Review of Industrial Organization

, Volume 52, Issue 2, pp 323–335 | Cite as

The NCAA and the Rule of Reason

Article

Abstract

This brief essay considers the use of antitrust’s rule of reason in assessing challenges to rule-making by the NCAA. In particular, it looks at the O’Bannon case, which involved challenges to NCAA rules that limit the compensation of student athletes under the NCAA rubric that protects the “amateur” status of collegiate athletes. Within that rubric, the Ninth Circuit got the right answer. That outcome leads to a broader question, however: Should the NCAA’s long held goal, frequently supported by the courts, of preserving athletic amateurism be jettisoned? Given the dual role that colleges play, that is a complex question, which raises issues that are not only commercial but also educational. More important for the purpose at hand, is whether jettisoning amateurism in NCAA athletics is a suitable task for an antitrust tribunal. This paper argues that antitrust law is not an appropriate vehicle for addressing that issue. This does not mean that antitrust has no role to play in policing athlete compensation in NCAA schools. But it does suggest that that role be limited to addressing restraints on trade that occur within the rubric of amateur status—at least until such time as a more competent body decides whether amateurism in collegiate athletics is worth preserving.

Keywords

Antitrust NCAA Rule of reason Balancing 

Notes

Acknowledgements

Author thanks to Roger D. Blair, Erik N. Hovenkamp, and Andrew Zimbalist for valuable comments.

References

  1. Areeda, P. E., & Hovenkamp, H. (2011–2018). Antitrust law (22 Vols. 3rd and 4th ed.). New York, NY: Aspen Publishers.Google Scholar
  2. Blair, R. D., & Wenche, W. (2017). The NCAA cartel and antitrust policy. Review of Industrial Organization (forthcoming).Google Scholar
  3. Hemphill, S. (2016). Less restrictive alternatives in antitrust law. Columbia Law Review, 116(4), 927.Google Scholar
  4. Hovenkamp, H. (2016). Antitrust balancing. New York University Journal of Law and Business, 12(2), 369.Google Scholar
  5. Hovenkamp, H. (2017). The rule of reason. Florida Law Review (forthcoming).Google Scholar
  6. Lazaroff, D. (2007). The NCAA in its second century: Defender of amateurism or antitrust recidivist. Oregon Law Review, 86(1), 329.Google Scholar
  7. NCAA.org (last reviewed March 10, 2017). Estimated probability of competing in professional athletics. http://www.ncaa.org/about/resources/research/estimated-probability-competing-professional-athletics.
  8. White, L. J. (2008). Market power and market definition in monopolization cases. In W. D. Collins (Ed.), Issues in competition law and policy (Vol. 2, pp. 913–924). Chicago, IL: ABA Pub.Google Scholar
  9. Wright, J. D. (2007). Mastercard’s single entity strategy. Harvard Negotiation Law Review, 12(1), 225–232.Google Scholar

Copyright information

© Springer Science+Business Media, LLC 2017

Authors and Affiliations

  1. 1.James G. Dinan University Professor, Penn Law and Wharton Business, University of PennsylvaniaPhiladelphiaUSA

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