*152OPINION OF THE COURT

Renwick, J.

In this action, plaintiffs seek damages and injunctive relief for an alleged violation of the statutory right to privacy. Concerns over privacy and the loss thereof have plagued the public for over a hundred years.1 Undoubtedly, such privacy concerns have intensified for obvious reasons.2 New technologies can track thought, movement, and intimacies, and expose them to the general public, often in an instant. This public apprehension over new technologies invading one’s privacy became a reality for plaintiffs and their neighbors when a photographer, using a high powered camera lens inside his own apartment, took photographs through the window into the interior of apartments in a neighboring building. The people who were being photographed had no idea this was happening. This case highlights the limitations of New York’s statutory privacy tort as a means of redressing harm that may be caused by this type of technological home invasion and exposure of private life. We are constrained to find that the invasion of privacy of one’s home that took place here is not actionable as a statutory tort of invasion of privacy pursuant to sections 50 and 51 of the Civil Rights Law, because defendant’s use of the images in question constituted art work and, thus is not deemed “use for advertising or trade purposes,” within the meaning of the statute.

Factual and Procedural Background

Defendant Arne Svenson is a critically acclaimed fine art photographer whose work has appeared in galleries and museums throughout the United States and Europe. Beginning in or about February 2012, after “inheriting” a telephoto camera lens from a “birder” friend, defendant embarked on a project photographing the people living in the building across from him. The neighboring building had a mostly glass facade, with large windows in each unit. Defendant photographed the building’s residents surreptitiously, hiding himself in the shadows of his darkened apartment. Defendant asserts that he did so for reasons of artistic expression; he obscured his *153subjects’ faces, seeking to comment on the “anonymity” of urban life, where individuals only reveal what can be seen through their windows. After approximately one year of photography, defendant assembled a series of photographs called “The Neighbors,” which he exhibited in galleries in Los Angeles and New York.

The exhibit’s promotional materials on defendant’s website stated that for his “subjects there is no question of privacy; they are performing behind a transparent scrim on a stage of their own creation with the curtain raised high.” Defendant further stated that “The Neighbors” did not know they were being photographed, and he “carefully” shot “from the shadows” of his apartment “into theirs.” Defendant apparently spent hours, in his apartment, waiting for his subjects to pass the window, sometimes yelling to himself, “Come to the window!” A reporter for The New Yorker magazine spent time with defendant while he was surreptitiously photographing his subjects. During this time, defendant took a photo of a “little girl, dancing in her tiara; half naked, she looked like a cherub. As she turned away, [defendant] took a photograph. I don’t like it when little girls are running around without their tops,’ he said, ‘but this is a beautiful image.”

During the New York exhibition of “The Neighbors,” plaintiffs and other residents of the building learned, through media coverage of the exhibition, that they had been defendant’s unwitting subjects. Plaintiffs, in particular, learned that their children, then aged three and one, appeared in the exhibition, in the photographs numbered six and twelve. Despite defendant’s professed effort to obscure his subjects’ identity, plaintiffs’ children were identifiable in these photographs, one of which showed their son in his diaper and their daughter in a swimsuit; the other showed plaintiff mother holding her daughter. Upon viewing defendant’s website, and discovering that the photographs of her children were being offered for sale, plaintiff mother called defendant to demand that he stop showing and selling the images of her children. Defendant agreed with respect to the photo with the children together (No. 6), but was noncommittal about the photo of plaintiff’s daughter (No. 12). Plaintiffs then retained counsel, who sent letters to defendant and the Manhattan gallery where the photos were being shown, demanding that the photographs of plaintiffs’ children be removed from the exhibition, the gallery’s website, and defendant’s website. Defendant and the gallery complied. *154Plaintiffs’ counsel sent a similar demand to an online art sales site called “Artsy.” It, too, complied.

Despite this, one of the photographs of plaintiffs’ daughter (No. 12) was shown on a New York City television broadcast discussing defendant and his show. Other showings followed, including one on NBC’s “Today Show” on May 17, 2013, displaying photograph No. 12, showing plaintiffs’ daughter’s face. In addition, the address of the building was revealed in print and electronic media, including a Facebook page.

In May 2013, plaintiffs commenced this action seeking injunctive relief and damages pursuant to the statutory tort of invasion of privacy and the common-law tort of intentional infliction of emotional distress. Plaintiffs simultaneously moved for a preliminary injunction and a temporary restraining order. The TRO was granted on consent. Defendant then submitted his opposition to the motion for a preliminary injunction and cross-moved to dismiss the complaint, asserting the theory that because the photographs were art, they were protected by the First Amendment, and their publication, sale, and use could not be restrained.

In August 2013, Supreme Court denied plaintiffs’ motion for a preliminary injunction; instead, it granted defendant’s cross-motion to dismiss the entire complaint. In so doing, the court concluded that the photographs were protected by the First Amendment. The court found that the photographs conveyed defendant’s “thoughts and ideas to the public” and “serve [d] more than just an advertising or trade purpose because they promote the enjoyment of art in the form of a displayed exhibition.” (2013 NY Slip Op 31782[U], *5 [2013].) This Court, however, granted a preliminary appellate injunction pending the outcome of this appeal.

Discussion

As indicated, the denial of the preliminary injunction and the dismissal of the complaint were based on the same ground, namely that the alleged conduct constituting the privacy invasion are not actionable under the statutory tort of invasion of privacy (see Civil Rights Law §§ 50, 51).

New York State’s privacy statute was borne out of judicial prompting from the Court of Appeals in Roberson v Rochester Folding Box Co. (171 NY 538 [1902]). In Roberson, the Court of Appeals declined to establish a common-law right to privacy where a flour company “obtained, made, printed, sold and *155circulated about 25,000 lithographic prints, photographs and likenesses of plaintiff” without the plaintiff’s consent (id. at 542). The “25,000 likenesses of the plaintiff . . . ha[d] been conspicuously posted and displayed in stores, warehouses, saloons and other public places.” (Id.) The plaintiff sought an injunction preventing further use of the photographs as well as damages in the sum of $15,000 (id.). The Supreme Court, affirmed by the Appellate Division (64 App Div 30 [1901]), decided that the plaintiff had a “right . . . to be let alone” (32 Misc 344, 347-348 [1900]) a “so-called right of privacy” (171 NY at 544), which had been invaded by the widespread distribution of her image.

The Court of Appeals, however, reversed, reasoning that the adoption of such a right would result in “a vast amount of litigation [that would] border [ ] upon the absurd,” because the assertions of a right to privacy, according to the court, would be limitless (id. at 545). The Court of Appeals ultimately found that “[t]he legislative body could very well. . . provide that no one should be permitted for his own selfish purpose to use the picture or the name of another for advertising purposes without his consent,” as only the legislature can draw “arbitrary distinctions which no court should promulgate as a part of general jurisprudence” (id. at 545, 555).

Public outcry over the perceived unfairness of Roberson led to a rapid response by the New York State Legislature (see Lerman v Flynt Distrib. Co., Inc., 745 F2d 123, 129 [2d Cir 1984], cert denied 471 US 1054 [1985]). Within a year of Roberson, New York enacted a statutory right to privacy (L 1903, ch 132). The statutorily-created right prohibits the use of a person’s “name, portrait or picture” (Civil Rights Law § 50) or “name, portrait, picture or voice” (Civil Rights Law § 51) for advertising or trade purposes. Section 50 provides for criminal penalties for such prohibited uses, while section 51 gives the individual victim of such appropriation the right to obtain an injunction and bring a cause of action to obtain compensatory and exemplary damages (id.). Two phrases in the New York privacy statute describe the type of unauthorized use that is prohibited. The phrases are: (1) “for advertising purposes” and (2) “for the purposes of trade.”

