‎Editor's Note: Ryan is Assistant Professor at Thompson Rivers University, he defended his PhD at Erasmus University Rotterdam in December 2015. His dissertation examined human rights violations caused by international sporting events, and how international sporting organisations may be held accountable for these violations.

Introduction

On Sunday, August 21, the 2016 Summer Olympic Games in Rio de Janeiro will end. The spotlight will dim not only on the athletes who return to their home countries to ply their trade in relative obscurity, but also on the country of Brazil.[1] Once the Games have ended, life will go ‘back to normal’, although for many residents of Rio de Janeiro, what is ‘normal’ is anything but.

Watching the opening ceremonies from the favelas – Andrej Isakovic via Getty Images

“A New World” for Favela Residents

While the world has been preoccupied with Zika, the Brazilian corruption crisis, the cesspool that is Guanabara Bay, and the worrying state of some of the sporting venues, the displacement of persons is perhaps the largest problem not only facing the Games, but is the largest one caused (or at least exacerbated) by the Games themselves. Since Rio de Janeiro was selected to be the host of the Olympic Games in 2009, over 77,000 individuals (22,000 families) have been evicted from their homes. Most, if not all, of these individuals were evicted from their homes in the favelas, or slums, communities that began to appear in earnest in the 1970s as Brazil, and Rio de Janeiro in particular, began to urbanize. Currently, favelas are home to 1.4 million people, or about 22% of Rio’s population. It is very likely that not all of these evictions were related to the Games directly. City officials have stated that only Vila Autodromo was directly-affected by the Games, as this particular favela was turned into a parking lot for the Olympic Park and twenty homes for those who refused to leave (Reuters provides a good before/after comparison).

Vila Autodromo (Olympic Park under construction) - Genilson Araújo / Parceiro/O Globo

However, seemingly taking their cue from Rio 2016’s slogan, “Um mundo novo” (“A New World”), city officials have used the Olympic Games as an excuse to ‘re-imagine’ the city on a broader scale. In a 2012 interview, the mayor of Rio stated that “The Olympics pretext is awesome; I need to use it as an excuse for everything…Now all that I need to do, I will do for the Olympics. Some things could be really related to the Games, others have nothing to do with them.” As such, people from favelas that have nothing to do with the Games have been evicted from their homes, with the Games creating the pseudo-state of ‘emergency’ that has, in other cities that have hosted the Games, been used as an excuse to bypass normal procedures and do away with normal protections, in the mold of Naomi Klein’s “shock capitalism”.

The Rio government has claimed to offer financial packages and resettlement options for those who were displaced. These compensation packages were imperfect, as the government offered less than market value for the homes, and those who were relocated may have been relocated anywhere from several to dozens of kilometers away from their former residence, uprooting their businesses or employment, and their social and family lives. However, the relocation policy appears to be the velvet glove concealing the iron fist. For those who resisted relocation, the city cut off their water, and halted garbage pickup and postal service, while violent clashes between residents and police have also been reported. While not directly-related to evictions, but closely related to conditions in the favelas, there has been a reported spike in police killings of street children to “clean the streets” ahead of the Games. While new housing is being built in Rio, much of it is set to be high-end condos, not affordable housing.

International Standards Regarding Housing

The focus of this particular blog post is not the legality of the displacement, per se. That is an issue best addressed by Brazilian lawyers. However, there are international standards that Brazil should live up to. The Universal Declaration of Human Rights recognises a right to own property, and prohibits the arbitrary deprivation of property. Another international instrument of wide application, the International Covenant on Economic, Social, and Cultural Rights (ICESCR), recognises a right to an adequate standard of living. The ICESCR Committee, in its General Comments in 1991 and 1997, has interpreted this standard to include a right against forced evictions. If an eviction does occur, rights to information and participation by those who are affected arise. Finally, when an eviction does take place, a right to compensation and adequate resettlement attaches.

