Alan Cotler and Robert Litan | Educating Ivy League student-athletes

In his song “No Surrender,” Bruce Springsteen wrote, “We busted out of class, had to get away from those fools. We learned more from a three-minute record, baby, than we ever learned in school.”

Today, as Ivy League student-athletes, you have the opportunity to learn a great deal about life outside the Ivy League classrooms. You will experience successes, failures, joys, and sadnesses. The real world in and after college will challenge you to better understand and deal with power politics, elitism, arrogance, greed, backstabbing, irrational behavior, and hypocrisy. Life is not easy.

As student-athletes, you have worked your asses off on and off the field. You have conditioned your bodies to absorb the pain, pushed your muscles to excel in motion, studied techniques of your sport, read books, worked with trainer gurus, modeled yourself after mentors, sacrificed time, money, effort, and fun. You have steeled your minds for intensity, pressure, focus, competition, risk of failure, and more, all to achieve personal goals, to be part of team dynamics and sisterhood, and to win championships, in this case for Penn.

To attain the status of a Division-I student-athlete in today’s world is an accomplishment many non-athletes, faculty, provosts, Ivy League presidents, and trustees cannot know or appreciate — unless they have achieved that rarified air themselves or lived it through their own children. Rather, there are faculty who have no comprehension of any of the above, and for some who never experienced this marriage of mind, body, and soul, they may even have antipathy for your athletic pursuits. Perhaps you’ve encountered faculty who have refused to reschedule an exam for you when you were on an away trip with your team. They lack the experience of what sport and athletic skills can mean to a human being.

We wrote about the current revolution in college athletics for The Daily Pennsylvanian over three years ago on Aug. 13, 2021. We wrote that the Ivy League needed to join the other 357 D-I universities by offering you athletic scholarships and more. You earned it, and you deserve it. You devote at least 30 hours per week to your sport and in some weeks far more. Trying to study at 9 p.m. after those hours of practice, dinner, and getting back to your dorm or the library is not a simple task. Fatigue and the need for sleep impede the ability to focus and concentrate. Your classmates who are not D-I student-athletes have a profound advantage over you with many more hours of study time and a chance for better sleep hygiene.  

We advocated that the Ancient Eight must repeal its longstanding agreement prohibiting a school from giving merit aid to you and other students with special skills — chess masters, musicians, dancers, math geniuses. We wrote that the eight Ivy League schools needed to compete for your services, just as provosts, faculty members, athletic directors, school presidents, and coaches can have the schools compete for theirs.

We wrote that the eight Ivy League schools had endowments now at around $200 billion, from which they can easily afford to pay for the merit aid of student-athletes and others. The Ivy League is by far the richest conference in all of D-I sports. No conference even approaches the Ivy League’s endowments. 

We wrote about the United States Supreme Court’s 2021 9-0 decision in NCAA v. Alston that was a hand grenade blowing up the old, outdated notions about how college student-athletes were amateurs undeserving of the protections of our nation’s antitrust laws. The unanimous Supreme Court decision held that such concepts of amateurism were outdated and nonsensical in today’s world. The economic reality is that the narrative has changed with schools, administrators, athletic directors, coaches, television and radio, and others making billions of dollars off of the backs of college student-athletes. We wrote three years ago that it was time for the Ivy League presidents and trustees to be transparent and open-minded about these issues and join the other 357 D-I schools by giving at least scholarships to you, the student-athletes, and others.

Since then, these presidents and trustees have done nothing to join the other 357 D-I schools which give scholarships to the 190,000 student-athletes who compete for them. They are doubling down and doing the opposite. As lawyers with the class action firm Berger Montague, we then joined with the firm of Freedman Normand Friedland to sue the eight Ivy League schools and the Ivy League in federal court in Connecticut. 