The legislature’s use of the broad, unqualified terms for advertising and trade purposes, on their face, appear to support plaintiffs’ contention that the statutory terms apply to all items which are bought and sold in commerce. Courts, however, *156have refused to adopt a literal construction of these terms because the advertising and trade limitations of the privacy statute were drafted with the First Amendment in mind. As the Court of Appeals held in Arrington v New York Times Co. (55 NY2d 433, 440 [1982]), the terms trade and advertising concomitantly act as a narrowly-construed categorization crafted by the legislature to strike a balance between the concerns of private individuals and the First Amendment. Accordingly, the Court of Appeals has consistently held that the privacy statute should not be construed to apply to publications regarding newsworthy events and matters of public concern (see Howell v New York Post Co., 81 NY2d 115, 123 [1993]; Finger v Omni Pubis. Intl., 77 NY2d 138, 141-142 [1990]). Thus, the prohibitions of sections 50 and 51 of the privacy statute are not applicable to newsworthy events and matters of public concern because such dissemination or publication is not deemed strictly for the purpose of advertising or trade within the meaning of the privacy statute (see Arrington, 55 NY2d 433, 440 [1982]).

The newsworthy and public concern exemption’s primary focus is to protect the press’s dissemination of ideas that have informational value. However, the exemption has been applied to many others forms of First Amendment speech, protecting literary and artistic expression from the reach of the statutory tort of invasion of privacy (see e.g. University of Notre Dame Du Lac v Twentieth Century-Fox Film Corp., 22 AD2d 452, 456 [1st Dept 1965], affd 15 NY2d 940 [1965] [motion picture and novel]).

Similarly, the exemption has been applied in cases addressing written and nonwritten materials published or televised for the purpose of entertainment (see e.g. Freihofer v Hearst Corp., 65 NY2d 135, 140-141 [1985]; Stephano v News Group Publs., 64 NY2d 174, 184 [1984] [applying the exception to an article of consumer interest regarding events in the fashion industry]; Gautier v Pro-Football, Inc. (304 NY 354 [1952] [dismissing complaint of animal trainer who objected to televised broadcast of act performed during half-time at professional football game]). This is because there is a strong societal interest in facilitating access to information that enables people to discuss and understand contemporary issues (see Time, Inc. v Hill, 385 US 374, 388 [1967], citing Thornhill v Alabama, 310 US 88, 102 [1940]).

Since the newsworthy and public concern exemption has been applied to many types of artistic expressions, including *157literature, movies and theater, it logically follows that it should also be applied equally to other modes of artistic expression. Indeed, works of art also convey ideas. Although the Court of Appeals has not been confronted with the issue of whether works of art fall outside the ambit of the privacy statute, other courts that have addressed the issue have consistently found that they do (see e.g. Altbach v Kulon, 302 AD2d 655 [3d Dept 2003]; Nussenzweig v DiCorcia, 11 Misc 3d 1051 [A], 2006 NY Slip Op 50171[U] [Sup Ct, NY County 2006], affd 38 AD3d 339 [1st Dept 2007], affd 9 NY3d 184 [2007]; Hoepker v Kruger, 200 F Supp 2d 340 [SD NY 2002]; Simeonov v Tiegs, 602 NYS2d 1014 [Civ Ct, NY County 1993]).

For instance, in Altbach v Kulon, the Third Department held that an artist’s publication of a town justice’s photograph, along with a painting of the justice that caricatured him by portraying him as a devil with a horn and a tail, was constitutionally protected as a work of art (302 AD2d at 657-658). In Altbach, the defendant distributed flyers with the caricature and a photo of the justice to promote the opening of his art gallery (id. at 655). Preliminarily, the Court found that the

“similarity of poses between the photograph and the painting, together with the content of the advertising copy identifying plaintiff as an experienced attorney, attest [ed] to the accuracy of [the] defendant’s portrayal of [the] plaintiff’s face and posture, while emphasizing that the painting is a caricature and parody of the public image” (id. at 658).

Nevertheless, the Court found that the photograph’s use can readily be viewed as ancillary to a protected artistic expression because it “prove [s] [the] worth and illustrate [s] [the] content” of the painting exhibited at defendant’s gallery (id.).

Similarly, in Hoepker v Kruger, the federal district court for the Southern District of New York gave First Amendment protection to a collage photograph displayed in the Museum of Contemporary Art, in Los Angeles (200 F Supp 2d 340 [2002]). The defendant Kruger, a collage artist known for her feminist position on issues of beauty, femininity, and power, copied an image, “Charlotte As Seen By Thomas,” created by plaintiff, Thomas Hoepker (id.). She cropped and enlarged the image and superimposed three red blocks containing the words, “It’s a small world but not if you have to clean it” (id. at 342). Kruger’s creation was printed and sold in many forms (e.g., *158postcards and magnets) in the museum’s gift shop. It was also published in a catalog of Kruger’s works (id.). The court held that the creation itself “should be shielded from [the plaintiff’s] right of privacy claim by the First Amendment. [It] is pure First Amendment speech in the form of artistic expression . . . and deserves full protection” (id. at 350).

It is also worth noting Nussenzweig v diCorcia (38 AD3d 339, 341 [1st Dept 2007, Tom, J.P., concurring], affd 9 NY3d 184 [2007]), which involved the same issue presented here— whether a citizen of this state retains the right to preclude the use of his likeness where such likeness is displayed in an artistic form (id.). The defendant, diCorcia, a respected photographer with a history of shows in New York museums, photographed a series called “HEADS,” which involved candid “street photography” of people walking by a Times Square location. The images were exhibited in a gallery for sale (id.). The plaintiff, Nussenzweig, was readily identifiable, and did not consent to diCorcia’s use of the images (id.). Nussenzweig was an Orthodox Jew with deep religious beliefs against the use of his image (id.). The exhibit was open to the public and was advertised. The 10 photos of Nussenzweig sold for $20,000 to $30,000 each (id.).

The majority found it unnecessary to address the constitutional issue and dismissed the privacy tort action as time-barred because more than one year had passed since the first (rather than the last) publication of the photographs (38 AD3d 339).3 However, a concurrence did reach the constitutional issue of whether the defendant’s use of the plaintiff’s photograph was entitled to First Amendment protection (id.). The concurrence opined that “the inclusion of the photograph in a catalog sold in connection with an exhibition of the artist’s work d[id] not render its use commercial” pursuant to the privacy statute because “the public expression of those ideas and concepts [wa]s fully protected by the First Amendment” (id. at 347).

In this case, we are constrained to concur with the views expressed in Altbach, Hoepker, and Nussenzweig’s, concurrence: works of art fall outside the prohibitions of the privacy statute under the newsworthy and public concerns exemption. As indicated, under this exemption, the press is given broad leeway. This is because the informational value of the ideas *159conveyed by the art work is seen as a matter of public interest. We recognize that the public, as a whole, has an equally strong interest in the dissemination of images, aesthetic values and symbols contained in the art work. In our view, artistic expression in the form of art work must therefore be given the same leeway extended to the press under the newsworthy and public concern exemption to the statutory tort of invasion of privacy.

To be sure, despite its breadth, the exception is not without limits. To give absolute protection to all expressive works would be to eliminate the statutory right of privacy. Accordingly, under New York law, the newsworthy and public concern exception does not apply where the newsworthy or public interest aspect of the images at issue is merely incidental to its commercial purpose. For instance, the newsworthy and public concern exemption does not apply where the unauthorized images appear in the media under the guise of news items, solely to promote sales; such advertisement in disguise is commercial use deserving no protection from the privacy statute (see e.g. Beverley v Choices Women’s Med. Ctr., 78 NY2d 745, 751-755 [1991] [nonmedia defendant who produced and distributed a calendar to promote its medical center that included a picture of plaintiff not entitled to protection of newsworthy and public concern exception based on theme of women’s progress where calendar was clearly designed to advertise the medical center]; cf. Stephano v News Group Publs., 64 NY2d 174, 185 [1984] [model for article on men’s fashion not entitled to protection of Civil Rights Law § 51 where photo was also used in column containing information on where to buy new and unusual products]).

