, there was no [00:14:51] Speaker 03: real expert evidence defining the relevant markets and analyzing the, in your view, the required rule of reason calculus? [00:15:00] Speaker 04: I think that's exactly correct, Your Honor. [00:15:02] Speaker 04: And if I may just finish the point, this is pretty much on all fours with the recent ELAD decision out of the Third Circuit, where the Court said, if you're going to take the position that the market has changed because of NIL and because of compensation, you need to do some economic analysis of the new market. [00:15:17] Speaker 04: And there was zero economic analysis in the record here. [00:15:20] Speaker 04: All right, thank you. [00:15:21] Speaker 04: Thank you. [00:15:35] Speaker 00: Good morning, Your Honor. [00:15:37] Speaker 00: May it please the Court, my name is Greg Clifton. [00:15:40] Speaker 00: I'm here representing Cortez Bram and Tatua Martinson with regard to the appeal that was filed by the NCA in both of those cases. [00:15:49] Speaker 00: We feel very strongly, and if you don't mind, I'm going to respond to my opposing counsel for a moment if I could. [00:15:55] Speaker 00: He mentioned O'Bannon quite a bit. [00:15:57] Speaker 00: O'Bannon is a 10-year-old case from 2015. [00:16:00] Speaker 00: Since 2015, which I think, Your Honor, acknowledged slightly, there's been a lot of changes in the college world. [00:16:09] Speaker 00: O'Bannon did not authorize what we've seen. [00:16:12] Speaker 00: And literally, when we had oral argument on the Cortez-Bram case, which was on July 2, the day before, [00:16:20] Speaker 00: Effectively what had happened all of a sudden NCA schools could now pay twenty and one-half million dollars To their student athletes so the argument that there is not anything commercial And if you watch some of the other cases that have been revolving and some of the signings through NIL Anyone who says this was not a commercial. [00:16:40] Speaker 00: It is not a commercial issue. [00:16:42] Speaker 00: I think is really just off-base and [00:16:44] Speaker 02: Council, can you start with mootness? [00:16:47] Speaker 02: Can you start with mootness, the jurisdictional issue before us? [00:16:53] Speaker 02: Why does the rule of restitution that I believe is still currently in effect make this case moot nonetheless? [00:17:00] Speaker 00: Well, I think the reality, the rule of restitution, is something now that the NCAA is attempting to utilize to shut down the legal rights that student athletes have to file lawsuits. [00:17:13] Speaker 02: Well, regardless of whether the NCAA is trying to do it, it's in the order, isn't it? [00:17:18] Speaker 00: It's what? [00:17:19] Speaker 02: It's in the court's order. [00:17:20] Speaker 00: Yes, it is. [00:17:21] Speaker 00: In both court orders, it is specifically prohibited. [00:17:25] Speaker 00: The NCAA is prohibited from going forward with the rule of restitution. [00:17:28] Speaker 03: So doesn't that mean the case is not moved? [00:17:31] Speaker 00: I don't know what you mean, Your Honor. [00:17:33] Speaker 03: Well, how can the case be moot if there is an extant order that forbids conduct right now? [00:17:42] Speaker 00: Well, if you analyze the other components of the mootness doctrine here in the Ninth Circuit, it's what I would call a two-pronged test. [00:17:50] Speaker 00: It's not really a test, but there's two prongs to it. [00:17:52] Speaker 00: And both of those prongs have to be satisfied by the NCAA. [00:17:56] Speaker 00: As we briefed and submitted to you, we don't think [00:17:59] Speaker 00: The second prong of that has been in any way shape or form addressed by the NCAA. [00:18:04] Speaker 00: The reality is these student athletes that we are representing have no eligibility left. [00:18:11] Speaker 03: I understand that, but the restitution rule bar [00:18:18] Speaker 03: which you've just said is in effect, it bars the NCAA right now from taking certain actions. [00:18:25] Speaker 03: So how can the case be moot even if the aspect relating to eligibility is moot? [00:18:32] Speaker 03: How can the aspect relating to the rule of restitution be moot if it's in the district court's order and right now it stops the NCAA from acting? [00:18:41] Speaker 00: Well, the reality is, Your Honor, there is no dispute right now. [00:18:46] Speaker 00: Bottom line is the case is over. [00:18:48] Speaker 03: So the NCA is just trying to perpetuate this case to try and- How is the case over, even if it were over as to the client's eligibility, how is it over as to the rule of restitution? [00:19:00] Speaker 00: Well, if the NSA seeks to move forward on the rule of restitution, I don't believe either one of these clients are involved in