The NCAA and the Rule of Reason

Authors

Herbert J. Hovenkamp, University of Pennsylvania Carey Law SchoolFollow

ORCID

Herbert Hovenkamp 0000-0002-4583-5162

Document Type

Article

Publication Date

7-2017

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 limiting 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, raising 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, Sherman Act, sports, rule of reason, amateurism, O'Bannon

Publication Title

Review of Industrial Organization

Publication Citation

52 Rev. Indus. Org. 323 (2018)

Repository Citation

Hovenkamp, Herbert J., "The NCAA and the Rule of Reason" (2017). All Faculty Scholarship. 1796.
https://scholarship.law.upenn.edu/faculty_scholarship/1796