Similarly, when a court determines that there is no real relationship between the use of the plaintiff’s name or picture and the article it is used to illustrate, the defendant cannot use the newsworthy and public concern exception as a defense. This is because, by definition, if a person’s image has no real relationship to the work then its only purpose must be for the sale of the work (compare Thompson v Close-Up, Inc., 277 App Div 848 [1st Dept 1950] [publication of photograph did not fall within exceptions to Civil Rights Law §§ 50 or 51 where plaintiffs had no connection to dope peddling, which was the subject of defendant’s article], with Murray v New York Mag. Co., 27 NY2d 406 [1971] [photograph of plaintiff dressed in Irish garb while watching St. Patrick’s Day parade spotlighted a newsworthy event and bore a real relationship to article *160about contemporary attitudes of Irish-Americans in New York City]; and Finger v Omni Publs. Intl., 77 NY2d 138 [1990] [photograph of plaintiffs and their six children bore real relationship to article entitled, “Want a big family?” and fell within the newsworthy exception despite fact that family had no involvement with subject matter of article, caffeine-enhanced in vitro fertilization, where both title and photo involved theme of fertility]).

Applying the newsworthy and public concern exemption to the complaint herein, we conclude that the allegations do not sufficiently plead a cause of action under the statutory tort of invasion of privacy. As detailed above, plaintiffs essentially allege that defendant used their images in local and national media to promote “The Neighbors,” an exhibition that included photographs of individuals taken under the same circumstances as those featuring plaintiffs. Plaintiffs further allege that the photographs were for sale at the exhibit and on a commercial website.

Accepting, as we must, plaintiffs’ allegations as true (Nonnon v City of New York, 9 NY3d 825 [2007]; Leon v Martinez, 84 NY2d 83, 87-88 [1994]), they do not sufficiently allege that defendant used the photographs in question for the purpose of advertising or for the purpose of trade within the meaning of the privacy statute. Defendant’s used of the photos falls within the ambit of constitutionally protected conduct in the form of a work of art. While a plaintiff may be able to raise questions as to whether a particular item should be considered a work of art, no such question is presented here. Indeed, plaintiffs concede on appeal that defendant, a renowned fine arts photographer, assembled the photographs into an exhibit that was shown in a public forum, an art gallery. Since the images themselves constitute the work of art, and art work is protected by the First Amendment, any advertising undertaken in connection with the promotion of the art work was permitted. Thus, under any reasonable view of the allegations, it cannot be inferred that plaintiffs’ images were used “for the purpose of advertising” or “for the purpose of trade” within the meaning of the privacy statute.

Contrary to plaintiffs’ arguments, the fact that profit might have been derived from the sale of the art work does not diminish the constitutional protection afforded by the newsworthy and public concern exemption. Stephano v News Group Publs. (64 NY2d 174 [1984]) illustrates how the newsworthy and pub-*161lic concern exemption precludes right of privacy violations when the publication is distributed for profit. Stephano, a professional model who posed for photos for an article on men’s fashion, claimed that the defendant improperly used his picture for trade or advertising purposes without his consent when it published a picture of him modeling a “bomber jacket” in a magazine column containing information regarding new and unusual products and including the approximate price of the jacket, the name of the designer, and the names of three stores where the jacket might be purchased. The motion court granted summary judgment to the defendant, concluding that the article reported a newsworthy fashion event, and was not published for trade or advertising purposes. In agreeing that the plaintiff did not have a claim under the privacy statute, the Court of Appeals explained that “(i)t is the content of the article and not the defendant’s motive ... to increase circulation which determines whether it is a newsworthy item, as opposed to a trade usage, under the Civil Rights Law” (id. at 185).

Plaintiffs also argue that, merely because the use of a person’s name, portrait, or picture is newsworthy or a matter of public concern, such as a legitimate work of art, it should not be exempt from classification as “advertising” or “trade” if it was obtained in an improper manner. Plaintiffs do not cite any authority directly on point for this proposition, and indeed there does not appear to be any. However, acknowledging that Civil Rights Law §§ 50 and 51 reflect a careful balance of a person’s right to privacy against the public’s right to a free flow of ideas, plaintiffs argue that defendant’s work should not be entitled to First Amendment protection because of the manner or context in which it was formed or made. In essence, plaintiffs seem to be arguing that the manner in which the photographs were obtained constitutes the extreme and outrageous conduct contemplated by the tort of intentional infliction of emotional distress and serves to overcome the First Amendment protection contemplated by Civil Rights Law §§ 50 and 51.

The Court of Appeals has set a high bar for what constitutes outrageous behavior in this context. In Howell (81 NY2d 115 [1993]), the plaintiff was a patient at a private psychiatric facility who alleged that it was critical to her recovery that no one outside of her immediate family know about her commitment. A New York Post photographer trespassed onto the se*162cluded grounds of the facility for purposes of capturing images of Hedda Nussbaum, who had been prominently thrust into the public eye a year earlier when her boyfriend Joel Steinberg murdered her daughter (id. at 118). Using a telephoto lens, the photographer took pictures of Nussbaum, who happened at the time to be strolling the grounds of the facility with the plaintiff (id.). When the pictures were published in the newspaper, the plaintiff claimed, inter alia, that her statutory right to privacy had been violated and that defendants had intentionally inflicted emotional distress on her (id. at 119).

The Court of Appeals held that the newsworthy and public concerns exception applied to bar the privacy claim because the Nussbaum affair was a matter of public interest and the photographs were directly related to the story (id. at 124-125). It rejected the plaintiff’s contention that her presence at the facility was not newsworthy, since it was the fact of Nussbaum’s interaction with the plaintiff that demonstrated Nussbaum’s path to recovery from the physical and emotional abuse she had suffered at the hands of Steinberg (id. at 125). Notably, in dismissing the plaintiff’s claim for intentional infliction of emotional distress as being “an end run around a failed right to privacy claim,” the Court observed that the “defendants acted within their legal right” (id.). The Court further stated:

“Courts have recognized that newsgathering methods may be tortious (see, e.g., Galella v Onassis, 487 F2d 986, 995 [2d Cir (1973)]) and, to the extent that a journalist engages in such atrocious, indecent and utterly despicable conduct as to meet the rigorous requirements of an intentional infliction of emotional distress claim, recovery may be available. The conduct alleged here, however — a trespass onto Four Winds’ grounds — does not remotely approach the required standard. That plaintiff was photographed outdoors and from a distance diminishes her claim even further” (81 NY2d at 126 [emphasis added]).

The quoted language did not directly apply to the privacy claim in Howell. However, it strongly suggests that expression will not lose entitlement to the newsworthy and public concerns exemption of Civil Rights Law §§ 50 and 51 unless the means by which a person’s privacy was invaded was truly outrageous. Indeed, while one can argue that defendant’s actions were more *163offensive than those of the defendant in Howell, because the intrusion here was into plaintiffs’ home, clearly an even more private space, they certainly do not rise to the level of “atrocious, indecent and utterly despicable” (id.). Further, the depiction of children, by itself, does not create special circumstances which should make a privacy claim more readily available (see Finger, 77 NY2d at 138). We note that defendant’s conduct here, while clearly invasive, does not implicate the type of criminal conduct covered by Penal Law § 250.40 et seq., prohibiting unlawful surveillance.

