On August 23, 2019, the National Federation of State High School Associations (NFHS) asked the Ninth Circuit to grant leave and allow it to file an amicus curiae brief (non-party brief) in the Alston v. NCAA case. As we have previously reported, this case was brought by a class of college athletes in the wake of the O’Bannon decision, where a court held that NCAA rules prohibiting college athletes’ abilities to profit from their likenesses were anti-competitive.

O’Bannon held that compensation for college athletes had to be capped at the cost of college attendance, which included more than just tuition. In the Alston case, the class of college athletes sought to move the ball by creating an open market for schools to compete for top college recruits; however, in March 2019, the court found the NCAA’s scholarship rules to be anti-competitive, but only to a point. In the ruling, the NCAA was required to give players “compensation and benefits related to education,” in excess of their scholarship money and cost-of-attendance payments, but those benefits would not include cash. The ruling has since been appealed.

Simply put, the battle in the Alston case, like in the O’Bannon case, is over the concept of amateurism in collegiate athletics. Here, the NFHS has entered the amateurism discussion on the side of the NCAA. The NFHS is a national service and administrative organization of high school athletics and is composed of high school athletic or activities associations in each state and the District of Columbia. According to the NFHS, “amateurism in athletics is not only valuable for its own sake, but also is a key aspect of a well-rounded education.” The NFHS “is concerned that the district court’s opinion does not fully appreciate either the concept of amateurism or the many benefits it brings to college and high school sports … and to American sports in general.”

According to the NFHS, amateurism “promotes broad participation … [and] confers substantial benefits on student bodies and academic institutions.” Further, “If amateurism were to give way to professionalism at the collegiate level … high schools would struggle to fulfill their ultimate goal of preparing large numbers of well-rounded individuals for futures beyond athletics.” The NFHS closed its brief by arguing that the “NCAA should be afforded the freedom to define amateurism in a way that preserves the ideal of the student athlete in higher education [which] would protect important values of education-based sport at all levels.”