Former Five-Star Recruit Seeks SCOTUS Review for Case vs. Adidas
Former McDonald’s All-American and five-star recruit Brian Bowen II petitioned the U.S. Supreme Court this week to hear a case centering on the business interests of athletes to play college sports and develop as pro prospects.
Bowen v. Adidas, which accuses Adidas of racketeering, provides an opportunity for the nation’s highest court to declare that college athletes have a protected interest in positioning themselves for sports drafts. This ruling would effectively expand the reach of NCAA v. Alston (2021), which centered on education-related expenses, into the realm of athletic play.
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In the case, Bowen blames Adidas of robbing him of his business and property interest in playing at a top college basketball program and the accompanying development he would have obtained as an NBA prospect. Seven years ago, Bowen lost the chance to play for coach Rick Pitino at Louisville in the aftermath of Adidas officials fraudulently scheming to steer Bowen and other star recruits to Adidas-sponsored schools. The conspiracy led to convictions of former Adidas executive James Gatto, former Adidas consultant Merl Code and client recruiter Christian Dawkins.
A federal judge noted that Bowen had no knowledge of the misconduct; he was instead collateral damage. Bowen went on to play professionally in Australia and appeared in 12 games for the Indiana Pacers from 2019 to 2021. He currently plays in the G League.
The NCAA isn’t a party to Bowen’s case but has a clear stake in its outcome. The NCAA arguably serves as a de facto minor league system for the NFL, NBA and WNBA, all of which have collectively bargained eligibility rules denying a player’s entry directly out of high school. That means access to college sports is instrumental to some prospects’ careers, especially for NFL players who lack a minor league option outside of college football. The situation is less restrictive for elite 18-year-old men’s basketball players who don’t suit up for a college team, since they can play professionally in the G League or overseas as they wait out the NBA’s eligibility rule, which for U.S. players requires they be 19 years old plus one year out of high school. As for U.S. women’s basketball players, they can play overseas or in college before they meet the WNBA’s eligibility requirement of being 22 years old, a college graduate or four years removed from high school.
Last year, U.S. Court of Appeals for the Fourth Circuit judges Allison Rushing and Toby Heytens sided against Bowen. They reasoned Bowen hadn’t lost a property interest since his athletic scholarship didn’t guarantee development as a basketball player. It only covered tuition, fees, room board and miscellaneous other expenses related to attending the University of Louisville. Louisville didn’t deprive him of those benefits.
But in a dissenting opinion, Judge Robert King concurred with Bowen that he had been unlawfully denied “a crucial period for purposes of player development” that might have led to him becoming a first-round pick in the NBA draft. As King saw it, Bowen’s matriculation to Louisville was a business decision in that he was preparing for an NBA career. From that vantage point, Bowen’s loss of NCAA eligibility was not about being a student who plays a sport on a full ride. It was about the loss of a chance to play at the highest level of college basketball under the tutelage of a Hall of Fame coach.
King maintained his reasoning was consistent with Alston, where the Supreme Court ruled 9-0 that NCAA rules barring members from offering athletes compensation for education-related expenses violated antitrust law. King stressed how the majority opinion, authored by Justice Neil Gorsuch, illuminated pro prospects and other college athletes “hav[ing] nowhere else” aside from the NCAA to “sell their labor.” That line of reasoning is arguably consistent with the idea that NCAA eligibility, at least for pros prospects, is fundamentally a business matter geared towards advancement as a pro prospect–and a business or property interest the law ought to protect as it does for other professions.
In his petition to the Supreme Court, Bowen, through attorneys Colin Ram and William Wilkins, builds on King’s dissent. Bowen described his Louisville recruitment as a business transaction. Bowen would gain “elite coaching” and “immediate playing time” on games televised on ESPN against fellow pro prospects, along with access to professional-quality athletic training. In exchange, Bowen would provide “his nationally recognized talent, skill and labor” through which Louisville would generate revenue and attract acclaim that benefits fundraising and admissions goals.
Bowen’s petition also draws from Justice Brent Kavanaugh’s concurring opinion in Alston, in which Kavanaugh described college athletes as the working labor of a lucrative college sports industry that conspires against the labor. NCAA rules deny pay to laborers, Kavanaugh asserted, despite those laborers generating the billions of dollars used to finance salaries for “college presidents, athletic directors, coaches, conference commissions and NCAA executives.” Kavanaugh went so far as to declare the “NCAA’s business model would be flatly illegal in almost any other industry in America.” He also asserted the treatment of college athletes is especially egregious given that many “are African American and from lower-income backgrounds.”
Bowen’s petition acknowledges that Alston concerned antitrust law, with competing businesses (colleges and conferences) conspiring through the NCAA to limit how they recruit and retain athletes, while his case is about racketeering, meaning illegal bribery, fraud and money laundering. But the petition insists “business or property” as defined under antitrust law is essentially defined the same as in the Racketeer Influenced and Corrupt Organizations Act. From that lens, Bowen maintains, the logic that shaped Alston ought to be applicable to Bowen as well.
Statistically, Bowen faces long odds that at least four justices—the minimum needed to grant certiorari—will agree to hear his case. The Supreme Court only grants cert to about 1% of 2% of petitions.
But aggregate stats are sometimes misleading. Bowen’s odds may be better given the legal chaos presently facing college sports.
Maybe there are four justices—such as Kavanaugh, Gorsuch and at least two other NCAA critics, be they Amy Coney Barrett, Clarence Thomas or Samuel Alito—who eye the chance to clarify how college athletes ought to be treated under the law.
The NCAA is currently litigating a bevy of lawsuits, including Johnson v. NCAA, In Re College Athlete NIL Litigation, Ohio v. NCAA, Tennessee & Virginia v. NCAA, Carter v. NCAA, and Hubbard v. NCAA. Meanwhile, two NCAA members—Dartmouth College and the University of Southern California—are attempting to fend off player employment recognition bids at the National Labor Relations Board. The Supreme Court’s guidance on college athletes’ rights could prove more invaluable now more than ever before.
It would be ironic if an athlete who never played in a college game brings a case that fundamentally changes college sports. But these days when it comes to the NCAA and the law, anything is possible.
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