In short, by publishing plaintiffs’ photos as a work of art without further action toward plaintiffs, defendant’s conduct, however disturbing it may be, cannot properly, under the current state of the law, be deemed so “outrageous” that it went beyond decency and the protections of Civil Rights Law §§ 50 and 51. To be sure, by our holding here — finding no viable cause of action for violation of the statutory right to privacy under these facts — we do not, in any way, mean to give short shrift to plaintiffs’ concerns. Undoubtedly, like plaintiffs, many people would be rightfully offended by the intrusive manner in which the photographs were taken in this case. However, such complaints are best addressed to the legislature — the body empowered to remedy such inequities (see Black v Allstate Ins. Co., 274 AD2d 346 [1st Dept 2000]; Yankelevitz v Royal Globe Ins. Co., 88 AD2d 934 [2d Dept 1982], affd 59 NY2d 928 [1983]). Needless to say, as illustrated by the troubling facts here, in these times of heightened threats to privacy posed by new and ever more invasive technologies, we call upon the legislature to revisit this important issue, as we are constrained to apply the law as it exists.

Accordingly, the order of the Supreme Court, New York County (Eileen Rakower, J.), entered August 5, 2013, which denied plaintiffs’ motion for a preliminary injunction, and granted defendant’s cross motion to dismiss the complaint, should be affirmed, without costs.

Mazzarelli, J.R, Andrias, Richter and Feinman, JJ., concur.

Order, Supreme Court, New York County, entered August 5, 2013, affirmed, without costs.

Irvine, O.

The relator alleges that it purchased of one Beruh Liebisch certain philosophical treatises for the use of the University of Nebraska, to the value and at the agreed price of $22.06; that on June 26, 1895, the board of regents *374.having audited the account, found the same correct and issued its certificate, signed by its president and secretary, to the effect that Liebisch was entitled to payment of that amount from the appropriation of 1895, account current expenses, and directing the respondent to draw his warrant therefor on the university fund; that thereafter the board •caused said certificate to be presented on behalf of Liebisch to the respondent, Liebisch being a resident of Germany; that the respondent refused to draw a warrant for the reason that the account was not verified and vouchered as provided by Session Laws of 1895, chapter 65. It is further averred that there was in the treasury of the state to the credit of the temporary university fund at that time the sum of $9,872.50. The relator prays for a writ of mandamus commanding the respondent to issue a warrant to Liebisch in accordance with the certificate. To this petition the auditor demurs. Session Laws of 1895, chapter 65, is entitled “An act to provide for a uniform system of vouchers for use for all disbursements of the state’s funds, through the auditing and treasury departments of the state, and to provide for the affixing of an oath or affirmation thereto by the claimant, and to provide a penalty for the violation thereof.” The act in its first section provides that within thirty days after its passage and approval the auditor shall prepare blank forms of vouchers for use in all the state’s departments and for use of “all manner of claimants against the state who receive their pay by warrant drawn by the auditor upon the state treasurer.” •Other provisions of the section relate to the issuance of such vouchers in original, duplicate, and triplicate forms, as necessities of the especial institutions may require. Section 2 provides: “All claims against the state to be paid as •hereinbefore provided shall be extended in full on the voucher and fully and carefully itemized, and accompanied in all instances, where possible, with the original bill or item of expense. Said bills or items, and each of them, *375shall give the exact date of purchase or service rendered, quantity purchased, name of article or service, price per item, and total, and shall be properly signed by the party to whom the claim is payable, or his or its agent or attorney, or a member of the firm, and shall be signed in full by the name of the claimant,” etc. Section 3 provides that with the original voucher there shall be an affidavit in form prescribed by the section. The remaining sections of the act are not material to the present inquiry. If this act is applicable to such claims as that now presented, neither the relator nor the claimant has shown a compliance therewith, and the writ must be denied. The question presented is, therefore, whether the act referred to applies to claims against the university. ^

The university derives its revenue in part from a state tax and in part from the proceeds of two grants of land by the federal government.. One of these grants was by the act of congress of July 2, 1862, commonly known as the “ Morrill Act.” The other was contained in the enabling act of April 19, 1864, section 10 of which granted seventy-two sections of land for the use and support of a state university,’to be appropriated and applied as the legislature might prescribe for the purpose named, and for no other purpose. The first state constitution contained no provision relating to either of these grants, except in sections 1 and 2 of article 7, providing that the principal of all funds arising from the sale of land granted to the state for educational purposes shall forever be preserved inviolate and undiminished; and the income arising therefrom shall be faithfully applied to the specific objects of the original grants or appropriations, and that the university lands and other educational lands shall not be sold at less than $5 an acre. The present constitution contains in different sections substantially similar provisions, but the minimum price of sale is changed; and it is provided that the general government of the university shall, under direction of the legisla*376ture, be vested in a board of regents, whose duties and powers shall be prescribed by law. (Constitution, art. 8, sec. 10.) There was no legislation to create the university or to give effect to these grants until 1869, when a comprehensive act was passed. (Session Laws, 1869, p. 172.) Under this act the university was created, and its general government vested in a board of regents, who are constituted a body coporate, and empowered as such to sue and be sued, to make and use a common seal, to acquire real and personal property for the use of the university and to dispose of the same whenever the university can be advantaged thereby. The only limitation to the power of the board in this respect was that they should not dispose of grounds upon which any building of the university should be located without the consent of the legislature. By this act as subsequently amended the funds of the university were declared to be two — the endowment fund and the regents’ fund. The endowment fund consisted of the proceeds of the sales of lands and funds acquired by donation or bequest. The regents’ fund consisted of the proceeds of investment of the endowment fund, of the rental of lands leased, tuition and text-book fees, and the state tax. In other words, the endowment fund was the principal and the regents’ fund the income available for use. By act of March 2,1870, the state treasurer was made the custodian of the endowment fund and he was required to pay over monthly to the treasury of the university all moneys accruing to the regents’ fund. The treasurer of the university was authorized to pay moneys out of this fund on warrants drawn upon the secretary and countersigned by the president of the board of regents. In 1875 an act was passed (Session Laws, 1875, p. 154), entitled “An act providing for the more efficient government of the state university and for the disposition of funds belonging thereto.” By this act the office of treasurer of the university was abolished and the state treasurer “ made custodian of the *377funds,” the treasurer of the university being directed within sixty days to turn over to him all moneys, securities, books, and papers pertaining to his office. This act also provided that disbursements from the university fund should be made by the state treasurer upon warrants drawn by the auditor, who should issue warrants upon certificates issued by the board of regents, signed by the secretary and president. It also provided that all money accruing to the university was thereby appropriated to the use of the university. So the legislation stood until the act of 1895 was passed. In 1877 the effect of this legislation was drawn in question in the case of the Regents v. McConnell, 5 Neb., 423. This was an action by the regents to recover from McConnell certain moneys belonging to the regents’ fund which had come into his hands as treasurer of the university and which he refused to turn over to the state treasurer as required by the act of 1875. The court reviewed the legislation down to that time and declared that the board of regents of the university was nota private eleemosynary corporation, because its whole interest and franchises are the exclusive property and domain of the government itself; that it was a public corporation, and but a part of the machinery employed in carrying on the affairs of state; that upon such corporation the legislature had power to impose such modifications, extensions, or restraints as the general interest and public exigencies may require; that the rights of such corporation never become vested as against the state; that the effect of the act of 1875 was to take from the treasurer of the university the control of the regents’ fund and make the state treasurer its custodian, “to be disbursed by,him upon warrants drawn by the state auditor in the same manner as funds appropriated for the support of other state institutions not incorporated are disbursed.” The court further said that by virtue of the act of 1875 “the custody and control of these funds are taken from the corporation and placed in the custody of the state treasurer for disbursement; and under the settled doctrine *378of the law, in respect to public corporations of this kind, the legislature had the undoubted authority to take these funds from the custody of the corporation and divest it of any corporate power over them, and having done so, we .think it clear that the regents, as such corporation, have no authority in law to bring or maintain this action.” Here then, two years after the passage of the act of 1875, and eighteen years ago, the court construed it as taking from the board of regents the control of the regents’ fund and vesting it in the state treasurer, to be disbursed in the same manner as funds of other state institutions, and the logic of the decision reduced the university very much to the same position as other state institutions, although its distinct corporate character was affirmed. In State v. Liedtke, 9 Neb., 468, the court said: “Upon careful examination of the several acts of the legislature and constitutional provissions applicable to this question, we are forced to the conclusion that it was the intention of the legislature, which passed the act of February 23, 1875 (Session Laws, 1875, p. 154), that all moneys belonging to the university fund then in the hands of the treasurer of the board of regents should not only be paid over to the state treasurer, but , should thereupon be covered into the state treasury, and that thereafter all like funds, upon reaching the hands of the state treasurer, would by force of law be covered into the state treasury.” The court therefore held that the state treasurer acted in receiving and paying out the revenues of the university in his capacity as state treasurer, and not as treasurer of the university, and that no funds could be drawn except in pursuance of a specific appropriation. The doctrine of these two cases was reaffirmed in State v. Babcock, 17 Neb., 610,. Chief Justice Cobb dissenting, but unfortunately not writing an opinion to support his dissent; and the same line of reasoning controlled the decision in State v. Moore, 36 Neb., 579.

