In an interview on Thursday, NCAA President Mark Emmert declared that it was time to consider shifting the decision-making authority of college sports from the national level to the individual conference level. Yet, Emmert’s new, proposed course of action is not truly a choice of his own volition. Rather, the decentralizing of college sports is a practical inevitability after the U.S. Supreme Court’s recent decision in Alston v. National Collegiate Athletic Association confirmed what most of us who study antitrust law have already long known — that the NCAA, much like any other trade association, must comply with federal antitrust law.
While there are at least two alternative paths the NCAA member colleges could pursue other than deregulation, both of these alternative approaches present even greater drawbacks. One alternative — simply maintaining all of the NCAA’s restraints on college-athlete compensation that were not directly challenged in the Alston case — would seem to allow the NCAA to continue to ‘kick the can’ on implementing real and meaningful reform. However, this approach would nearly ensure that the monopolist college sports trade association will ultimately die a slow death by many cuts, while in the process continuing to waste time and money defending undefendable antitrust lawsuits, much like Alston.
Yet another approach that NCAA member colleges could consider, but would likely reject, entails voluntarily recognizing some form of a bargaining unit of college athletes and then engaging in good-faith collective bargaining negotiations with this union for purposes trying to insulate themselves from antitrust scrutiny under what is known as the non-statutory labor exemption. Nevertheless, if the NCAA member colleges were to choose this route of recognizing college athletes as employees, they would likewise potentially find themselves needing to pay minimum wage and workers’ compensation to these athletes.
Meanwhile, the deregulation approach that Mark Emmert has now referenced would harm NCAA member colleges far less — simply shifting the collective decisions about restraints on college athlete compensation from the national level to the individual conference level, where these rules would survive antitrust scrutiny as long as (1) each member conference lacks “market power” and (2) the members of any one conference do not collude with the membership of any other conference.
Under a deregulated approach, certain college athletic conferences that care more about tradition than profits, for example the Ivy League, might choose to reinstitute on the conference level some of the NCAA’s traditional restraints on college athlete compensation. Meanwhile, the large and revenue-generating conferences such as the ACC, SEC and Big Ten would almost certainly go the opposite route — preferring something closer to a free market competition for recruiting elite college athletes to the prospect of losing out on elite, revenue-generating athletes to members of one of their rival athletic conferences.
Marc Edelman (Marc@MarcEdelman.com) is a Professor of Law at Baruch College’s Zicklin School of Business, Sports Ethics Director of the Robert Zicklin Center on Corporate Integrity, and the founder of Edelman Law. He is the author of “A Short Treatise on Amateurism and Antitrust Law.”