that. [00:19:08] Speaker 00: Because if you look at the prong, the two prongs in the rule of restitution argument for mootness, they have not satisfied that second prong whatsoever, because there's no longer an ongoing dispute between that individual [00:19:21] Speaker 00: whether it be Cortez Brame or Tito Martinson, with the NCAA. [00:19:25] Speaker 00: They don't have any dispute. [00:19:26] Speaker 00: There is no opportunity for either one of those clients now to go ahead and re-sue or file another action against the NCAA. [00:19:33] Speaker 01: I'm sorry. [00:19:37] Speaker 01: Thank you, Judge Sanchez. [00:19:38] Speaker 01: Counsel, I was having a hard time trying to understand your logic on the restitution issue until I think I just got what you're saying. [00:19:50] Speaker 01: I think I understand what your argument is at this point. [00:19:53] Speaker 01: Please help me, all right? [00:19:55] Speaker 01: Yes, happy to. [00:19:56] Speaker 01: My understanding is that what you're saying is that the restitution argument in this case is particularized and is [00:20:07] Speaker 01: inextricably entwined with the underlying case involving each of your clients, and that if your client's case is moot, the restitution order then would be moot. [00:20:21] Speaker 01: Is that your argument? [00:20:22] Speaker 00: That is my argument. [00:20:24] Speaker 00: That is our belief. [00:20:24] Speaker 01: Okay, that's where I see it. [00:20:28] Speaker 02: The way I think about your argument is there is no ongoing case or controversy between your clients and the NCAA because they have no interest in whether the NCAA pursues restitution against the institutions with which they formally play. [00:20:44] Speaker 00: The next issue is [00:20:45] Speaker 00: They have no standing, in my opinion, against either institution because either institution was never put on notice. [00:20:52] Speaker 00: They were not part of this lawsuit in any way, shape, or form. [00:20:55] Speaker 00: One of the athletes attended the University of Memphis. [00:20:57] Speaker 00: The other athlete went to San Diego State. [00:21:00] Speaker 00: Neither one of those schools has been involved in this lawsuit in any way, shape, or form. [00:21:05] Speaker 00: So seeking restitution against them is not like seeking restitution against a school who plays an eligible athlete, for example. [00:21:13] Speaker 03: Is the language the district court put in the order as to the rule of restitution language you requested? [00:21:21] Speaker 00: I'd have to look at that closely, Your Honor. [00:21:22] Speaker 00: I believe we put in there that the rule of restitution should not apply simply because we think the rule of that. [00:21:29] Speaker 03: So you asked the district court to do what it did? [00:21:31] Speaker 00: Correct. [00:21:32] Speaker 03: All right. [00:21:32] Speaker 03: Moving to another aspect of mootness, and I'm looking at the Where Do We Go Berkeley case. [00:21:39] Speaker 03: The court there said, [00:21:41] Speaker 03: based on the cases which it cited, including the AD case, which I'm not going to discuss. [00:21:47] Speaker 03: Another preliminary injunction. [00:21:49] Speaker 03: either in this case or in a similar case would be similar enough to count as a recurrence. [00:21:57] Speaker 03: So the court in Where Do We Go Berkeley specifically talked about that the ability of cases other than this one to recur with the exact same issues and similar time problems [00:22:11] Speaker 03: is enough to prevent a case from being moot. [00:22:15] Speaker 03: Why isn't that the exact circumstance here where, as your friend points out, these lawsuits typically are filed right before the season starts. [00:22:23] Speaker 03: There's no time to get the appeal heard before the season ends. [00:22:29] Speaker 00: If I could address that, the reason these lawsuits are filed the way they are filed, as you will see in our documents that we filed, in our pleadings that we filed, [00:22:38] Speaker 00: both of these cases in specifics, the Cortez-Bram case, he attempted to seek remedies through his school, which was seeking a waiver for eligibility. [00:22:48] Speaker 00: His school refused to file that on his behalf. [00:22:53] Speaker 00: Despite multiple requests. [00:22:56] Speaker 03: But let's assume, I have no reason to believe it isn't, assume that's true, the Where Do We Go Berkeley case talked about that you can also look at whether the issues are going to occur in different cases and similar even with different parties. [00:23:16] Speaker 03: So we know that happens. [00:23:18] Speaker 03: We know these cases get filed right before the season, whatever the reason. [00:23:22] Speaker 03: We know