It is argued that the act of 1895 does not in terms apply *379to claims against the university; that it relates only to claims against the state; that the university, being a body corporate, capable of being sued, its debts are to be enforced by suit and judgment against the corporation; that the state is not liable therefor, and its'creditors are not claimants against the state; and further, that the act of 1895, if construed to apply to claims against the university, would be unconstitutional, as abridging and restricting the constitutional powers of the board of regents. We. think the argument addressed to the construction of the act cannot be maintained without disregarding the decisions we have cited. For eighteen years it has been held that the university is merely a state institution and its board of regents a state agent; that the funds of the university were by the act of 1875 not merely entrusted to the state treasurer as custodian for the university, but were covered into the treasury and became a part of the state’s funds entrusted to him in his official capacity as state treasurer; that for the withdrawal of such funds specific appropriations are necessary, as in the case of other state institutions. Hence the logical conclusion that the constitutional provisions and legislative enactments in regard to drawing of warrants by the auditor must apply. The legislature in passing the act of 1895 must be presumed to have had in contemplation these decisions, and the construction so given by this court to the legislation affecting the university, and, therefore, in using the term “claims against the state” it was not the legislative intent to except from the operation of the act claims against the university. So far as the constitutional question is concerned, it will be observed that while the constitution vests the general government of the university in the board of regents, this government is to be “under direction of the legislature,” and the powers and duties of the board are merely such as “shall be prescribed bylaw;” that is, by the legislature. The decisions already cited necessarily imply such a construction of this provision as *380permits to the legislature the greatest latitude in extending or restricting these duties and powers. In Regents v. McConnell, supra, it was clearly the view of the court that the vesting of the general government of the university in the board of regents did not prevent the legislature from depriving the board of the control of the university funds. The act of 1895 is complete in itself, relating generally to the forms and requisites of vouchers, and must be held to have operated an implied repeal of that part of the act of 1875 which required warrants to be issued on the certificate of the board of regents. Claims against the university must be presented to the auditor upon vouchers drawn in conformity with the act of 1895.

The foregoing has been written merely from the standpoint of authority. We do not feel that decisions which have so long controlled the operations of the board of regents, of state officers, and of the legislature itself, in matters affecting the university, should be overruled if such a course can be avoided, and this case cannot be otherwise resolved without overruling those decisions; but we feel that we would be placing ourselves in a false attitude did we not before leaving this subject express our opinion to the effect that our minds do not assent to the reasoning of the line of decisions referred to. Were the question a new one, we would take an entirely different view, both of the validity and the construction of the act of 1875.

W-RIT DENIED.

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. INTRODUCTION

Renee M. Smith, a pro se litigant, appeals from the district court’s order of May 21, 1997, dismissing her complaint for failure to state a claim, and from the district court’s order of June 5,1997, denying her motion for leave to amend her complaint. Smith’s complaint alleges violations of section 1 of the Sherman Act, 15 U.S.C. § 1, and Title IX of the Educational Amendments of 1972, 20 U.S.C. § 1681, as well as a state law breach of contract claim against the National Collegiate Athletic Association (“NCAA”). Smith’s allegations arise from the NCAA’s promulgation and enforcement of a bylaw prohibiting a student-athlete from participating in intercollegiate athletics while enrolled in a graduate program at an institution other than the student-athlete’s undergraduate institution.

The district court had jurisdiction over the federal' claims in this matter pursuant to 28 U.S.C. §§ 1331 and 1337 and 15 *183U.S.C. § 15, and over the state law claim pursuant to 28 U.S.C. § 1367. This court has jurisdiction to review the final orders of the district court pursuant to 28 U.S.C. § 1291.1 We exercise plenary review over the district court’s dismissal of Smith’s complaint for failure to state a claim. See Lake v. Arnold, 112 F.3d 682, 684 (3d Cir.1997). We accept all of her allegations as true, view them in the light most favorable to her, and will affirm the dismissal only if she can prove no set of facts entitling her to relief. See Nami v. Fauver, 82 F.3d 63, 65 (3d Cir.1996); ALA, Inc. v. CCAIR, Inc., 29 F.3d 855, 859 (3d Cir.1994). We review the district court’s denial of her motion for leave to amend her complaint for abuse of discretion. See In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir.1997).

II. FACTS AND PROCEDURAL HISTORY

Smith graduated from high school in the spring of 1991 and enrolled in St. Bonaventure University the following fall, where she participated in Division I athletics. Smith played intercollegiate volleyball for St. Bonaventure during the 1991-92 and 1992-93 athletic seasons. By her choice, Smith did not participate in intercollegiate volleyball for St. Bonaventure during the 1993-94 season.

Smith graduated from St. Bonaventure in two and one half years. Thereafter, she enrolled in a postbaeealaureate program at Hofstra University, and then in 1995 she enrolled in a second postbaeealaureate program at the University of Pittsburgh. St. Bonaventure did not offer either of these postbaeealaureate programs.

The NCAA is an unincorporated association comprised of public and private colleges and universities and is responsible for promulgating rules governing all aspects of intercollegiate athletics, including recruiting, eligibility of student-athletes, and academic standards. The member institutions agree to abide by and enforce these rules. The NCAA denied Smith eligibility to compete for Hofstra and the University of Pittsburgh in the 1994-95 and 1995-96 athletic seasons, respectively, based upon Bylaw 14.1.8.2 in the NCAA Manual (the “Postbaeealaureate Bylaw”). The Postbaeealaureate Bylaw pro-' vides that a student-athlete may not participate in intercollegiate athletics at a postgraduate institution other than the institution from which the student earned her undergraduate degree.2 Both Hofstra and the University of Pittsburgh applied to the NCAA for a waiver of the bylaw with respect to Smith, but the NCAA denied both re*184quests. Smith was, however, in good academic standing and in compliance with all other NCAA eligibility requirements for the 1994-95 and 1995r-96 athletic seasons.

