Overview

Matthew and Ryan Bewley are 19-year-old twin brothers from Ft. Lauderdale, Florida. The Bewleys were 5-star basketball prospects in the class of 2023, receiving scholarship offers from several major programs. They spent two seasons at Overtime Elite Academy (“OTE”) in Atlanta, GA before accepting scholarships from Chicago State University in June.

The Bewleys have sued the NCAA in federal court alleging they were ruled ineligible due to compensation they received for the use of their name, image, and likeness (“NIL”) while they were playing for OTE. Less than a week prior to their first scheduled game, the NCAA issued a decision determining that the Bewleys were ineligible to play. This decision was made several months after it reached the opposite decision for some of the Bewleys’ former classmates and teammates at OTE.

On Tuesday, November 14th, a judge denied the Bewleys’ motion for a temporary restraining order (TRO). If granted, this relief would have reinstated the NCAA eligibility for a minimum of 14 days or until a hearing for preliminary injunction is ruled upon.

The Bewleys are seeking injunctive relief to prevent further irreparable harm as a result of being excluded from intercollegiate athletics which includes: the inability to participate in the team’s upcoming games, the loss of NIL income and scholarships, and other educational benefits and aid.

The Contracts with OTE:

The Bewley brothers agreed to athletic scholarships to cover education-based expenses throughout their high school careers with OTE. They also assigned their NIL rights to OTE for the term of their contracts in exchange for monetary compensation.

The assignment of their NIL rights is permitted, like any other US citizen who has ownership over their NIL. The Bewley’s contracts are not prohibited by Georgia law, and they align with NCAA’s interim policy which permits NIL deals in accordance with the laws of each respective state.

The Cause of Action:

The NCAA alleged: (1) the Bewley’s OTE compensation exceeded “actual and necessary” expenses; (2) The Bewleys competed for a team that considered itself professional; and (3) the Bewleys competed with and against professionals.

Count 1: Violation of Illinois Statute 110 ILCS 190/15(a)

a) NCAA Bylaws regarding student-athletes playing professionally:

NCAA Bylaw 12.2.3.2 permits prospective student-athletes to play for professional teams against other professionals prior to enrolling in a member institution and may be compensated as long as the student does not receive more than “actual and necessary expenses."

The Bewleys argue that based on NCAA bylaws, they were allowed to play for a professional team prior to collegiate enrollment. They further argue that because their contract is not prohibited by Georgia law, it aligns with the NCAA’s interim policy which permits NIL deals in accordance with the laws of each respective state. The only limitation rests on their compensation which is discussed below.

b) The Bewley’s Compensation and Eligibility

The suit provided that the allegations stated above are completely inconsistent with the NCAA rulings regarding former OTE athletes who competed on the same teams, against the same competition, and received the same compensation. The suit alleged that the ruling is a direct violation of Section 15 (a) of Illinois’ Student-Athlete Endorsement Rights Act which states: “Compensation from the use of a student-athlete’s name, image, likeness, or voice may not affect the student-athlete’s scholarship eligibility, grant-in-aid, or other financial aid, awards or benefits, or the student-athlete’s intercollegiate athletic eligibility."

The Bewleys allege that they are entitled to a permanent injunction preventing the NCAA from enforcing its regulations that completely contradict Illinois’s Student-Athlete Endorsement Rights Act.

Furthering their claim, the brothers allege NCAA Bylaw 12.2.3.2 permits student-athletes to be compensated by a professional team as long as the student does not receive more than “actual and necessary expenses.”

The above NCAA bylaw (12.2.3.2.1) specifically limits the compensation a prospective student-athlete may receive from their participation on a “professional team” to “actual and necessary expenses." If the NCAA decides that if the student-athlete received any amount above what they deem to be “actual and necessary," they reserve the right to permanently exclude the prospective student-athlete from competition.

While the NCAA has determined that the Bewleys' compensation was above their threshold, the Bewleys' complaint alleges that the NCAA failed to recognize the portion of their compensation that was received in exchange for their NIL rights. The Bewleys' contract provided compensation for educationally related “actual and necessary expenses," but under NCAA bylaws and Illinois law, the Bewleys are also lawfully permitted to receive compensation in exchange for the use of their NIL separately, prior to enrolling in an NCAA member institution. In all, the Bewleys argue that under Illinois state law, compensation based on their NIL rights cannot affect their athletic eligibility.

