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Tuesday, March 31, 2015
Guest Post -- NCAA Academic Requirements: A Lesson for Antitrust Analysis of Amateurism
The following is a guest post by Sherman Clark, Kirkland & Ellis Professor of Law at the University of Michigan:
NCAA Academic Requirements: A Lesson for Antitrust Analysis of Amateurism
Sherman J. Clark
Here is hypothetical but I think illuminating question. If courts determine that it violates antitrust law for NCAA schools to collude in refusing to pay players, might it also violate antitrust law for schools to collude in requiring players to be full-time students? It might seem obvious that academic eligibility and academic progress requirements do not implicate antitrust law; but it seemed equally obvious a generation ago that amateurism requirements do not implicate antitrust law. It seemed obvious; but it was wrong. The logic from Board of Regents to Law to O’Bannon was inexorable. And it does not stop there.
One might be tempted to dismiss this comparison out of hand on the grounds that eligibility rules are fundamentally different from amateurism requirements; and that such rules do not amount to price fixing. But price fixing is not the only thing that violates the Sherman Act. Any restraint of trade that has a substantial impact on competition is illegal if its anti-competitive effects outweigh its pro-competitive benefits.
Here one might say that college sports are different. Exactly. Being a college student has nothing inherently to do with working as a barista, but it has everything to do with playing college sports. What makes college sports what they are is that they are played by student athletes. And that is the point. Colleges are allowed to collude in this market in a way that would be illegal in other labor markets because the nature of the labor is essential to the nature of the product in a way that is not true in other markets. Where a restraint is necessary to define a product, it is not illegal.
But is it necessary that players be full-time students? Bear with me here. Would it really alter the nature of the product to let part-time night students play. Granted, if teams were made up of players who are not students at all, even in name, that might well alter the nature and appeal of the game. But it would probably not make a measurable difference to the character or appeal of college sports if the current academic progress requirements were relaxed a bit.
In the same way, it will probably make little difference to the nature and appeal of college basketball or football if players are paid a $3,500 stipend, or even $20,000. But at some point it might. And how are the courts to draw the line? Of course, courts could simply draw a line by fiat; but the line will be arbitrary and the cases unpredictable. There is no coherent stopping point short of a full free market. In such a market, stars would be paid large amounts and most other players much less—perhaps less even than what their scholarships are now worth. And that might well alter the nature and appeal of the game.
Sherman J. Clark is the Kirkland and Ellis Professor of Law at the University of Michigan Law School.