In August 1996, Smith instituted this suit' challenging the NCAA’s enforcement of the bylaw as well as the NCAA’s refusal to waive the bylaw in her case. More particularly, Smith alleged that the Postbaccalaureate Bylaw is an unreasonable restraint of trade in violation of section 1 of the Sherman Act and the NCAA’s refusal to waive the bylaw excluded her from intercollegiate competition based upon her sex in violation of Title IX. Smith also asserted a state law breach of contract claim based upon the NCAA’s denial of eligibility. On May 21, 1997, the district court dismissed Smith’s federal claims for failure to state a claim upon which relief could be granted. The court held that the NCAA’s refusal to waive the bylaw was not the type of action to which the Sherman Act applied. It also held that Smith’s complaint did not allege adequately that the NCAA was a recipient of federal' funding so as to be subject" to Title IX. By the same order, the district court exercised its discretion to dismiss Smith’s state law contract claim pursuant to 28 U.S.C. § 1367(c). See Smith v. National Collegiate Athletic Ass’n, 978 F.Supp. 213 (W.D.Pa.1997).

Thereafter, Smith submitted a proposed amended complaint and moved the district court for leave to amend her complaint, which the district court denied “as moot” on June 5, 1997. Smith filed timely appeals from these orders, which we have consolidated.

III. DISCUSSION

A. SHERMAN ACT CLAIM

Count I of Smith’s complaint alleges that the NCAA, in promulgating and enforcing the Postbaccalaureate Bylaw, violated section 1 of the Sherman Act because the bylaw unreasonably restrains trade and has an adverse anticompetitive effect. As we have indicated, the district court dismissed this claim for failure to state a claim upon which relief could be granted, holding that “the actions of the NCAA in refusing to waive the Postbaecalaureate Bylaw and allow the Plaintiff to participate in intercollegiate athletics is not the type of action to which the Sherman Act was meant to be applied.” See Srmth, 978 F.Supp. at 218'. Smith argues that the district court erred in limiting the application of the Sherman Act to the NCAA’s commercial and business activities. We disagree.

Section 1 of the Sherman Act provides, in relevant part, that “[ejvery 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.” 15 U.S.C. § 1. Although the section literally prohibits “every” contract, section 1 does not preclude all restraints on trade, but only those that are unreasonable. See National Collegiate Athletic Ass’n v. Board of Regents of the Univ. of Okla., 468 U.S. 85, 98 & n.17, 104 S.Ct. 2948, 2959 & n. 17, 82 L.Ed.2d 70 (1984); Arizona v. Maricopa County Med. Soc’y, 457 U.S. 332, 342-44, 102 S.Ct. 2466, 2472-73, 73 L.Ed.2d 48 (1982). The Clayton Act, 15 U.S.C. §§ 15, 26, grants a private right of action to, inter alia, a person “injured in his business or property” by a violation of section 1 of the Sherman Act.3

Smith misconstrues the law in arguing that the Supreme Court has refused to limit antitrust remedies to commercial interests. The cases she cites address whether the plaintiffs alleged injuries within the meaning of the Clayton Act; in that context, the Court held that the statute was not limited to redressing injuries to commercial interests. See Reiter v. Sonotone Corp., 442 U.S. 330, 338-39, 99 S.Ct. 2326, 2330-31, 60 L.Ed.2d 931 (1979) (holding that “injury to business or property” was not limited to commercial interests); Blue Shield of Va. v. McCready, 457 U.S. *185465, 473, 102 S.Ct. 2540, 2545, 73 L.Ed.2d 149 (1982) (holding that a subscriber to a health plan who had employed the services of a psychologist alleged a redressable antitrust injury); see also McNulty v. Borden, Inc., 474 F.Supp. 1111, 1115-18 (E.D.Pa.1979) (holding that an employee of an alleged antitrust violator was injured in his business or property). The question which we now face is different; it is whether antitrust laws apply only to the alleged infringer’s commercial activities. Thus, rather than focus on Smith’s alleged injuries, we consider the character of the NCAA’s activities.

In this regard, we recognize that the Supreme Court has suggested that antitrust laws are limited in their application to commercial and business endeavors. Thus, the Court has explained that

[the Sherman Act] was enacted in the era of ‘trusts’ and of ‘combinations’ of businesses and of capital organized and directed to control of the market by suppression of competition in the marketing of goods and services, the monopolistic tendency of which had become a matter of public concern. The end sought (by these laws) was the prevention of the restraints to the competition in business and commercial transactions which tended to restrict production, raise prices or otherwise control the market to the detriment of purchasers or consumers of goods and services, all of which had come to be regarded as a special form of public injury.

Apex Hosiery Co. v. Leader, 310 U.S. 469, 492-93, 60 S.Ct. 982, 992, 84 L.Ed. 1311 (1940). The Court also has noted that “in Apex [it] recognized that the Act is aimed primarily at combinations having commercial objectives and is applied only to a very limited extent to organizations ... which normally have other objectives.” Klor’s, Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207, 213 n. 7, 79 S.Ct. 705, 710 n. 7, 3 L.Ed.2d 741 (1959).

The Supreme Court addressed the applicability of the Sherman Act to the NCAA in National Collegiate Athletic Ass’n v. Board of Regents, 468 U.S. 85, 104 S.Ct. 2948, 82 L.Ed.2d 70, holding that the NCAA’s plan to restrict television coverage of intercollegiate football games violated section 1. The Court discussed the procompetitive nature of the NCAA’s activities such as establishing eligibility requirements as opposed to the anti-competitive nature of the television plan. See id. at 117, 104 S.Ct. at 2969. Yet, while the Court distinguished the NCAA’s television plan from its rule making, it did not comment directly on whether the Sherman Act would apply to the latter.

Although insofar as we are aware no court of appeals expressly has addressed the issue of whether' antitrust laws apply to the NCAA’s promulgation of eligibility rules, cf. McCormack v. National Collegiate Athletic Ass’n, 845 F.2d 1338, 1343 (5th Cir.1988) (assuming without deciding that the NCAA’s eligibility rules were subject to antitrust scrutiny and holding that the “no-draft” and “no-agent” rules do not have an anticorhpeti-tive effect), many district courts have held that the Sherman Act does not apply to the NCAA’s promulgation and enforcement of eligibility requirements. See Gaines v. National Collegiate Athletic Ass’n,. 746 F.Supp. 738, 744-46 (M.D.Tenn.1990) (holding that antitrust law cannot be used to invalidate NCAA eligibility rules, but noting in dicta that the “no-agent” and “no-draft” rules have primarily procompetitive effects); Jones v. National Collegiate Athletic Ass’n, 392 F.Supp. 295, 303 (D.Mass.1975) (holding that antitrust law does not apply to NCAA eligibility rules); College Athletic Placement Service, Inc. v. National Collegiate Athletic Ass’n, 1975-1 Trade Cas. (CCH) ¶ 60,117, available in 1974 WL 998, *2, *3 (D.N.J.1974) (holding that the NCAA’s adoption of a rule furthering its noncommercial objectives, such as preserving the educational standards of its members, is not within the purview of antitrust law), aff'd, 506 F.2d 1050 (3d Cir.1974) (table).

We agree with these courts that the eligibility rules are not related to the NCAA’s commercial or business activities. Rather than intending to provide the NCAA with a commercial advantage, the eligibility rules primarily seek to ensure fair competition in intercollegiate athletics. Based upon the Supreme Court’s recognition that the Sherman Act primarily was intended to prevent unrea*186sonable restraints in “business and commercial transactions,” Apex, 310 U.S. at 493, 60 S.Ct. at 992, and therefore has only limited applicability to organizations which have principally noncommercial objectives, see Klor’s, Inc., 359 U.S. at 214 n. 7, 79 S.Ct. at 710 n. 7, we find that the Sherman Act does not apply to the NCAA’s promulgation of eligibility requirements.4

Moreover, even if the NCAA’s actions in establishing eligibility requirements were subject to the Sherman Act, we would affirm the district court’s dismissal of this claim. The NCAA’s eligibility requirements are not “plainly anticompetitive,” National Soc. of Professional Engineers v. United States, 435 U.S. 679, 692, 98 S.Ct. 1355; 1365, 55 L.Ed.2d 637 (1978), and therefore are not per se unreasonable, see National Collegiate Athletic Ass'n v. Board of Regents, 468 U.S. at 101, 104 S.Ct. at 2960 (refusing to apply per se rule to NCAA’s television plan because the NCAA is involved in an industry where horizontal restraints are necessary to the availability of the product); McCormack, 845 F.2d at 1343-44; College Athletic Placement Service, 1975-1 Trade Cas. (CCH) ¶ 60,117, available in 1974 WL 998, *3. Consequently, if the eligibility requirements were subject to the Sherman Act, we would analyze them under the rule of reason.