they don't get typically appellate decisions before the season is over, although we know that there's another case coming up. [00:23:31] Speaker 03: that will be heard in April. [00:23:35] Speaker 03: But where do we go Berkeley control when it talks about you can have a mootness exception based on recurrence in a similar case? [00:23:45] Speaker 00: I think that there would never be any mootness ever in any of these cases under that assessment, Your Honor. [00:23:52] Speaker 00: The reality is every single one of these cases [00:23:56] Speaker 00: could be argued for mootness, as we have done and we've presented to you. [00:24:00] Speaker 00: So that only applies. [00:24:00] Speaker 03: Well, only because they get filed right before the season starts, and the season is over before the case can get to appeal. [00:24:07] Speaker 03: I mean, that would be the only reason why you would say there would never be mootness, because in the cases we're talking about here, the season is whatever, three months, four months, and that's the definition. [00:24:21] Speaker 03: And by the time the season is over, well, we have no more interest in this case. [00:24:25] Speaker 03: Let's move along. [00:24:26] Speaker 00: Well, I don't know if there was a question there, Your Honor, so I want to be responsive to you. [00:24:31] Speaker 00: The reality is these cases are filed as quickly as possible after they can be filed, after the NCA, as I mentioned a few minutes ago, refuses to honor the waiver request. [00:24:44] Speaker 00: They deny it, and they can appeal that. [00:24:45] Speaker 00: They deny it again. [00:24:47] Speaker 00: So these young men who want to play, and we haven't even gotten into that aspect of our argument yet, but they are being prevented [00:24:55] Speaker 00: not being able to seek an extra year of eligibility based upon NCA rules over student athletes, they don't even have any jurisdiction over. [00:25:03] Speaker 00: The NCA does not have jurisdiction over junior college players, yet they continue to try and enforce a rule and prevent these junior college athletes from having a chance to play that extra year or two. [00:25:15] Speaker 00: They count those years even if they didn't play. [00:25:19] Speaker 00: against their five, four years and five year rule, or the five year rule as it's called, the eligibility clock. [00:25:24] Speaker 00: They count that. [00:25:26] Speaker 00: So the reality is all these issues prevent these student athletes from having any basis to try and seek an extra year of eligibility, which they should be entitled to, which to us is a crucial, crucial issue that these student athletes, especially despite my opposing counsel's continued reference to O'Bannon, [00:25:44] Speaker 00: As I mentioned a few minutes ago, these young men have an opportunity to secure large amounts of money. [00:25:50] Speaker 00: large amounts. [00:25:51] Speaker 02: Mr. Clifton, what evidence did you present to the district court about antitrust injury and what the relevant market should be? [00:25:58] Speaker 00: Well, the relevant market issue, which had already been decided, which we presented to them and which both judges in both different cases agreed with this on, is the Division I college football market. [00:26:10] Speaker 00: So it's a fairly defined market. [00:26:12] Speaker 00: Clearly, it's not baseball players. [00:26:14] Speaker 00: It's not hockey players. [00:26:16] Speaker 00: It was, in our case, we defined it as the Division I [00:26:20] Speaker 00: football players nationwide. [00:26:22] Speaker 00: That's the relevant market, and that's what we believe. [00:26:25] Speaker 02: What evidence was presented to support that that should be the relevant market? [00:26:30] Speaker 00: There was just oral argument. [00:26:31] Speaker 02: Substitutes, other ways, because this is a labor market, and are there substitutes to that market where players could play elsewhere? [00:26:40] Speaker 02: When I look at the merits of this case, I see very little presented to the district court to support the preliminary injunction. [00:26:48] Speaker 00: I don't know how to respond to that. [00:26:49] Speaker 00: We thought we presented quite a bit of evidence, Your Honor, to support our position from initially discussing the quote-unquote eligibility rules and how they were a restraint upon these student athletes and a proper restraint that should not have been authorized. [00:27:04] Speaker 00: We went there. [00:27:04] Speaker 00: We went through the rule of reason analysis in both cases in great depth. [00:27:08] Speaker 00: which both judges addressed in great depth in their opinions, six, seven, eight pages of analysis. [00:27:14] Speaker 00: So there