The case of Rio seems to suggest that forced evictions have likely occurred, based on the sheer scale of those who were evicted. Given the timeline of preparing for the Games, provisions on notice and information appear to have been curtailed or cancelled altogether, given that the city went to work on evicting persons immediately after Rio was awarded the right to host the Games in 2009. While some residents, particularly of Vila Autodromo, received compensation and alternative housing, in many cases there appears to be disagreement as to whether compensation has been offered at all with locals saying they have not received compensation, while city authorities deny evicting families without compensation. Actions such as police raids, and cutting off public services also suggest the evictions approach the threshold of ‘forced’ rather than voluntary/negotiated. Regardless of whether the letter of these international standards has been violated, the scope and pace of the evictions is of great concern.

IOC Stance Regarding Displacement

In particular, it should be distressing to readers to see the International Olympic Committee (IOC) seemingly stand by while these evictions occur in the name of the Games. And it is not as if the IOC has no clue that evictions take place due to the Games. For many Games, at least some displacement occurs to make way for infrastructure, while the 2008 Beijing Games saw an estimated 1.25 million people evicted due to Olympic-related projects.

The IOC has responded to the problems of displacement, pledging in 2009 to intervene with the Organising Committee for the Olympic Games (the OCOG – the actual body that is responsible for Games’ preparations) in situations where people who were displaced due to Olympic venue construction were ‘mistreated’. However, the IOC has not said anything publicly in regards to the evictions, and there is no public information regarding any IOC intervention.

Following the IOC’s Agenda 2020, and its recommendations on ‘social sustainability’, the IOC now requires cities bidding to host the Olympics to identify projects that may require displacement of existing communities, and to confirm that the procedures used to displace persons will conform to national and/or international standards. However, promises made by host cities are not always lived up to, as can be seen by Rio’s failed promises to treat 80% of the water flowing into Guanabara Bay, and treating only 21% on the eve of the Games. Rio is apparently also able to get away with such failed promises consequence-free, despite the risk of harm to athletes competing in and around the waters.

The Games Cannot Fix All Ills, But They Should Avoid Creating New Ones…

Ultimately, the largest problem with the Olympic Games is a lack of accountability. The IOC, an organisation based in Switzerland, holds the rights to the Games and selects the host city, but does not actually organise the Games. As such, the IOC often appears to act as though what happens ‘on the ground’ is neither its concern nor its responsibility. Those who actually organise the Games, particularly the OCOG and Host City (the National Olympic Committee of the host country also participates, but is not relevant here), often have limited accountability to those who are harmed by the Games. The OCOG disbands shortly after the Games are over, leaving the Host City holding the bag. The Host City’s accountability is entirely dependent on the political and legal structures of the country, and in countries like Russia (Sochi 2014, World Cup 2018), China (Beijing 2008, Beijing 2022), but even in more established democracies, Host City officials may have limited accountability.

Now is the time that commentators jump up-and-down to shout that hosting the Olympic Games in a single site would fix all of the problems. By placing the Games in Athens (no permanent Winter Games host is ever suggested), there wouldn’t be a need to host the Games in countries with questionable human rights records, or to watch as every single Olympic Games goes over-budget. However, rarely are suggestions made as to who will pay for the infrastructure, which will likely need to be periodically updated (it might be a bit hard for the Greek government to afford it at this point), cope with the criticism that the Games would be cemented as a Euro-centric enterprise, or the other problems that would arise with a permanent host. The Olympic Games are going to continue to be held in countries with imperfect human rights records (which would be pretty much all of them), and in countries with poor human rights records.

All of this is to say that the IOC needs to begin to actually enforce its ideals, and its own mandate of ensuring an Olympic Games that is socially sustainable. The IOC and the Olympic Games should not be the solution to human rights problems in a host country, for they cannot be. However, the IOC does have a minimum moral responsibility to ensure that the Olympic Games themselves are prepared for with the utmost consideration for human rights. And the IOC already has the powers to enforce this mandate through the Host City Contract, whether by withholding money from the Host City, or at the most extreme end, by removing the Games altogether. The IOC has also arguably set a precedent of withholding its support for a country to host future sporting events as a result of the Russian doping scandal, and it could do the same for Olympic host cities that engage in practices that violate human rights in the name of the Games. Of course, this is ultimately up to the IOC itself, barring pressure from states or sponsors.

