Adidas Wins in RICO Suit by Louisville Hoops Prospect Bowen
In a divided decision that could attract the U.S. Supreme Court’s attention, the U.S. Court of Appeals for the Fourth Circuit last Thursday rejected former McDonald’s All-American and five-star recruit Brian Bowen II’s appeal in his racketeering lawsuit against Adidas.
Should Bowen petition the Supreme Court for review, some of the justices might see the case as a useful follow-up opportunity from its 2021 ruling in NCAA v. Alston to further address the legality of NCAA amateurism.
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Bowen’s collegiate career ended before it began. He was set to play for Rick Pitino at Louisville in 2017, but the school tossed him from the team after the college basketball corruption scandal drew headlines.
Bowen’s father, Brian Bowen Sr., had testified in a criminal trial that individuals with ties to Adidas offered him $100,000 in cash if his son would play for Louisville, a school with an Adidas contract. Bowen was also seriously considering Oregon, a Nike school.
After Louisville removed Bowen from the basketball team, he transferred to South Carolina but was declared ineligible. He entered the 2019 NBA Draft but wasn’t picked. Now 25, the 6’7” swingman appeared briefly in a dozen NBA games between 2019 and 2021, but most of his on-court time has been in the G League or in Australia’s National Basketball League. Bowen was signed by the Iowa Wolves, the G League affiliate of Minnesota, in March of this year.
Bowen argues Adidas and its associates are responsible for the loss of benefits connected to his NCAA eligibility, namely his development as an NBA prospect and the chance to play for a top program and against other NBA prospects. His case is a private civil action under the Racketeer Influenced and Corrupt Organizations Act (RICO). U.S. District Judge Joseph Anderson granted summary judgment for Adidas in May 2021—a month before the Supreme Court would rule in Alston—on grounds Bowen didn’t establish a cognizable injury to his business or property.
Writing for herself and fellow Fourth Circuit Judge Toby Heytens, Judge Allison Rushing agreed that Bowen wasn’t harmed in a way the law ought to remedy.
Bowen’s theory that Adidas ruined his potential NBA career doesn’t work, Rushing wrote, “because the benefits he lost were not promised in the scholarship agreement [with Louisville].” In fact, “Bowen received everything to which his scholarship entitled him.”
The agreement stated Brown would receive the maximum compensation under NCAA rules, which limit scholarships to tuition, fees, room and board and miscellaneous other expenses. It did not promise Bowen “athletic training or services, elite coaching, preferred positions or playing time” in exchange for his commitment. Rushing, who clerked for Justice Clarence Thomas in 2010-11, reasoned that Louisville gave Bowen “exactly what the agreement promised.” Even when the school removed Bowen from the basketball team, Rushing added, it didn’t terminate his scholarship.
Although Rushing wrote that while she and Heytens “don’t doubt” five-star basketball recruits pick their college on the basis of coaching, playing time and similar expectations in hopes of blossoming into an NBA prospect, “none of those enticements . . . are guaranteed” in any agreement.
Rushing was also critical of Bowen, arguing that had he played two years for Louisville, he probably would have been a legit NBA prospect. “That,” Rushing wrote, “is not the sort of tangible business loss that supports a RICO cause of action.” She added that the “mere expectancy” of a lucrative NBA career is too speculative.
In a spirited dissent, Judge Robert King flatly disagreed with Rushing and Heytens and insisted Bowen’s loss of NCAA eligibility “easily” constitutes an injury under RICO.
King, a former federal prosecutor, emphasized that Bowen is a victim of “Adidas schemers” (i.e., James Gatto, Christian Dawkins, Munish Sood, Thomas Gassnola, Christopher Rivers and Merl Code), who plotted “to target elite young talent in the basketball world.” King underscored that in sentencing proceedings of the Adidas schemers in 2019, Judge Lewis Kaplan pronounced “probably the worst victim, [the] most seriously injured victim, of the Louisville scheme was [Brian] Bowen.” This is partly because, King explained, Bowen didn’t know about the offer to his dad.
King also emphasized an expert report submitted by retired NBA player and former Sacramento Kings assistant general manager Mike Bratz. Bratz opined that Bowen suffered an enormous injury to his career because he “missed 18 months of competition after school,” a crucial period for purposes of player development. Bowen lost the chance to receive “a level of coaching that . . . can’t be matched anywhere else” and, Bratz believes, he “would have been a first-round pick in the NBA draft.”
King insisted that he “readily and easily” views Bowen’s loss of NCAA eligibility “as a qualifying injury to a business or property interest” under RICO. Bowen committed to Louisville because it would “prepare him for a career in the NBA.” Stated differently, Bowen’s commitment to Louisville was a business decision.
To that end, King quoted Justice Neil Gorsuch’s Alston opinion, where Gorsuch wrote “student-athletes have nowhere else [other than NCAA member schools] to sell their labor.” Gorsuch wrote that statement in the context of whether, under antitrust law, the NCAA can prevent schools from paying for college athletes’ educational (not athletic) related expenses. As King (and Bowen) see it, Gorsuch’s language is consistent with the idea that college basketball players possess business and property interests to sell to NCAA member schools, and thus NCAA eligibility is a business consideration.
Bowen can petition the Fourth Circuit for a rehearing en banc, where, if granted, other Fourth Circuit judges would review the case. If that fails, Bowen can shoot for review by the Supreme Court, which would necessitate support of at least four justices (the minimum needed to grant cert). While the Supreme Court only grants cert to about 1% or 2% of petitions, Bowen v. Adidas could allow the Court to directly link the business interests of playing college sports with legal claims.