was quite a bit of evidence introduced, which both judges relied upon. [00:27:19] Speaker 02: Were there any experts that submitted anything? [00:27:21] Speaker 00: No, we did not use any experts in our cases. [00:27:23] Speaker 00: Understanding this, Your Honor, which is difficult, I know it's not your problem, it's my problem, these were both college students. [00:27:30] Speaker 00: who do not have great financial means. [00:27:32] Speaker 00: And at that point, they were being prohibited from securing any type of NIL type remuneration because they were being denied the opportunity to play. [00:27:40] Speaker 00: So the reality is we were limited from a funding perspective, but we were not limited in terms of our oral arguments and the evidence we produced. [00:27:48] Speaker 02: So have you, what is your response to the two circuit decisions of Elad and, for Corian, which I think on similar grounds reversed district courts because they had not presented, because those preliminary injunctions were not supported by substantial evidence of actual antitrust injury. [00:28:08] Speaker 02: Those are the things that come up under a rule of reason analysis. [00:28:11] Speaker 00: Well, I think if you look at our submissions, you will see that in the rule of reason analysis that was provided by both judges, we had provided detailed, sufficient information regarding why, under the rule of reason analysis, why we had satisfied those components. [00:28:28] Speaker 00: So we did not ignore them in any way, Your Honor. [00:28:31] Speaker 02: Well, for example, the only evidence that I saw with respect to the anti-competitive effects was [00:28:38] Speaker 02: With respect to the anti-competitive effects was that your clients were not allowed to play in the division one programs, but not being able to enter the market doesn't make it anti-competitive necessarily. [00:28:51] Speaker 00: The number of issues, one of which is the NCAA had argued that [00:28:55] Speaker 00: There's no big deal if they miss a season of eligibility. [00:28:58] Speaker 00: Well, that is a big deal for a student athlete. [00:29:01] Speaker 00: They lose out, as we're going to see with Cortez Brame as being an example. [00:29:05] Speaker 00: He is now preparing for the NFL draft. [00:29:07] Speaker 00: He would not have had that opportunity but for the judicial order by Judge Dew. [00:29:12] Speaker 00: So the reality is we presented evidence which showed if you were not able to play, and there was a lot of case law that says there is irreparable harm [00:29:20] Speaker 00: if you are denied the opportunity to play, whether it be for a brief period or whether it be for a season. [00:29:25] Speaker 00: By not being able to play, they would be denied the opportunity to be reviewed and analyzed by pro scouts, denied the opportunity to learn and be improved by the college coaching staffs that they'd be on their own. [00:29:38] Speaker 02: I don't doubt that your client would have material impacts about not being able to play, but antitrust injuries are broader. [00:29:47] Speaker 02: analysis about the anti-competitive effects to markets and how these rules affect the entry into markets and whether that's anti-competitive. [00:29:57] Speaker 02: So it often doesn't involve just the individual and what that might impact on them, but this broader economic analysis. [00:30:04] Speaker 00: Well, I think what's important, Your Honor, is in both of these cases, [00:30:07] Speaker 00: We were analyzing the rules of the NCAA, the bylaws, that they have no authority to have any control over junior colleges. [00:30:15] Speaker 00: They have numerous exceptions to their rules. [00:30:18] Speaker 00: Right now, I can recite numerous names where they're allowing athletes who are drafted, who have played professional basketball, [00:30:24] Speaker 00: to come back and receive four-year scholarships and come back into college. [00:30:29] Speaker 00: The reaction to that from college coaches of great renown, for example, Mr. Izzo in Michigan State, and even Rick Petina, who's now at St. [00:30:36] Speaker 00: John's, they were outraged by the fact that the NCAA is allowing these athletes to come back. [00:30:42] Speaker 00: We're seeing athletes, again, they talk about worrying about age and all those things. [00:30:47] Speaker 00: In fact, there's a gentleman who won the Heisman Trophy at 27 years old. [00:30:52] Speaker 03: Council, you're out of time. [00:30:53] Speaker 03: Do you have a final statement you'd like to make? [00:30:55] Speaker 00: Yes, I do. [00:30:55] Speaker 00: Thank you, Your Honor. [00:30:56] Speaker 00: Appreciate that. [00:30:58] Speaker 00: Yeah, what I'd like to do is hope Your Honors will consider