The Olympic Games were never going to fix Brazil’s or Rio’s problems. Many of Rio’s problems, including Zika, ongoing sanitation issues, corruption, and political and economic instability, have little to no connection to the Games, and were certainly not caused by the Games. In that vein, it is naïve to believe that the Games could be anything more than a temporary papering-over of the deep divisions in Brazilian society (for more on this point, I suggest reading Dave Zirin’s book, Brazil’s Dance with the Devil). What the Olympic Games can do is serve as an example of how to carry out a socially-sustainable project in an emerging market economy. This applies not only to the displacement of persons, but also to the treatment of those who work on construction projects related to the Games (as opposed to the forced labour used in Beijing and Sochi), the environmental sustainability of the Games, and governmental policies and procedures that enhance accountability. While the IOC has made tentative steps to address these issues, as I have addressed before in this space, it is insufficient. The IOC cannot solve all the world’s ills, but it can at least ensure that the Games, carried out under its name, live up to its own standards.  The Rio Olympic Games could have served as an example of how to carry out a socially-sustainable project in an emerging market economy.

[1] Although the Paralympics will arrive on 7 September, and while London 2012 did an excellent job of promoting those Games it remains to be seen if Rio will follow suit.

The IOC has trumpeted it worldwide as a « historical milestone »: the United Nations has recognised the sacrosanct autonomy of sport. Indeed, the Resolution A/69/L.5 (see the final draft) adopted by the General Assembly on 31 October states that it  “supports the independence and autonomy of sport as well as the mission of the International Olympic Committee in leading the Olympic movement”. This is a logical conclusion to a year that has brought the two organisations closer than ever. In April, UN Secretary General Ban Ki-moon appointed former IOC President, Jacques Rogge, Special Envoy for Youth Refugees and Sport. At this occasion, the current IOC President, Thomas Bach, made an eloquent speech celebrating a “historic step forward to better accomplish our common mission for humanity” and a memorandum understanding was signed between the UN and the IOC. This is all sweet and well, but is there something new under the sun?

A beautiful friendship

As the IOC points out itself, it has always had a friendly institutional relationship with the UN. There is a good deal of solidarity of kin between the two transnational organisations. The UN has been keen on shoring up the Olympic truce. In fact, since 1993, it has adopted no less than 24 resolutions supporting sport (and the Olympic Games) as a means to promote education, health, development and peace. However, this year’s resolution goes beyond the previous resolutions. The text includes the usual references to the use of sport to foster peace and development, but it also celebrates in unequivocal terms the work and the autonomy of the Olympic movement. This is music to the IOC’s ears and resonates with its repeated calls on States to respect the autonomy of the “lex olympica”. The IOC has already stretched the interpretation of the resolution and claims “boycotts are incompatible with this UN request for respect of the values of sport”. Nevertheless, one must keep her feet on legal earth. This resolution by the General Assembly (GA) has no legally binding value on the UN Member States, it is merely encouraging them to act upon it. International legal scholars have endlessly debated the potential legal effects of UN resolutions, and they agree on one thing: Resolutions by the GA are not per se legally binding.[1] To be so, they must be capable of creating obligations on their addressees, or recognized as customary international law, both very unlikely in our case. Thus, this resolution should be interpreted as a declaration of friendship, which could have a practical impact (or not) on the work of national courts, depending on their willingness to acknowledge the UN resolution. In practice, it is just another sign (after the UEFA-EU arrangement) that international organisations tend to side politically (and usually uncritically) with the IOCs of this world.

