The Alston Case: Why the NCAA Did not Deserve Antitrust Immunity and Did not Succeed under a Rule-of-Reason Analysis

Abstract

Fall Saturdays and college football. The March Madness basketball tournament. The NCAA plays an important role in many Americans’ lives. But for decades, the association has justified its restrictions on compensation to student-athletes on the basis of “amateurism.” Those attempts just ran into the brick wall of NCAA v. Alston.

This Article is adapted from a brief we filed on behalf of 65 professors in the Alston case. Because the arguments made by the NCAA and the athletic conferences (together, “NCAA”) have been employed so frequently and are so misguided, we address them here. After addressing them, we describe the Supreme Court’s rejection of the NCAA’s arguments.

Central to the Alston case is the NCAA’s pursuit of “amateurism.” For decades, the NCAA has relied on this concept, which involves some version of student-athletes not being paid or being paid limited amounts of money. In the Alston case, the NCAA restricted not only payments unrelated to education but also those related to education—covering, for example, tutoring, scientific equipment, and computers.

Part I of this Article shows how the NCAA’s attempt to obtain immunity is not consistent with fundamental underpinnings of antitrust law. Part II focuses on the Supreme Court’s 1984 decision in NCAA v. Board of Regents of the University of Oklahoma, in which the Court discussed amateurism in dicta in the course of holding that the NCAA’s restrictions on television contracts violated antitrust law. Part III focuses on the Rule of Reason, the form of antitrust analysis used by most courts today, to show how the NCAA’s restrictions were anticompetitive.

We conclude that in Alston, the NCAA sought the knockout punch of antitrust immunity. To put it mildly, it was not successful. Student-athletes will be the beneficiaries.

Keywords: NCAA, student-athletes, antitrust, amateurism, Alston

JEL Classification: D40, D42, K21, L40, L41, L44, L83, O34