VI. Antitrust
In the litigation setting, antitrust laws have substantially impacted college sports’ regulatory and business models.
From Board of Regents to White, O’Bannon, and Alston, federal courts in antitrust cases have incrementally (and cautiously) reshaped athlete compensation and nudged NCAA regulatory authority.
Pending cases, including House, Hubbard, Carter, Ohio et al., and Tennessee et al., may substantially influence compensation, transfer, and broader regulatory issues.
However, federal administrative agencies with antitrust jurisdiction have been reticent to intervene in college sports issues in connection with or independent of litigation.
A. U.S. Department of Justice Antitrust Division (DOJ)
The DOJ has expansive jurisdiction over antitrust issues. Its mission is to “[p]romote economic competition through enforcing and providing guidance on antitrust laws and principles.”
Its authorities include civil and criminal investigation, enforcement and penalties, participation in antitrust lawsuits, and entering into consent decrees with antitrust violators to supervise their business conduct.
The DOJ investigates thousands of potential antitrust violations and polices antitrust “bad actors.”
However, the DOJ Antitrust Division has asserted its authority in college sports cases slowly and selectively.
The United States did not intervene in the Alston case until March 10th, 2021, just before oral argument in the U.S. Supreme Court on March 31st, 2021. Its participation came only after a change from the Trump administration to the Biden administration and turnover at the DOJ.
The United States’ intervention was a substantial boost to the athletes’ claims that the NCAA was not entitled to judicially created antitrust immunity.
At oral argument, Solicitor General (representing the United States) Elizabeth Preloger argued against that immunity for the NCAA, characterizing it as an “extraordinary departure” from well-settled antitrust laws and principles.
General Preloger also made a crucial observation on the NCAA’s use and conceptualization of amateurism, saying that amateurism isn’t some free-floating value that trumps antitrust laws but is only relevant in assessing consumer demand and choice in a traditional rule of reason antitrust analysis.
The United States’ intervention in Alston and Ms. Preloger’s persuasive advocacy had a meaningful impact on its presentation and sensible resolution.
Yet, the DOJ has not formally asserted its full antitrust agency regulatory powers—including pursuing potential criminal penalties—to force the NCAA to change its business practices outside the litigation context.
One thing we know about the NCAA and Power 5: they are recidivist antitrust violators because of their ongoing collusion on amateurism-based compensation limits. After each proven antitrust violation (e.g., O’Bannon and Alston), the NCAA denies responsibility, erases the loss from institutional memory, and aggressively seeks various forms of antitrust immunity.
On January 18, 2024, the DOJ intervened in the Ohio et al. v NCAA antitrust case challenging the NCAA’s transfer rules. That suggests a somewhat more aggressive stance in college sports cases; however, the DOJ has not intervened in House v NCAA or any other pending athlete-initiated case.
Importantly, through eleven congressional hearings, no witness from the DOJ’s Antitrust Division has testified to address from a legal and policy standpoint the implications for athletes of the NCAA and Power 5’s unprecedented request for immunity from our nation’s free competition laws.
B. Federal Trade Commission Bureau of Competition (FTCBC)
The FTCBC investigates potential antitrust violations and seeks legal remedies in federal court or before the FTC's administrative law judges.
It has complementary jurisdiction with the DOJ’s Antitrust Division, which handles criminal antitrust enforcement.
The FTCBC has not actively engaged in college sports, and no witness from the Bureau has testified in Congress.