A liaison dangereuse

Being good friends with the IOC guarantees good shots of the UN Secretary General holding the torch, but it might not be in the best interest of the UN, nor of the world’s citizens. The Olympic Games’ capacity to trigger an Olympic peace of some sort has been largely discredited by the invasion of Crimea and the proxy war fuelled by Russia in Ukraine, just days after the Winter Olympic Games in Sochi came to a close. The Secretary General of the UN himself stated in a recent (20 October 2014) report to the General Assembly that “[s]adly, there is no evidence of any initiative by warring parties either to unilaterally observe the Olympic Truce or to promote its mutual observation”. The Olympic truce myth has been a collective exercise of wishful prophesizing with no self-fulfilling effect in sight.

Furthermore, the UN General Assembly reaffirms “that any form of discrimination is incompatible with belonging to the Olympic movement”, but the latest Games in Sochi have also shown that the IOC is not sanguine, to say the least, in fighting discriminatory laws adopted by Olympic host countries. In fact, exactly on this matter, the IOC has announced already that it does not “have a mandate to impose measures on sovereign States outside its own fields”. This is surprising, as the IOC seems to consider it has a mandate to impose (via the host city contract) a string of measures on sovereign States covering core public policies (tax, infrastructure or intellectual property rights). Why does it not include the fight against all sorts of discrimination in the "fields" it deems its own? The latest draft of the Host city contract for the 2022 Winter Games comprises a reference to the “prohibition of any form of discrimination”, but it is still deprived of real legal teeth.

This relationship between the IOC and the UN is more of a liaisons dangereuse than a “beautiful friendship”. The UN should be weary to associate itself too closely with an institution characterised by a lack of transparency, internal democracy and accountability. Sure, one could hope that this friendship would lead the IOC to reform itself, but its readiness to do so is rather enhanced by public outrage and the threats of legal challenges than warm accolades. There is a regrettable paradox here: While the global citizenry is loudly contesting the IOC and FIFA, it is à la mode for international organisations to align themselves politically with them.

[1] On this question in general, see K. Hailbronner and E. Klein, Commentary of Article 10 of the UN Charter in B. Simma (ed.), The Charter of the United Nations : A Commentary, Oxford University Press, 2002, p.257-275

Editor's note
Zlatka Koleva is a graduate from the Erasmus University Rotterdam and is currently an Intern at the ASSER International Sports Law Centre.

The decision on appeal in the case of O’Bannon v. NCAA seems, at first sight, to deliver answers right on time regarding the unpaid use of names, images and likenesses (NILs) of amateur college athletes, which has been an ongoing debate in the US after last year’s district court decision that amateur players in the college games deserve to receive compensation for their NILs.[1] The ongoing struggle for compensation in exchange for NILs used in TV broadcasts and video games in the US has reached a turning point and many have waited impatiently for the final say of the Court of Appeal for the 9^th circuit. The court’s ruling on appeal for the 9^th circuit, however, raises more legitimate concerns for amateur sports in general than it offers consolation to unprofessional college sportsmen. While the appellate court agreed with the district court that NCAA should provide scholarships amounting to the full cost of college attendance to student athletes, the former rejected deferred payment to students of up to 5,000 dollars for NILs rights. The conclusions reached in the case relate to the central antitrust concerns raised by NCAA, namely the preservation of consumer demand for amateur sports and how these interests can be best protected under antitrust law.