what we filed. [00:31:02] Speaker 00: I know opposing counsel has spent quite a bit of time on the mootness angle. [00:31:06] Speaker 00: That was a separate motion that we filed. [00:31:08] Speaker 00: which, again, I was not sure we were going to be addressing and discussing today because we had never heard from Your Honors prior to this with regard to that motion that was filed in February. [00:31:19] Speaker 00: What I would like to do is just, if I could wrap up, is just... Quickly. [00:31:22] Speaker 00: I will do it very quickly. [00:31:23] Speaker 00: Just ask you to once again review our submissions, review our angles and our arguments that we made as to why the NCA's expression [00:31:32] Speaker 00: of restricting these junior college athletes and denying them the right to play when they have no jurisdiction technically over these junior college athletes, and yet they are denying them. [00:31:42] Speaker 00: And then from an overall perspective, the opportunity to secure any type of NIL dollars because if they don't play and they can't transfer, they cannot secure the tens of millions of dollars that are now being distributed to these student athletes who are able to transfer. [00:31:59] Speaker 00: Again, I thank you. [00:32:00] Speaker 03: Thank you. [00:32:00] Speaker 03: Counsel, we'll give you two minutes for rebuttal. [00:32:13] Speaker 04: Thank you, Your Honors. [00:32:15] Speaker 04: Maybe a minute on mootness and a minute on the merits. [00:32:17] Speaker 04: On the mootness issue, from a rule of restitution perspective, there is an order in place preventing the NCA's membership for potentially taking an action that they could take. [00:32:26] Speaker 04: I don't hear the other side to be saying that their clients have no interest in their records from the season, their statistics from the season. [00:32:34] Speaker 01: Can I, excuse me, can I ask you a quick question? [00:32:37] Speaker 01: First of all, [00:32:39] Speaker 01: It appears these young men have graduated. [00:32:43] Speaker 01: I don't know whether they graduated, but they're done. [00:32:45] Speaker 01: They're not playing football anymore in college. [00:32:47] Speaker 01: That's correct. [00:32:49] Speaker 01: The colleges themselves didn't do anything here. [00:32:53] Speaker 01: They were not a party to this case. [00:32:55] Speaker 01: They didn't induce these young men to get a waiver. [00:33:03] Speaker 01: They didn't issue the injunction. [00:33:05] Speaker 01: They didn't seek it. [00:33:07] Speaker 01: Why in the world would the NCAA have any interest whatsoever in attempting to seek restitution from an institution under these circumstances? [00:33:22] Speaker 01: How in the world would they even base it? [00:33:25] Speaker 01: What did these institutions do? [00:33:27] Speaker 01: They followed a court order? [00:33:29] Speaker 04: Your Honor, they rostered players who were ineligible under the rules that they agreed to as members of the NCA. [00:33:34] Speaker 01: Now, I want to be... Listen, these were players that they had wanted to have play for them. [00:33:46] Speaker 01: One of them asked, get a waiver, and the school said, no dice, we're not doing it on several occasions. [00:33:55] Speaker 01: And then a court order comes down and says, these people are eligible to play. [00:34:00] Speaker 01: You have to let them play. [00:34:03] Speaker 01: And then the NCAA is going to go after the school. [00:34:06] Speaker 01: You and I both know that is never going to happen. [00:34:09] Speaker 04: Your Honor, just I guess a few things. [00:34:11] Speaker 04: First, I'm not saying that any decision has been made to do that. [00:34:14] Speaker 04: In fact, one hasn't. [00:34:16] Speaker 04: But I am saying that there's a legal restriction on even doing that, which is a penalty that's prescribed by the school, but to which the school's agreed. [00:34:22] Speaker 04: But isn't it illusory? [00:34:23] Speaker 01: Isn't it really illusory? [00:34:26] Speaker 04: Your Honor, I don't think it is because it's a penalty in the rule book that the school's agreed could be applied to them. [00:34:32] Speaker 04: I see my time is up. [00:34:33] Speaker 04: So I guess we'll leave it there. [00:34:34] Speaker 01: No, I apologize. [00:34:36] Speaker 01: I'll leave it to Judge Bennett. [00:34:37] Speaker 01: No, that's OK. [00:34:38] Speaker 01: We thank counsel for their arguments. [00:34:40] Speaker 03: The case just argued is submitted. [00:34:42] Speaker 03: With that, we are adjourned for the day and the week. [00:34:44] Speaker 03: We thank counsel for their arguments. [00:34:46] Speaker 03: Thank you. [00:34:47] Speaker ?: All rise. [00:34:48] Speaker ?: This court for this session.