Case: 19-15566, 08/23/2019, ID: 11409028, DktEntry: 44-2, Page 1 of 18

No. 19-15566
IN THE

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHAWNE ALSTON; et al.,
Plaintiffs-Appellees,
v.
NATIONAL COLLEGIATE ATHLETIC ASSOCIATION,
The NCAA; et al.,
Defendants-Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
CLAUDIA WILKEN, DISTRICT JUDGE • CASE NO. 4:14-MD-02541-CW

AMICUS CURIAE BRIEF OF NATIONAL
FEDERATION OF STATE HIGH SCHOOL
ASSOCIATIONS IN SUPPORT OF NATIONAL
COLLEGIATE ATHLETIC ASSOCIATION
HORVITZ & LEVY LLP
BRADLEY S. PAULEY
3601 WEST OLIVE AVENUE, 8TH FLOOR
BURBANK, CALIFORNIA 91505-4681
(818) 995-0800
ATTORNEYS FOR AMICUS CURIAE
NATIONAL FEDERATION OF STATE HIGH SCHOOL ASSOCIATIONS

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CORPORATE DISCLOSURE STATEMENT
The National Federation of State High School Associations is an
Illinois not-for-profit corporation. It has no corporate parent, and no
publicly held corporation owns ten percent or more of its stock.

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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ...................................................................... ii
INTEREST OF AMICUS CURIAE ........................................................... 1
STATEMENT OF COMPLIANCE WITH RULE 29(a)(4)(E) ................... 3
SUMMARY OF THE ARGUMENT .......................................................... 3
ARGUMENT ............................................................................................. 4
I.

Amateurism is the principle that the dedicated pursuit of
excellence in sports for nonmonetary reasons is constructive
to the well-rounded development of young people. ......................... 4

II.

Amateurism among student athletes has intrinsic benefits,
encourages widespread participation, and levels the playing
field among competing schools. ........................................................ 5

III.

Amateurism is central to the athletic and educational
mission of the NFHS. ....................................................................... 7

IV.

Similar considerations favor the maintenance of a robust
culture of amateurism at the collegiate level. ............................... 10

V.

Courts should be mindful of the negative unintended
consequences of departing from the amateur ideal in college
sports. ............................................................................................. 11

CONCLUSION ........................................................................................ 12
CERTIFICATE OF COMPLIANCE ........................................................ 13

i

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TABLE OF AUTHORITIES
Page(s)
Cases
National Collegiate Athletic Ass’n v. Bd. of Regents of Univ.of Okla.,
468 U.S. 85 (1984) ............................................................................... 10
O’Bannon v. Nat’l Collegiate Athletic Ass’n,
802 F.3d 1049 (9th Cir. 2015) ............................................................... 5
Rules
Fed. R. App. P. 29(a)(4)(e) ......................................................................... 3
Miscellaneous
Amateur, Merriam Webster’s Collegiate Dictionary
38 (11th ed. 2007) ................................................................................. 4
Be True to Your School Lyrics, Genius,
https://bit.ly/2ZhWzaH (last visited Aug. 20, 2019) ............................. 8
President Roosevelt’s Address In Union on Saturday on
Questions of Local and National Interest, The Harvard
Crimson (Feb. 25, 1907),
https://www.thecrimson.com/article/1907/2/25/presroosevelts-address-ptheodore-roosevelt-80/ (last visited
Aug. 20, 2019) ............................................................................... 10, 11
Nat’l Fed’n of State High Sch. Ass’ns, NFHS Handbook
2018-2019 (2018), https://bit.ly/2ZblNHC ........................................ 7, 9
Nat’l Fed’n of State High Sch. Ass’ns, The Case for High
School Activities, https://bit.ly/2dSKvJ2
(last visited Aug. 20, 2019) ................................................................... 6
Torin Koos, The 23 most inspirational quotes from
exceptional athletes, Deseret News (Sept. 25, 2014, 11:54
AM), https://bit.ly/30rrcfi ...................................................................... 6
ii

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12th man (football)Wikipedia,
https://en.wikipedia.org/wiki/12th_man_(football) .............................. 7
Student-Athletes, NCAA, ncaa.org/student-athletes .............................. 11

iii

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IN THE

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHAWNE ALSTON; et al.,
Plaintiffs-Appellees,
v.
NATIONAL COLLEGIATE ATHLETIC ASSOCIATION,
The NCAA; et al.,
Defendants-Appellants.