Facts and proceedings 

The case is brought before the district court by Ed O’Bannon, a former American basketball player at the University of California, Los Angeles (UCLA).[2] In 2008 he visited a friend’s house, where he saw his friend’s son playing a video game depicting him as a player in a college basketball competition.[3] The producer, Electronic Arts (EA), based video games on the concept of college football and men’s basketball.[4] O’Bannon saw an avatar with a striking resemblance of himself, playing for UCLA with his jersey number 31. He never consented to the use of his likenesses nor did he receive any financial remuneration for its usage.[5] For this reason, O’Bannon filed a lawsuit against the NCAA (National Collegiate Athletic Association) and the CLC (Collegiate Licensing Company) for using his NILs for commercial purposes.[6] The main argument supported by his legal counsel was that the NCAA restrictions on compensation for student athletes beyond university scholarships impose a limitation on trade under Section 1 of the Sherman Antitrust Act.[7] In June 2014 the claims based on antitrust law found a solid ground and the case was sent to the district court.[8] The court at first identified two markets where the NCAA rules can have a significant impact, namely the college education market and the group licensing market.[9] Afterwards, it applied the three-step Rule of Reason test in order to determine whether the NCAA restrictions on compensation for the usage of NILs violate antitrust laws.[10] After weighting the anticompetitive and procompetitive purposes of those rules, the court took the decisive third step in pursuit of less restrictive alternatives available to the NCAA in the attainment of its final goal – preserving the nature of amateur college games.[11] It ruled that there are two alternative routes, which preserve amateurism and, at the same time, protects the NILs rights of college athletes: stipends to the full cost of attendance or deferred payments as portions of the license agreements concluded between third party licensing companies and universities upon completion of their college education.[12] The NCAA objected to the district court’s decision on the ground that the court in the Board of Regents[13] declared the NCAA rules a matter of law and compensation norms, falling outside of the scope of a commercial activity, and therefore not covered by the Sherman Act. Finally, the association claimed that the plaintiffs failed to demonstrate injury as a result of the restrictions on compensation.[14] The Court of Appeal for the 9^th circuit ruled on the case as follows.

The judgment of the Court of Appeal for the 9^th circuit

Preliminary questions

The court started the legal discussion by answering to some preliminary legal questions before ruling on the substance. It rejected the notion that Board of Regents automatically renders the NCAA’s rules valid as a matter of law.[15] In fact, “a restraint that serves a procompetitive purpose can still be invalid under the Rule of Reason”.[16] Thus, procompetitive rules are not necessarily deemed lawful.[17] Moreover, rules designed to promote competitiveness “surely affect commerce” and, therefore, fall under the scope of the Sherman Act, according to the reasoning of the Court of Appeal in the 9^th circuit.[18] Finally, the court disagreed with NCAA in finding that the plaintiffs have no standing for failing to demonstrate the injury inflicted by the compensation rules.[19] On the contrary, the plaintiffs have shown willingness and readiness by video game producers to pay for their NILs rights have they possessed these rights, which means that the requirement of antitrust injury in this case is satisfied.[20]

Rule of Reason test

Judge Bybee then continued with the application of the Rule of Reason as assessed in relation to the restrictive measures towards compensation of student athletes.

1. Anticompetitive effect

The court concluded that the NCAA’s rules have an anticompetitive effect on the college education market and invalidated the association’s arguments.[21] It further examined whether the rules produce a procompetitive effect on the market and concluded that the district court has indeed undermined the importance the NCAA pays with regard to the preservation of amateurism in college competitions.[22]

2. Procompetitive purposes

Henceforth, the court outlined two procompetitive purposes of the NCAA’s restrictions: integrating academia with athletics and fostering the popularity of NCAA by promoting amateurism.[23] Nonetheless, it was highlighted that not every restrictive rule preserves the nature and distinctive character of college amateur sports.[24] For this reason, it should be examined whether there are any substantially less restrictive measures available to attain the goals intended by NCAA.[25]