Under the “rule of reason” test, a court considers all relevant factors in determining a defendant’s purpose in implementing the challenged restraint and the effect of the restraint on competition, see Orson, Inc. v. Miramax Film Corp., 79 F.3d 1358, 1367-68 (3d Cir.1996) (citing Board of Trade of Chicago v. United States, 246 U.S. 231, 238, 38 S.Ct. 242, 243-44, 62 L.Ed. 683 (1918)), and asks essentially whether the challenged rule promotes or hinders competition. See McCormack, 845 F.2d at 1344.

As noted above, the Supreme Court has recognized the proeompetitive nature of many of the NCAA’s restraints, including eligibility requirements. See National Collegiate Athletic Ass’n v. Board of Regents, 468 U.S. at 117, 104 S.Ct. at 2969. According to the Supreme Court,

[wjhat the NCAA and its member institutions market in this case is competition itself — contests between competing institutions. Of course, this would be completely ineffective if there were no rules on which the competitors agreed to create and define the competition to be marketed. A myriad of rules ... must be agreed upon, and all restrain the manner in which institutions compete.... Thus, the NCAA plays a vital role in enabling [intercollegiate sports] to preserve its character, and as a result enables a product to be marketed which might otherwise be unavailable. In performing this role, its actions widen consumer choice ... and hence can be viewed as proeompetitive.

Id. at 101-02, 104 S.Ct. at 2960-61 (footnote omitted). In particular, the Court explained that “[i]t is reasonable to assume that most of the regulatory controls of the NCAA are justifiable means of fostering competition among amateur athletic teams and therefore proeompetitive because they enhance public interest in intercollegiate athletics” and suggested that rules establishing eligibility requirements of student-athletes were such controls, while rules limiting television broadcasts were not. See id. at 117, 104 S.Ct. at 2969.

*187While the parties have not cited any opinion addressing the particular bylaw at issue here, and we have found none, other courts have held that the NCAA’s “no-draft” and “no-agent” rules, which disqualify a-student-athlete from further intercollegiate competition if the student-athlete enters a professional draft or contacts an agent, are reasonable because they are procompetitive. See McCormack, 845 F.2d at 1343; Banks v. National Collegiate Athletic Ass’n, 977 F.2d 1081, 1087-94 (7th Cir.1992) (holding that NCAA’s “no-draft” and “no-agent” rules do not have an anticompetitive impact on a discernable market); Gaines, 746 F.Supp. at 746; Jones, 392 F.Supp. at 304 (noting in dicta that “any limitation on access to intercollegiate sports is merely the incidental result of the organization’s pursuit of its legitimate goals”); see also Justice v. National Collegiate Athletic Ass’n, 577 F.Supp. 356, 379 (D.Ariz.1983) (holding that NCAA sanctions such as rendering a college team ineligible for post-season play and for television appearances imposed for violations of rule against providing compensation to student-athletes did not violate antitrust law because sanctions were reasonably related to the NCAA’s goals of preserving amateurism and promoting fair competition).

We agree with these courts that, in general, the NCAA’s eligibility rules allow for the survival of the product, amateur sports, and allow for an even playing field. See McCor-mack, 845 F.2d at 1345. Likewise, the bylaw at issue here is a reasonable restraint which furthers the NCAA’s goal of fair competition and the survival of intercollegiate athletics and is thus procompetitive. Clearly, the rule discourages institutions with graduate or professional schools from inducing undergraduates at other institutions to forgo participating in the athletic programs at their undergraduate institutions in order to preserve eligibility to participate in intercollegiate athletics on a postbaccalaureate basis. Likewise, the rule discourages undergraduates from forgoing participation in athletic programs on their own initiative to preserve eligibility on a postbaccalaureate basis at another institution. Indeed, we think that the bylaw so clearly survives a rule of reason analysis that we do not hesitate upholding it by affirming an order granting a motion to dismiss Smith’s antitrust count for failure to state a claim on which relief can be granted.

B. TITLE IX CLAIM

Title IX provides that “[n]o person in the United States shall, on the basis of sex, be excluded from participating in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a). Intercollegiate athletics is an educational program or activity within the statute. See 20 U.S.C. § 1687; 34 C.F.R. § 106.41(a).5 Thus, the NCAA is subject to Title IX provided that it receives federal financial assistance within the meaning of section 1681(a).

Federal regulations define “recipient” as including

any public or private agency, institution or organization, or other entity, or any other person, to whom Federal financial assistance is extended directly or through another recipient and which operates an edu-cationál program or activity which receives or benefits from such assistance, including any subunit, successor, assignee or transferee thereof.

34 C.F.R. § 106.2(h) (1997) (emphasis added). The plain language of the statute and regulation is quite broad and encompasses indirect recipients of federal funds. See Grove City College v. Bell, 465 U.S. 555, 564, *188104. S.Ct. 1211, 1216, 79 L.Ed.2d 516 (1984) (holding that a college received federal funds where the funds were granted to its students as financial aid rather than directly to the college because the language of the section does not distinguish between direct and indirect receipt of federal funds).

The Court of Appeals for the Sixth Circuit addressed the applicability of Title IX to a state high school athletic association in Horner v. Kentucky High Sch. Athletic Ass’n, 43 F.3d 265 (6th Cir.1994). In Homer, the plaintiffs, female student-athletes, alleged that the association received dues from its member high schools, many of which receive federal funds, and that a state statute authorized the designation of the association as an agent of the state board of education. See Ky.Rev.Stat. Ann. § 156.070(1), (2). In that capacity, thé association performed the board’s statutory duties with respect to interscholastic sports. The plaintiffs alleged that the association violated Title IX by sanctioning fewer sports for girls than boys and by refusing to sanction a particular sport for girls. The court held that the association would be subject to Title IX if the plaintiff could prove her allegations with respect to its functioning and financing. See id.

. The district court attempted to distinguish Homer by noting that “even if the [NCAA] receives dues from member schools which receive federal funds, unlike the situation in Horner, there is no statutory connection between the parties such that the Defendant can be considered the ‘agent’ of its member institutions that receive federal financial assistance.” See Smith, 978 F.Supp. at 220. Thus, according to the district court, the distinguishing characteristic here is the lack of statutory authority for the NCAA. We disagree. The NCAA acts no less than the association in Homer as an agent of its member institutions merely because it lacks statutory authority for its activities. The NCAA is a voluntary organization created by and comprised of the educational institutions which essentially acts as their surrogate with respect to athletic rules.