Our expertise on these issues runs deep. One of us, Alan Cotler, was the point guard for the 1971-72 Penn men’s basketball team that went 25-3, was ranked No. 3 in the nation, and reached the Elite Eight in the NCAA tournament. His Class of 1972 team had a four year record of 99-6 and was ranked No. 3 in the nation every year. Cotler was one of four players on that team drafted by the NBA. His backcourt mate, Corky Calhoun, was the No. 4 pick in the draft by the Phoenix Suns. Cotler went on to receive an MBA from the Wharton School and is now a Philadelphia trial lawyer. Those teams that Cotler was on produced lawyers, successful businessmen, NBA players, NBA and college coaches, NBA general managers, athletic directors, and for over 50 years, they have all consistently kept in touch with each other as lifelong friends. 

For Robert Litan, our other columnist, his prolific career in antitrust litigation spans several decades. He was formerly deputy assistant attorney general in the Antitrust Division of the Justice Department. He has held other high-level positions in the government and private sector, including as associate director of the office of management and budget, as vice president and director of economic studies at the Brookings Institution, and as director of research at Bloomberg Government and the Kauffman Foundation. He has also authored or co-authored 30 books and over 300 articles on a broad range of economic policy and legal issues. 

Given our backgrounds, our respect for the rights of Ivy League student-athletes, and our love for Penn and the opportunities it has afforded us, we could not sit on our hands and watch the Ivy League leaders ignore the tidal wave of change in college athletics today.

We asserted in the lawsuit that the eight Ivy League schools violated antitrust laws and impeded competition for your services by prohibiting scholarships and compensation. Seventeen months after legal briefs were filed on the issue, the trial judge granted the defendants’ motion to dismiss our complaint before we were given the right to take discovery — that is, before we could get the Ivy documents, emails and texts, and take depositions of Ivy League administrators, coaches, and presidents. The judge primarily ruled that we did not define a market properly that precluded competition for your services. We have since appealed that ruling to the U.S. Court of Appeals for the Second Circuit and legal briefs to the court are being filed presently.

So while we wait to see if the complaint will be reinstated and facts can be determined from discovery, what does all of this mean for you as Ivy League student-athletes at Penn? It means you can educate yourselves about these issues and your rights so that you can determine what conduct, if any, you want to take. Moreover, what meaningful action can you take for yourself and the thousands of student-athletes who will follow you?

You can discuss these issues with teammates, friends, coaches, parents, and trusted advisors. Are you finding that coaches do not want to touch these issues? We do not hear much from the presidents, trustees, coaches or the administrators, or the athletic directors of Ivy League institutions. In fact, we hear nothing from them. Why? In the open-minded, transparent, enlightened Ivy League, are there forces at play that squelch such issues from open and free debate?  Do some of these Ivy League administrators, coaches, and the like feel intimidated? Fear losing their jobs?

You student-athletes are extremely busy with responsibilities to yourself and to others. You have many obligations to meet, including the need to study intensely and extensively to achieve your academic goals. And you have the need to be with friends, satisfy your interests and hobbies, meet with family, and keep abreast of politics, culture, and religion. And to strive for championships in your sport, after thousands of hours of practice and work at your craft.  

Your lives are incredibly busy and stressful. It is a remarkable schedule and lived experience that you negotiate. It is a cliche, but true, that these are the challenges that mold you and help you grow to do something special in the future. The fact that you are a student-athlete does not connote lesser academic ability. On the contrary, what you learn from athletics broadens your horizons and molds you for positions of leadership.  

Springsteen wrote, “We made a promise we swore we’d always remember, no retreat, baby, no surrender. Like soldiers in the winter’s night with a vow to defend, no retreat, baby, no surrender.”

It is all part of the education of Ivy League student-athletes.

ALAN COTLER is a 1972 Wharton graduate, 1974 Wharton MBA graduate, and former Wharton Business Law Professor. He also holds a J.D. from Georgetown University. He is currently of counsel at Berger Montague, a Philadelphia-based litigation firm. His email is alancotler@gmail.com.

ROBERT LITAN is a 1972 Wharton graduate. He holds a J.D. and a Ph.D. from Yale University. During his time at Penn, he was a manager in his first year for Cotler’s basketball team and assisted coaches Dick Harter and Digger Phelps with data analytics. He is currently a shareholder at Berger Montague and has a career in antitrust litigation and economic research, including in government and the private sector. His email is rlitan@bm.net.

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