Antitrust and the NCAA: Is there a better way?

 

Antitrust actions against the NCAA are numerous lately: the ongoing O’Bannon v. NCAA involves name, image, and likeness rights in collegiate sports as an example.

Is the NCAA model working in collegiate sports given the ongoing antitrust lawsuits such as O’Bannon? Rather than continue with the NCAA model of sports in higher education, combined with strong review from Federal Antitrust Courts, recent articles suggest the time may be approaching for administrative regulation of college sports through a federal, direct Commission (Grow, 2015). This argument proposes a Commission that would be exempted from antitrust and therefore be unrestrained by the restrictions the NCAA finds itself in today.

Photograph - Basketball

Do the Judges on antitrust courts have any interest or experience in collegiate sports? They are called upon in the current system to provide oversight. Antitrust doesn’t fit the NCAA amateur sports institution well because of the nature of teams and conferences in a quasi-non-profit setting, some argue (Grow, 2015). Intercollegiate sports needs collaboration, usually with no anti-competitive motives, unlike other major industries subject to antitrust. Do Judges fully understand the public policy behind the arguments? For example, the principle of amateurism under antitrust has become much more about wealth than education.

Some observers assert that a Commission of experts would do a better job of regulating and adjudicating disputes arising from collegiate sports (Grow, 2015). The Commission would be appointed and subject to political control. Cases like O’Bannon v. NCAA would seek a hearing before the new Commission instead of using slow and costly antitrust courts. For example, the O’Bannon court took five years to reach a decision, and attorney fees requested in that case were $50 million under the treble damages function of antitrust rules.

One problem with this proposal is that the powerful interests in sports may eventually capture the proposed Commission and make it a biased political agency and sports would be in worse shape than it is currently (Edelman, 2015). It is well known that the sports industry, including the NCAA, have powerful lobbying efforts and in the past achieved special legislation to suit their needs such as the Sport Broadcasting Act or Sport Agent Responsibility & Trust Act. A compromised and co-opted Commission might be worse than the antitrust oversight we have today.

Moreover, experts like Edelman (2015) argue that sports antitrust decisions and jurisprudence is quite reliable and progressive over years of litigation and would be made obsolete, unnecessarily, if a special collegiate sport Commission was created. Consumers often are the beneficiaries of antitrust decisions and their interests must be preserved in any reform efforts.

O’Bannon is currently being appealed for a rehearing en banc before the Ninth Circuit and soon antitrust will be in the sports section again.

Edelman, M. (2015).  In defense of sports antitrust law: A response to law review articles calling for the administrative regulation of commercial sports, Wash. & Lee L. Rev. 72, 210, retrieved from http://scholarlycommons.law.wlu.edu/wlulr-online/vol72/iss1/11

Grow, N. (2015) Regulating professional sports leagues, 72 Wash. & Lee L. Rev., 573.

Dr. Robert Hudson, Associate Professor, is the Library Director and Archivist at the United States Sports Academy. He can be reached at rhudson@ussa.edu.

 

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