3. Substantially less restrictive alternatives

The appellate court concurred with the district court on the first alternative, namely the grants-in-aid up to the full cost of attendance. The court for the 9^th circuit stated that “the district court did not clearly err in its judgment”[26] and “indicated that raising the grant-in-aid cap to the cost of attendance would have virtually no impact on amateurism”.[27] In fact, “there is no evidence that this cap will significantly increase costs”,[28] since NCAA already granted permission to schools to fund athletes to the full cost of attendance.[29] Nevertheless, the court rejected cash compensation beyond college scholarships to athletes on the ground that if amateur sportsmen receive a payment, they lose their amateur status.[30] The central question which needs closer attention is whether payments to amateur athletes promote amateurism more than the lack of any such remuneration.[31] The court, thus, contended that the comparison between smaller and larger sums and their respective impact on the market is irrelevant, since this is not a point of discussion in this analysis: it would not crystalize whether “paying students small sums is virtually as effective in promoting amateurism as not paying them”.[32] It further rejected the analogy with professional baseball and the Olympic Games, when in 1970s there was a strong opposition against the raising salaries of baseball players and the Olympic Committee permitted the participation of professional athletes in the Games.[33] The court, however, did not agree with this line of reasoning, since the Olympics have not been so impacted by the introduction of professionalism as college sports would be.[34] Finally, the imposition of a 5000-dollar yearly ceiling of deferred payments to college athletes lacks solid argumentation.[35] Neal Pilson, a former sports consultant at CBS and an expert witness for the NCAA, did not opine on how cash compensation relates to the promotion of amateurism and his ‘offhand comment’ does not grant sufficient support for such a revolutionary turnover in the NCAA’s practice.[36] Consequently, the deferred payment alternative failed the Rule of Reason test and was, thus, rejected.[37]

On these grounds, the court concluded that a stipend beyond sports scholarships up to the full amount of college attendance is a substantially less restrictive measure, which withstands the Rule of Reason test, while the cash compensation argument failed the assessment. 

Commentary

This judgment demonstrates a remarkable, yet confusing line of reasoning followed by the appellate court. On the one hand, albeit already affirmed by the NCAA itself, the decision confirms the right of schools to provide compensation up to the full amount of attendance to college athletes. On the other hand, however, the court could have outlined more clearly the instances in which an athlete can qualify for such full compensation and those cases in which student athletes risk violating their legal status of amateurs. A clear example of the court’s reluctance to give more specific guidelines with regard to this subject matter is the rejection of the argument raised by the district court in relation to the compensation received by college tennis players. Although they still qualify as amateurs, tennis competitors earn arguably around 10,000 dollars yearly in prize money.[38] The court conveniently circumvented this argument without stating opposing views or contesting the afore-mentioned statement. It directed its full attention on how the substantially less restrictive measures can contribute to the promotion of amateur college sports instead. In fine, there are two legal points that need further examination. Firstly, amateurism is a relevant concept as long as it relates to consumer demand in antitrust claims.[39] The question at step 3 should, thus, be reformulated to whether less restrictive alternatives are virtually effective in preserving consumer interest in college sports as those prohibiting extra compensation to amateur athletes.[40] In this respect, popular demand by consumers should be the decisive factor in antitrust cases within the sports sector. Secondly, what should also be taken into more careful consideration is that the court on appeal has skipped an essential step in the Rule of Reason analysis and, thus, arguably misapplied the concept.[41] Upon identification of less limiting measures for the attainment of the main goal, one has to balance the harm those alternatives might produce against the benefits there might be if such measures were not implemented. This final stage is necessary as to provide an objective cost-benefit analysis of a legal rule, which in turn determines whether it withstands the reasonableness test. Had the court applied the Rule of Reason in such a manner, the outcome of the case would have potentially differed significantly; the court would have weighted the cost of paying cash compensation to student athletes for their NILs rights against the lack of such additional educationally unrelated payment in the attainment of the NCAA’s final aim, namely preserving amateurism in college sports. [42]  Rather, as Chief Judge Thomas stated in his opinion, it is important to underline that, in the light of US antitrust rules, it is the preservation of popular demand for college sports which should be the key factor in the legal analysis of competition issues in such a scenario.[43]

At the end of the day, the NCAA’s dilemma is solved by the appellate court by exempting the association from further financial obligations towards college athletes. Both parties have 90 days after the release of the court’s decision to “weigh their options” for appeal before the Supreme Court.[44]

[1] Edward O'Bannon, Jr. v. National Collegiate Athletic Association (the NCAA) and Electronic Arts, Inc and Collegiate Licensing Company (CLC) 14-16601 (2015) [hereinafter referred to as ‘O’Bannon v NCAA (2015)’]; O’Bannon v. NCAA 7 F. Supp. 3d 955 (N.D. Cal. 2014) [hereinafter referred to as ‘O’Bannon v. NCAA (2014)’].