Count 2: Violation of Section 1 of the Sherman Act – 15 U.S.C §1 Unreasonable Restraint of Trade

The Bewley’s complaint also proposes that the allegations above are in violation of Section 1 of the Sherman Act (15 U.S.C. §1) which states: “Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal." The suit alleges that the NCAA has entered into a continuing contract “in restraint of trade in the relevant markets to artificially depress, fix, maintain, and/or stabilize the prices paid to prospective student-athletes like the Bewleys for their participation in athletics and the use of their NIL.”

The complaint further alleges that NCAA Bylaw 12.3.2.1 unlawfully restricts the compensation a prospective student-athlete may receive for his or her participation on a professional team or other league prior to enrolling in an NCAA member institution. The Bewleys allege that the anticompetitive and illegal scheme has unreasonably restrained trade and that they are entitled to a permanent injunction that prevents the violations of law.

Count 3: Violation of Section 1 of the Sherman Act – 15 U.S.C. § 1 Unreasonable Restraint of Trade – Group Boycott / Refusal to Deal

The Bewley brothers also allege that the NCAA has further violated Section 1 of the Sherman Act (15 U.S.C §1) because their group boycott/refusal to deal consists of “(1) Defendant’s acts to prevent prospective student-athletes from being freely compensated for their participation in athletics and use of their images, likeness and/or names and/or (2) Defendant’s exclusion of prospective student-athletes that have received compensation above its “actual and necessary” threshold from intercollegiate athletics."

The Bewleys argue that the NCAA is imposing limitations on a student-athlete's right to be compensated for their labor, and limit their rights related to the use of their NIL. It is alleged that this forecloses them from full access to the marketplace, and the “eligibility rules are used as a threat of boycott to force prospective student-athletes to abide by their rules, even before they have enrolled in a member institution."

Claims of Irreparable Harm:

The Bewleys are claiming that the NCAA’s decision to bar the brothers from intercollegiate athletics has caused and will continue to cause irreparable harm including:

a) Loss of scholarships and related benefits including tuition, room and board, coaching, training, and the use of education services, tutoring, etc.;

b) Inability to compete at the highest level of competition for basketball prospects in their age bracket;

c) Loss of access to NIL endorsement opportunities reserved for collegiate athletes;

d) Damage to reputation; and

e) Damage to their NBA draft stock.

My Take:

The Bewley twins' legal battle against the NCAA highlights the complex and inconsistent landscape of eligibility rules concerning the use of NIL rights.

The NCAA's decision to declare the Bewleys ineligible just days before their first scheduled game has left them on the sidelines for four missed games so far, likely contributing to Chicago State's 1-3 start. With an additional nine games slated to be missed before the case is heard, the brothers are grappling with the tangible consequences of their legal pursuit.

The heart of the matter lies in the Bewleys' contracts with OTE, where they assigned their NIL rights in exchange for compensation—a practice permitted both by Georgia law and by the NCAA's interim policy. The discrepancy arises as the NCAA contends that the compensation exceeded "actual and necessary" expenses, while the Bewleys argue that their contract aligns with state laws and with NCAA guidelines.

The Bewleys' situation underscores the inconsistencies between state laws and NCAA regulations, emphasizing the necessity for a comprehensive approach to avoid such disputes in the future. As the brothers seek injunctive relief, including the restoration of their NCAA eligibility, the case prompts reflection on the broader issue of student-athlete rights and fair treatment.

Madison Greco is a second-year law student at Suffolk University Law School in Boston. She can be found on Twitter @mtgreco_ and LinkedIn (Madison Greco).

Sources:

Lawsuit:https://www.courthousenews.com/wp-content/uploads/2023/11/bewley-v-ncaa-complaint-us-northern-district-illinois.pdf

Sherman Act: https://www.law.cornell.edu/uscode/text/15/1

NCAA Bylaws: https://web3.ncaa.org/lsdbi/search/bylawView?id=8740