The NCAA Invites Another Antitrust Slap-Down

February 22, 2024

By Robert Bork Jr.

The legendary coach John Heisman began each season by holding up a football and asking: “What is this? It is a prolate spheroid, an elongated sphere in which the outer leather casing is drawn tightly over a somewhat smaller rubber tubing. Better to have died as a small boy than to fumble this football.”

The U.S. Supreme Court took the same tone in its 2021 unanimous spanking, I mean opinion, concerning the National Collegiate Athletic Association (NCAA) in NCAA v. Alston. The Court noted that the Sherman Antitrust Act unequivocally outlaws “the restraint of trade.” But the NCAA had long acted as if it had a better standard than the plain meaning of a foundational federal law. It used its rules on “amateurism” to prevent college athletes from earning education-related payment from the sales of their names, images, and likenesses. Somehow, the NCAA expected the high court to buy that its standards superseded the law.

The Supreme Court’s opinion, in effect, held up the Sherman Act and asked: “What is this?” The Court showed that if the NCAA was allowed to maintain this stance, the principles of this ruling would likely be extended by the courts, perhaps in the decades-long tug of war between the Court and Congress over professional baseball and antitrust. Justice Brett Kavanaugh said in oral arguments:

“Schools are conspiring with competitors — agreeing with competitors, let’s say that — to pay no salaries for the workers who are making the school billions of dollars on the theory that consumers want the schools to pay their workers nothing. And that just seems entirely circular and even somewhat disturbing.”

You would think that would be that, but no. The NCAA resolved to follow the letter of the law, while sawing the legs, ears, and shoulders off the letters. It enacted policies to prevent the student-athlete market from functioning, billing this as “student-athlete protections.” The NCAA banned prospective college athletes, including those already in a college but looking to transfer, from discussing potential opportunities regarding their name, image, and likeness before they actually enrolled.

Enter Jonathan Skrmetti and Jason Miyares, the attorneys general of Tennessee and Virginia, who filed a federal lawsuit to compel the NCAA to make its practices comply with the Sherman Act. While a federal judge recently denied the AGs’ request for a temporary restraining order, he wrote that they were “likely to succeed on the merits of their claim” under the Sherman Act.

In their filing, the attorneys general compared the restrictions on the athletes to “a coach looking for a new job, and freely talking to many different schools, but being unable to negotiate salary until after he’s picked one (the depressive effect on coaches’ wages in such a such [sic] a dysfunctional market is obvious).” Or you could liken it to a Let’s Make a Deal episode in which the contestant chooses a door without knowing if it hides a shiny new sedan or a voracious monitor lizard.

NCAA investigations were triggered in January against the University of Florida and the University of Tennessee over purported violations of its discussion rules. This follows NCAA punishments after a Florida State coach committed the unpardonable, venal, craven error of giving a prospect a car ride to a meeting to discuss a deal. The NCAA hit Florida State’s football program with fines and two years of probation.

The AGs told the court: “This chilling effect on NIL discussions means a college athlete cannot speak even with a single collective, let alone negotiate with multiple collectives for the best NIL compensation package.” Worse, the NCAA’s fast recruiting calendar — the early signing period in Division I football can be a mere three days, and about seven weeks in the regular signing period — adds to the pressure by forcing decisions to be made within the short window of early and regular signing periods. This means that many students are forced to commit before knowing what opportunities may exist in the market for their name, image, and likeness.

At each turn, the NCAA rules seem designed to reduce the bargaining power of student athletes. There is something grotesque about applying such stringent rules to college athletes — many from disadvantaged backgrounds and the shining hope of their families — while the universities are free to earn up to a quarter of a billion dollars a year from their football programs. You might wish that college football wasn’t so commercialized, but it has been for decades by the colleges and universities themselves. It makes no sense to allow generous rules for the institution and restrictive rules for the student athlete — unless, of course, your goal is to press the scales.

The logic of this case — and the pending plea for a preliminary injunction — is solid. It is based on a recent precedent and the clear thinking of that Supreme Court opinion. And it appeals to fairness, with many Davids ready to throw their prolate spheroids against the towering collegiate institutions. Kudos to these state attorneys general for throwing a flag.

Originally published at the National Review.