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NCAA AND ANTITRUST. NCAA v Okla Regents: THE Major Antitrust Precedent for College OR Pro Sports. 1> Sherman Act only bars unreasonable restraints of trade

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ncaa v okla regents the major antitrust precedent for college or pro sports
NCAA v Okla Regents: THE Major Antitrust Precedent for College OR Pro Sports

1> Sherman Act only bars unreasonable restraints of trade

2> use Rule of Reason because this "involves an industry in which horizontal restraints on competition are essential if the product is to be available at all"

3> KEY R/R EXPOSITION: Price is higher and output lower than they would otherwise be, and both are unresponsive to consumer preference.“

4> THUS: "these hallmarks of anticompetitive behavior place upon petitioner a heavy burden of establishing an affirmative defense which competitively justifies this apparent deviation from the operations of a free market"

review the rule of reason
REVIEW: the Rule of Reason
  • First, pltf establishes actual anticompetitive effect
    • Direct evidence re price or output
    • Indirect evidence of defts’ market power
  • Second, deft demonstrates pro-competitive justifications
  • Third, pltf can rebut by showing that restraint is unnecessarily restrictive
application of the rule of reason to bd of regents
Application of the Rule of Reason to Bd of Regents
  • How would you apply the Rule of Reason to the NCAA’s television agreement?
  • What are the NCAA’s legitimate justifications?
  • What are the real motivations for the NCAA’s agreement?
fundamentally different approaches of majority and dissent
Fundamentally different approaches of majority and dissent
  • Stevens: NCAA as a distinctive commercial product
  • White: NCAA’s non-commercial goals are “central”
ncaa s non profit status
NCAA’s Non-Profit Status
  • Does the NCAA act any differently than it would if it were profit-maximizing? What non-commercial goals are furthered here?
ncaa s special role 2
NCAA’s special role /2
  • Professional Engineers rejected non-economic justifications for restraints of trade by commercial enterprises; BRW says that this principle should not apply to non-profit institutions
    • Do you agree that, while only Congress should be able to allow for-profit companies to restrain trade to achieve socially worthy goals, non-profit institutions should be able to argue to a court that it’s non-economic goals are legitimate justifications for trade restraints under the Rule of Reason?
  • Should NCAA be able to take surplus profits from football and men’s basketball to cross-subsidize non-revenue sports?
distinguishing non commercial restraints
DISTINGUISHING NON-COMMERCIAL RESTRAINTS
  • Smith v NCAA [918] is an important precedent: non-commercial restraints do not ‘restrain trade’
  • No clear restraint in any relevant commercial market
  • No suggestion that intent or effect of rule is to enhance revenues
  • Can’t apply “output responsive to consumer preference” criterion to non-revenue sports, since if responded to consumer preference wouldn’t offer the sport!
commercial non commercial
COMMERCIAL/ NON-COMMERCIAL
  • Why is Smith’s challenge to graduate school participation not analyzed as a restraint of trade?
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