AMICUS CURIAE BRIEF OF NATIONAL
FEDERATION OF STATE HIGH SCHOOL
ASSOCIATIONS IN SUPPORT OF NATIONAL
COLLEGIATE ATHLETIC ASSOCIATION
INTEREST OF AMICUS CURIAE
The National Federation of State High School Associations
(“NFHS”) is the national service and administrative organization of
high school athletics. Founded in 1920 and headquartered in
Indianapolis, the NFHS is composed of one high school athletic or
activities association in each of the fifty states and the District of
Columbia. Approximately ninety percent of the high schools in the

1

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United States are members of state high school athletic or activities
associations that are in turn members of the NFHS.
The NFHS’s mission is to provide leadership and national
coordination for the administration of interscholastic activities,
including athletics. The NFHS works to enhance the educational
experiences of high school students through their participation in
interscholastic

athletics

and

activities.

It

strives

to

promote

participation and sportsmanship in athletics, to develop good citizens
through such participation, and to enrich the educational experience of
students. The NFHS also seeks to protect the role that interscholastic
athletics plays in education and to develop solutions to problems related
to high school athletics.
The NFHS, along with its state association members, believes that
amateurism in athletics is not only valuable for its own sake, but also is
a key aspect of a well-rounded education. The organization 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 in particular, and to American sports in general.

2

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STATEMENT OF COMPLIANCE WITH RULE 29(a)(4)(E)
No party or party’s counsel authored this brief in whole or in part;
no party or party’s counsel contributed money that was intended to fund
the preparation or submission of this brief; and no other person except
amicus curiae, its members, or its counsel contributed money to fund
the preparation or submission of this brief.
SUMMARY OF THE ARGUMENT
Amateurism is a longstanding, dominant feature of educationbased sports in America, predicated on the idea that student athletes
compete not for compensation, but rather to develop positive character
traits such as leadership and good sportsmanship, and for the intrinsic
love of the game.

Students who play sports benefit from a strong

tradition of amateurism, which promotes broad participation across
multiple sports by athletes of varying skill levels. Amateurism also
confers

substantial

institutions.

benefits

on

student

bodies

and

academic

The survival of, and continued national support for,

amateurism is elemental to high schools’ mission of developing the
character of individual student athletes while also offering broad
opportunities for competition to the greatest number of students.
3

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If amateurism were to give way to professionalism at the
collegiate level, negative consequences likely would ensue.

Of

particular concern to the NFHS, the proliferation of professional sports
at the college level could adversely impact amateurism in high school
athletics and imperil its future. Without this emphasis on amateurism,
high schools would struggle to fulfill their ultimate goal of preparing
large numbers of well-rounded individuals for futures beyond athletics.
The NFHS thus urges this Court to reaffirm the importance of
amateurism as a guiding principle of athletics in American education.
ARGUMENT
I.

Amateurism is the principle that the dedicated pursuit of
excellence in sports for nonmonetary reasons is
constructive to the well-rounded development of young
people.
Merriam-Webster’s dictionary defines “amateur” as “one who

engages in a pursuit, study, science, or sport as a pastime rather than
as a profession.” Amateur, Merriam Webster’s Collegiate Dictionary 38
(11th ed. 2007). The principle of amateurism in sports is premised on
the age-old belief that the dedicated pursuit of excellence can help
athletes to develop a strong work ethic, learn fair play and good
4

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sportsmanship, develop leadership skills, understand the importance of
teamwork, achieve focus, cultivate time management skills, and
generally become more well-rounded people.
Amateurism is about the ineffable benefits that an amateur
athlete garners by pursuing athletic accomplishment for its own sake.
And it may equally be defined by what it is not: the pursuit of a
paycheck.

