Overtime Elite Alumni Bewley Twins Denied Injunction Against NCAA
New developments in the Bewley brother’s saga unfolded this week. Twin brothers and current Chicago State students Matt and Ryan Bewley petitioned the NCAA to recognize their eligibility to compete before the 2023-2024 men’s basketball season. The twins had previously attended Overtime Elite Academy (OTE), a private school and basketball league providing an “alternative pathway” for basketball players aged 16-20.
As is standard with OTE’s offerings, the twins were compensated for their athletic ability with a reported base salary of $100,000, performance bonuses, apparel royalties, and other licensing payments.
Due to longstanding amateurism rules, the NCAA denied the twins’ eligibility, as they had accepted payment for their on-court labor, thus making them professionals. This NCAA determination came one week before the start of the basketball season; immediately, the Bewleys launched a federal antitrust lawsuit with the NCAA in the crosshairs. The Bewleys claimed that their payments from OTE were not for on-court labor but rather their Name, Image, and Likeness and that NCAA restriction against players who have previously received compensation for play violates antitrust law.
The NCAA, no stranger to being a defendant in such cases, was able to avoid the twin’s request for Temporary Restraining Order in November. An opposite ruling would have allowed the twins to suit up for Chicago State, at least temporarily, until a preliminary injunction could be ruled upon.
On Wednesday, Federal District Judge Robert Gettleman denied the preliminary injunction requested by the twins, making the hopes of the Bewleys suiting up during the pendency of litigation incredibly slim. While there has been no clear indication of whether the twins plan to appeal the denial of the preliminary injunction, this would be the only remaining route for the Bewleys to play during the current season.
This potential appeal would be a tall order, as the standard of review in such circumstances is abuse of discretion. This standard is very challenging for an appellant to succeed; in non-legal terms, the brothers must prove that the lower court made an error so egregious that they could not have been offered a fair shot at justice.
While the Bewleys could not succeed in their motion for preliminary injunction, they will still have their day in court. However, it is important to note that part of the calculus in a ruling on a preliminary injunction is a plaintiff’s “likelihood of success on the merits,” with the Bewley’s failing to hit the mark, it seems unlikely that new evidence will surface and be persuasive to Judge Gettleman during the trial.
With NIL Collectives acting as proxy payrolls for student-athletes, it begs the question of why this delineation between professional and amateur matters. That is, after all, the central question of this case.
While in theory (and sometimes practice), collective contracts are “pay-for-play,” they are not professional contracts. At least in language and structure, they are publicity rights deals. With the explicit professionalism of college athletes, without the guise of NIL, there is little room legally to avoid an employment regime for college athletes. Without proffering an opinion either positively or negatively on the impact of an employment system, reconstruction of college sports in this manner would have consequential implications on, but not limited to, non-revenue athletes, international athletes, Title IX, and roster sizes.
It is undisputed that NIL is able to pay athletes like their professional peers covertly through collectives. However, the legal fiction of NIL being distinguishable from outright professional payment may be necessary to protect the delicate economics of collegiate athletes that were constructed prior to the explosion of college football and basketball media valuations. The massive revenue-generating power of college football and basketball has reached a critical mass where both public perception and courts view an NCAA system that denies payment to athletes as exploitative; however, in righting this antiquated system, there is a potential to remove long-standing benefits granted to non-revenue athletes as an externality of the old system.
To maintain fundamental components of college athletics whilst paying athletes, something may have to give. Unfortunately, for the Bewleys, it may have to be them.