In its construction of section 504 of the Rehabilitation Act, which contains language identical to that of Title IX in 20 U.S.C. § 1681(a) regarding receipt of federal assistance,6 the Supreme Court has indicated that Congress, as in Title IX, did not distinguish between direct and indirect financial assistance. See United States Dep’t of Transp. v. Paralyzed Veterans of America, 477 U.S. 597, 606-07, 106 S.Ct. 2705, 2711-12, 91 L.Ed.2d 494 (1986) (citing Grove City College, 465 U.S. at 564, 104 S.Ct. at 1216 (holding that a college received federal funds where the funds were granted to its students as financial aid rather than directly to the college)). The Court, however, drew a distinction between those entities which indirectly benefit from federal assistance and those that indirectly receive federal assistance, holding that only those the receive federal funds are within the statute. Thus, the Court rejected the argument that all commercial airlines are “recipients” of federal funds simply because airport operators receive federal funds which benefit the airlines in the form of runways, inter alia. See id. at 606, 106 S.Ct. at 2711. The Court defined “recipient” from a contractual perspective, limiting “recipients” of federal funds, and therefore the obligations of the act, to those who are in a position to decide whether to “receive” federal funds and thereby accept the concomitant obligations of the statute. See id. 7

*189■Notwithstanding the parallel language of the Rehabilitation Act and Title IX, we do not apply the Paralyzed Veterans Court’s definition of “recipient” to Title' IX in the circumstances here. In our view, the broad regulatory language under Title IX, which defines a recipient as an entity “which operates an educational program or activity which receives or benefits” from federal funds, 34 C.F.R. § 106.2(h) (1997) (emphasis added), requires that we reach a different result. Application of Paralyzed Veterans here would render the regulatory definition of “recipient” under Title IX a nullity. After all, unlike the commercial airlines in Paralyzed Veterans, the NCAA is not merely an incidental beneficiary of federal funds. Quite to the contrary, it seems to us that the relationship between the members of the NCAA and the organization itself is qualitatively different than that between airlines and airport operators, for we think ■ that it would be unreasonable to characterize the latter as surrogates for the airlines. Given the breadth of the language of the Title IX regulation defining recipient, we hold that allegations in Smith’s proposed amended complaint, that the NCAA receives dues from its members which receive federal funds,' if proven, would subject the NCAA to the requirements of Title IX.

The district court found that Smith’s original complaint did not allege that the NCAA was a recipient of federal funds, and therefore dismissed the Title IX claim. See Smith 978 F.Supp. at 219. Smith’s complaint included the following allegation: ,

This action is a request for declaratory relief challenging sex discriminatory practices and policies of the NCAA,- Hofstra University, and the University of Pittsburgh in violation of Title IX of the Educational Amendments of 1972, 20 U.S.C. § 1681. Title IX prohibits sex discrimination in an educational program or activity receiving federal financial assistance.

Compl. ¶ 25. We agree that Smith’s original complaint did not contain an allegation that the NCAA receives federal financial assistance. Thus, the district court properly dismissed'her original Title IX complaint.8

But we have not confined our analysis to Smith’s original complaint for, as we have indicated, following the district court’s dismissal of her claims, Smith moved for leave to amend her complaint pursuant to Fed: R.Civ.P. 15. By order dated June 5, 1997, the district court denied this motion, stating only that the motion “is denied as moot, the court having granted defendant’s motion to dismiss on May 20, 1997.” App. at 117. Because the district court gave no further explanation, it is unclear whether the district court was unaware of its discretion to allow the proposed amended complaint despite the dismissal or whether the court believed that the amendment would be futile even if pleaded. Nevertheless, under either view, the district court erred in denying Smith’s motion for leave to amend.

Pursuant to Fed.R.Civ.P. 15(a), a plaintiff has an absolute right to amend her complaint once at any time before a responsive pleading is served. Thereafter, a plaintiff must seek leave of the district court to amend her pleading, and although it is within the district court’s discretion, district courts should grant such requests freely when justice so requires. Id. ■

After the district court enters judgment on a motion to dismiss, a plaintiff no longer may amend her complaint as of right. See' Newark Branch, NAACP v. Town of Harrison, 907 F.2d 1408, 1417 (3d Cir.1990); Kauffman v. Moss, 420 F.2d 1270, 1276 (3d Cir.1970). However, even though Smith no longer was entitled to amend her complaint as of right after the dismissal of her claim, it was within the district court’s discretion to grant her leave to amend. See Newark Branch, NAACP, 907 F.2d at 1417; Kauffman, 420 F.2d at 1276; In re Sverica Acquisition Corp., 179 B.R. 457, 459 (Bkrtcy.E.D.Pa.1995); Fearon v. Community Fed.Sav. & Loan of Phila., 119 F.R.D. 13, 15 (E.D.Pa.1988) (plaintiff had no right to *190amend where both complaint and action dismissed, but could seek leave of court to do so). Thus, her motion to amend was not moot in the sense of being too late or being foreclosed by the dismissal.

While “the grant or denial of an opportunity to amend is within the discretion of the District Court ... outright refusal to grant the leave without any justifying reason appearing for the denial is not an exercise of that discretion; it is merely an abuse of that discretion and inconsistent with the spirit of the Federal Rules.” Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962). On the other hand, a district court justifiably may deny leave to amend on grounds such as undue delay, bad faith, dilatory motive, and prejudice, as well as on the ground that an amendment would be futile. See id; In re Burlington Coat Factory Sec. Litig., 114 F.3d at 1434; Massarsky v. General Motors Corp., 706 F.2d 111, 125 (3d Cir.1983). An amendment is futile if the complaint, as amended, would not survive a motion to dismiss for failure to state a claim upon which relief could be granted. See In re Burlington Coat Factory, 114 F.3d at 1434 (citing Glassman v. Computervision Corp., 90 F.3d 617, 623 (1st Cir.1996)). In determining whether the amendment would be futile, the district court applies the same standard of legal sufficiency as under Fed.R.Civ.P. 12(b)(6). See id.

Smith alleged facts in her proposed amended complaint which, if proven, would establish that the NCAA was a recipient of federal funds within the meaning of Title IX. Her motion states that she intended the amended complaint to cure any allegational defects, and the proposed amended complaint includes an allegation that the NCAA is an indirect recipient of federal funds. In particular, her proposed amended complaint alleges that “[t]he NCAA is a recipient of federal funds because it is an entity which receives federal financial assistance through another recipient and operates an educational program or activity which receives or benefits from such assistance.” App. at 98. This allegation plainly alleges that the NCAA receives dues from member institutions, which receive federal funds. As discussed above, this allegation would be sufficient to bring the NCAA within the scope of Title IX as a recipient of federal funds and would survive a motion to dismiss.

If a district court concludes that an amendment is futile based upon its erroneous view of the law, it abuses its discretion in denying a plaintiff leave to amend to include a legally sufficient allegation. See Centifanti v. Nix, 865 F.2d 1422, 1431 (3d Cir.1989) (holding that the district court, which erred in its conclusion that there was jurisdictional defect, abused its discretion in denying a plaintiffs‘motion for leave to amend his complaint because the proposed amendment would not cure the jurisdictional defect). Thus, if the district court denied Smith leave to amend because it viewed the proposed amendments as futile, it erred because the conclusion was based on an error of law. Furthermore, we see no basis to conclude that the district court justifiably could have denied the motion to amend on the grounds that Smith had acted in bad faith, with a dilatory motive, or had delayed unduly in bringing the motion or that granting the motion would prejudice the NCAA Indeed, there is nothing in the record to support a conclusion that the district court denied the motion to amend on any of these grounds. Overall, therefore, we are satisfied that the district court abused its discretion in denying the motion to amend the complaint. 9

IV. CONCLUSION

For the foregoing reasons, we will affirm the district court’s dismissal of appellant’s Sherman Act claim, vacate its dismissal of the Title IX claim, and reverse the district court’s denial of her motion for leave to amend her complaint with respect to her Title IX claim. In light of this conclusion, we *191will remand to the district court for further proceedings consistent with this opinion and direct the district court to reinstate her state law contract claim, over which the district court declined to exercise jurisdiction pursuant to 28 U.S.C. § 1367(c). The parties will bear their own costs on this appeal.