See O’Bannon v. Nat’l Collegiate Athletic Ass’n, 802 F.3d

1049, 1076 (9th Cir. 2015) (“[N]ot paying student athletes is precisely
what makes them amateurs.”).
II.

Amateurism among student athletes has intrinsic benefits,
encourages widespread participation, and levels the
playing field among competing schools.
Historically, amateurism has been viewed as integral to the tasks

of moral and ethical education, the development of social harmony, and
the physical development of student athletes.

Education-based

athletics are intended to develop hardworking and reliable young men
and women of good character whose skill sets transfer well to the
workplace. This aspirational goal is often attained.

“Students who

compete in high school activity programs have better educational
outcomes, including higher grades, higher achievement test scores, and
5

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higher educational expectations beyond high school.”

Nat’l Fed’n of

State High Sch. Ass’ns, The Case for High School Activities,
https://bit.ly/2dSKvJ2 (last visited Aug. 20, 2019).
But

amateurism

does

more

than

support

the

personal

development of individual student athletes, it sets a tangible, positive
example for all students and for the community at large. As Knute
Rockne, the early twentieth century amateur college football player and
legendary college coach put it, “One man practicing sportsmanship is
far better than 50 preaching it.” Torin Koos, The 23 most inspirational
quotes from exceptional athletes, Deseret News (Sept. 25, 2014, 11:54
AM), https://bit.ly/30rrcfi (original formatting omitted).
Amateurism also supports strong and cohesive student bodies,
and is thus good for school spirit. Amateurism in high school and college
sports promotes an environment in which audience members are not
mere passive spectators but enthusiastic and spirited supporters of
their teams and fellow students.

In education-based football, the

engaged student crowd’s integral—and often decisive—role in the
contest has long been recognized as the proverbial “twelfth man” (there
being eleven players per side in an American football game). It is
6

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noteworthy that the first recorded use of the term was in connection
with amateur college football around 1900.

12th man (football),

Wikipedia, https://en.wikipedia.org/wiki/12th_man_(football) (quoting a
September 1900 University of Minnesota magazine article referring to
“the mysterious influence of the twelfth man on the team, the rooter”)
(last visited August 20, 2019).

Today, “[m]any high schools in the

United States incorporate 12th Man language into their booster,
supporter, or rooter clubs.” Id.
III. Amateurism is central to the athletic and educational
mission of the NFHS.
The principle that student-athletes are students first and athletes
second, and that athletics exist primarily to advance an institution’s
educational mission, applies fully to high school athletics. The NFHS’s
belief is that high school athletes should be enrolled students of their
respective schools in order to “promote amateurism by drawing athletes
only from each school’s student population,” Nat’l Fed’n of State High
Sch.

Ass’ns,

NFHS

Handbook

2018-2019

19

(2018),

https://bit.ly/2ZblNHC [hereinafter NFHS Handbook 2018-2019]. This
precept underscores the well-recognized link between amateurism and
community identity, a link with lasting resonance in American culture.
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Examples of this cultural resonance include the 2004 film, Friday
Night Lights, about a high school football team in Texas whose town is
obsessed with their success, and the 1986 film Hoosiers, about an
underdog high school basketball team from a small town in Indiana.
Another cultural marker is the Beach Boys’ 1963 top-ten hit, “Be True
to Your School,” which includes the lines:
I got a letterman’s sweater
With a letter in front
I got for football and track
I’m proud to wear it now
When I cruise around
The other parts of the town
I got a decal in back
So . . . [b]e true to your school now. . . .
Let your colors fly.
Be True to Your School Lyrics, Genius, https://bit.ly/2ZhWzaH (last
visited Aug. 20, 2019).
This time-honored link between the athlete who pursues
excellence for love of the game and to bring honor to his or her school,

8

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and the community that supports that athlete and celebrates his or her
victories in return, should not be lightly cast aside.
The NFHS’s student enrollment guideline is intended to “avoid[ ]
professionalism and over-emphasis on athletes.”