[2] Ibid, p 12.

[3] Ibid.

[4] Ibid.

[5] Ibid.

[6] Ibid.

[7] Section 1 of Sherman Antitrust Act of 1890 15 U.S.C. states that ‘every contract, combination… in restraint of trade or commerce’ should be prohibited.

[8] O’Bannon v NCAA (2015) (n 1), p 14.

[9] O’Bannon v. NCAA (2014) (n 1), paras 956-968.

[10] Ibid., paras 984-1009.

[11] Ibid., paras 1005-1006.

[12] Ibid.

[13] NCAA v. Board of Regents of the University of Oklohoma 468 US 85 (1984).

[14] O’ Bannon v. NCAA (2015) (n 1), p 25.

[15] Ibid., p 26.

[16] Ibid., p 31.

[17] Ibid., p 32.

[18] Ibid., p 36: “We simply cannot understand this logic. Rules that are “anti-commercial and designed to promote and ensure competitiveness” […] surely affect commerce just as much as rules promoting commercialism.”

[19] Ibid., pp 37-43.

[20] Ibid., p 43.

[21] Ibid., pp 47-48.

[22] Ibid., pp 48-52.

[23] Ibid., p 51.

[24] Ibid., p 52.

[25] Ibid.

[26] Ibid., pp 54.

[27] Ibid.

[28] Ibid., p 56.

[29] Ibid.

[30] Ibid., p 57: “But in finding that paying students cash compensation would promote amateurism as effectively as not paying them, the district court ignored that not paying student-athletes is precisely what makes them amateurs”.

[31] Ibid., p 56: “The question is whether the alternative of allowing students to be paid NIL compensation unrelated to their education expenses, is “virtually as effective” in preserving amateurism as not allowing compensation.”

[32] Ibid., pp 58-59.

[33] Ibid., p 59.

[34] Ibid.

[35] Ibid., p 60.

[36] Ibid: “But even taking Pilson’s comments at face value, as the dissent urges, his testimony cannot support the finding that paying student-athletes small sums will be virtually as effective in preserving amateurism as not paying them.”

[37] Ibid., p 63 : “The Rule of Reason requires that the NCAA permit its schools to provide up to the cost of attendance to their student athletes. It does not require more.”

[38] O’Bannon v. NCAA (2014) (n 1), para 1000.

[39] Chief Judge Thomas, concurring in part and dissenting in part, p 68.

[40] Ibid.

[41] Carrier M (2015) How Not to Apply the Rule of Reason: The O’Bannon Case. Rutgers University School of Law – Camden. http://ssrn.com/abstract=2672256. Accessed 20 October 2015.

[42] O’ Bannon v. NCAA (2015) (n 1), p 59: “The district court adverted to testimony from a sports management expert, Daniel Rascher, who explained that although opinion surveys had shown the public was opposed to rising baseball salaries during the 1970s, and to the decision of the International Olympic Committee to allow professional athletes to compete in the Olympics, the public had continued to watch baseball and the Olympics at the same rate after those changes”.

[43] Supra n 39, Chief Judge Thomas: “Rather, we must determine whether allowing student-athletes to be compensated for their NILs is ‘virtually as effective’ in preserving popular demand for college sports as not allowing compensation”.

[44] Tracy M and Strauss B, Court Strikes Down Payments to College Athletes (The New York Times.com, 30 September 2015). http://www.nytimes.com/2015/10/01/sports/obannon-ncaa-case-court-of-appeals-ruling.html?_r=0. Accessed 2 October 2015.