Overtime Basketballers Sue NCAA After College Eligibility Denied
The moving target of what counts as name, image and likeness (NIL) is at issue in a federal lawsuit filed last week by two former Overtime Elite (OTE) players who are twin brothers and who contend the NCAA’s denial of their eligibility violates Illinois’ NIL statute and federal antitrust law.
Matt and Ryan Bewley, 19, played for OTE during the 2022-23 season. OTE is a basketball academy for high school players that offers coaching, training, one-on-one tutoring and other athletic and educational benefits.
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OTE players who accept salary (a base salary is $100,000 but can vary) in exchange for their labor forgo their NCAA eligibility, as the NCAA doesn’t allow former pro players to suit up. But OTE players who decline salary can preserve their NCAA eligibility and still pursue NIL deals, provided they meet applicable requirements.
The Bewleys accepted athletic scholarship offers from Chicago State University in August and intend to play there, but the NCAA denied their eligibility last month. In an eligibility statement the brothers included as a litigation exhibit, the NCAA determined they violated bylaws for amateur status, competition with professionals and contracts and compensation. The statement indicates Matt Bewley was paid $100,000 by “team/club to practice or play” and that he received an unspecified “bonus/money incentive”. A separate exhibit indicates Ryan Bewley had the same or a very similar arrangement.
The brothers portray the NCAA as acting hypocritically since—they assert—it declared Kentucky freshman and former OTE player Rob Dillingham eligible “despite the fact that he played for and received monetary compensation from OTE prior to enrolling at [Kentucky]”.
The brothers say their compensation was “comparable” to that of Dillingham, a five-star recruit who was also their teammate and classmate. Likewise, they claim they had “the same duties and obligations as Mr. Dillingham under their respective contracts with OTE.”
Last November, the Louisville Courier Journal reported Dillingham declined an OTE salary for the specific reason of preserving his NCAA eligibility. Dillingham instead intended to earn money through NIL deals. Dillingham’s NCAA eligibility was a source of media speculation earlier this year.
Represented by Dominique Price and other attorneys from Hinshaw & Culbertson in Chicago, the Bewley twins filed their complaint in an Illinois federal court on Nov. 1. The brothers seek an injunction to allow them to play and monetary damages reflecting the lost opportunity to compete in college sports. Judge Robert Gettleman is presiding over the case.
The brothers reference an Illinois NIL statute that ensures compensation from the use of NIL or voice “may not affect the student-athlete’s scholarship eligibility.” They also charge that NCAA bylaws limiting compensation for prospective college athletes are unreasonable restraints of trade. The brothers likewise contend their denial of eligibility constituted an unlawful group boycott and refusal to deal in violation of the Sherman Antitrust Act.
Attorneys for the NCAA will answer the complaint and motion for its dismissal. Expect the NCAA to argue several points.
For starters, a decision regarding one athlete’s eligibility is not automatically binding precedent on another, even in an arguably similar situation. The NCAA could point out differences between the brothers’ situation and that of Dillingham. The association will likely argue the brothers’ OTE compensation was not for NIL but instead for their labor.
Courts are usually deferential to private associations in their application of membership rules, and often require the plaintiff to prove the association acted arbitrarily or capriciously. The more convincingly the brothers show that their OTE situations were functionally the same as that for Dillingham, the more convincingly they can assert the NCAA’s approval of one and denial of the other was arbitrary.
The NCAA could try to rebut the antitrust claims by stressing no court has found its rules barring pay-for-play to violate antitrust law. While NCAA v. Alston was a high-profile antitrust defeat for the NCAA, the case concerned the ability of a college to offer athletes education-related benefits—not pay-for-play or NIL.
The term “NIL” has become definitionally murkier in recent months, particularly with some NIL collectives engaged in apparent pay-for-play. The NCAA has been hesitant to enforce pay-for-play rules with NIL, supposedly due to antitrust concerns. Empirical analysis and antitrust precedent suggest those concerns may be overblown.
Bewley & Bewley v. NCAA will be worth following as the legal contours of NIL gradually take form.
(This story has been updated in the headline.)