NFHS Handbook

2018-2019, supra, at 19. This, in turn, allows student athletes to act as
“role models for other students.” Id. Conversely, it seeks to prevent
creeping professionalism (and the concomitant money and celebrity
status it would confer on athletes) from driving an unnecessary wedge
between student-athletes and the student bodies they represent.
Meanwhile, an “amateur/awards limitation promotes amateurism,
stimulates participation for the sake of the game itself . . . and
encourages students to engage in athletic competition for physical,
mental and social benefits.” Id. at 21.
Amateurism at the high school level also allows for widespread
participation, so that virtually any student who wishes to compete can
play a sport and reap the associated benefits. In 2017-2018, some
7,980,866 student athletes participated in high school athletics
nationwide.

9

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IV.

Similar considerations favor the maintenance of a robust
culture of amateurism at the collegiate level.
The Supreme Court has observed that “[t]he NCAA plays a

critical role in the maintenance of a revered tradition of amateurism in
college sports[,]” National Collegiate Athletic Ass’n v. Bd. of Regents of
Univ. of Okla., 468 U.S. 85, 120 (1984), in much the same way that the
NFHS and its members play that role at the high school level. The
principle of broad amateur participation is as much a founding principle
and perennial feature of college athletics as it is for high school sports.
As President Theodore Roosevelt, who played a major role in the
creation of the National Collegiate Athletic Association (“NCAA”),
declared in a famous address, “Our chief interest should not lie in the
great champions in sport. On the contrary, our concern should be most
of all to widen the base, the foundation in athletic sports; to encourage
in every way a healthy rivalry which shall give to the largest possible
number of students the chance to take part in vigorous outdoor games.”
President Roosevelt’s Address In Union on Saturday on Questions of
Local and National Interest, The Harvard Crimson (Feb. 25, 1907),
https://www.thecrimson.com/article/1907/2/25/pres-roosevelts-address-

10

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ptheodore-roosevelt-80/ (last visited Aug. 20, 2019) [hereinafter
President Roosevelt’s Address].
The NCAA’s longstanding commitment to amateurism is
beneficial because it makes thousands of aspiring high school students’
dreams of competing at the collegiate level a reality. This is because,
under the amateurism model, funds are more equitably distributed
between collegiate nonrevenue sports and revenue sports, creating a
large number of opportunities for student athletes in a broad variety of
athletic endeavors. Indeed currently, “[m]ore than 460,000 NCAA
student-athletes – more than ever before – compete in 24 sports every
year.” Student-Athletes, NCAA, ncaa.org/student-athletes (last visited
Aug. 20, 2019).
V.

Courts should be mindful of the negative unintended
consequences of departing from the amateur ideal in
college sports.
If college athletes were compensated as professionals, it would

erode their connections to their schools and likewise would undermine
their fellow students’ bonds with their sports teams. “It is of far more
importance that a man shall play something himself, even if he plays it
badly, than that he shall go with hundreds of companions to see
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someone else play well, and it is not healthy for either students or
athletes if the teams are mutually exclusive.” President Roosevelt’s
Address, supra (emphasis added). The same would undoubtedly be true
at the high school level.
CONCLUSION
Amateurism is an integral part of American academic and sports
culture. The NCAA should be afforded the freedom to define
amateurism in a way that preserves the ideal of the student athlete in
higher education while also meeting the present needs of its member
schools and conferences. In so doing, the Court would protect important
values of education-based sport at all levels.

August 23, 2019

HORVITZ & LEVY LLP
BRADLEY S. PAULEY
By:

s/Bradley S. Pauley

Attorneys for Amicus Curiae
NATIONAL FEDERATION OF
STATE HIGH SCHOOL
ASSOCIATIONS

12

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CERTIFICATE OF COMPLIANCE
This brief contains 1,930 words (as counted by the wordprocessing program used to prepare the brief), which is less than the
7,000-word limit established by Fed. R. App. P. 29(a)(5) and Circuit
Rule 32-1(a). The format of this brief (including its type size and
typeface) complies with the pertinent sections of Fed. R. App. P. 32(a).

August 23, 2019

s/Bradley S. Pauley

13