[Goose]

not all restraints of trade were unreasonable, and that only an unreasonable restraint was prohibited by the Sherman Antitrust Act. Stevens noted that a league governing body was necessary for sporting events to take place and determined that the rule of reason, not per se rules applied to the case.

I think that a NIL case back in the mid-eighties might have been decided in favor of the NCAA.  It certainly would not have been unanimous (the case was decided 7-2 with White and Rehnquist, who felt the NCAA's restrictions were reasonable.



There is a fundamental difference between competitive sports and other forms of entertainment.  Disney doesn't need to put out the latest Star Wars movie in order for Universal to put out a new Bond movie.  Because you need two teams on the field to play a football game, some degree of coordination between teams is necessary, and setting up leagues/conferences in order to coordinate is widely accepted; we aren't going to go back to the days of teams barnstorming around.  Moreover, it is generally accepted (and the NCAA v. Board of Regents agreed) that leagues have an interest in maintaining competitive balance (just that in that particular case, the interest in competitive balance did not justify restricting television deals).  Rules to maintain competitive balance are anti-competitive in any other interest, but I wouldn't count on the Supreme Court (even this one) striking them down on a per se basis.

However, as monopoly power is coming under increased scrutiny generally, and courts are starting to show increased skepticism of leagues assertion of their monopoly power, I think you are right that a number of arrangements will start to be examined (including, for example, the NFL's exclusive license with DirectTV).  I think the most egregious actions by sports leagues will be struck down (except in baseball, which enjoys an anti-trust exemption), and power will generally be devolved from leagues to individual teams.  Consequently, I think players/employees will benefit.  However, I don't think we are on a path to where sports leagues are dissolved by the courts as a violation of anti-trust regulation.





BC

BC, once again you have provided a well-researched and to the point post. It is obvious that Scalia was not on the court in 1984. If he were, he would have undoubtedly issued a scathing dissent. Nothing says congress can pass only "reasonable" laws. The laws they pass may be unreasonable, or may have unintended consequences. What Phogge thinks is reasonable Winflop may think is not. Laws can't rely on fuzzy, unclear principles because it makes them impossible to follow. Equally importantly, Congress has clearly shown by giving MLB an anti-trust exemption that Congress believes such an exemption is necessary for sports leagues to comply with the law. Therefore, the law means exactly what it says, I think that is the message that Kavanaugh is sending. This court isn't going to try and parse what is "reasonable". They are going to apply the law as written interpreted as literally as possible. If the affected parties don't want that, said parties need to lobby Congress and get explicit legislation saying what the  regulatory bodies can and can't do. In the past, the court may have tried to resolve the issues on a case by case basis by "legislating from the bench". This court isn't going to do that So, IMHO if the amateur athletic regulatory bodies, like the NCAA and the conferences want to have any power, they are going to have to get Congress to give it to them. Rules to maintain competitive balance are OK under the present system. This interest of the regulatory bodies is recognized. However, restricting commerce to accomplish this is goal is contrary to law, and the court isn't going to parse around that fact anymore. I think the court is saying "Don't count on us to fix this. It is up to Congress. If that doesn't happen, we will strike down any enforcement by regulatory bodies that restrains trade, so don't go there." The court won't dissolve these bodies per se, but they will be toothless and unable to conduct any "commerce related" activities.

From that point of view, the power will devolve to the individual teams. It is suggested that will benefit the players. I think in general it will not, because the TV goose that was laying golden eggs now has to deal with a hundred or so different entities, most of which have little or no audience appeal. The playing field was kept somewhat level by the teams banding together and contracting together. That won't be possible without new legislation. Therefore a few big football colleges will benefit. Everybody else get nothing or next to nothing. I think the damage to college athletics will far outweigh the benefits a few players/employees receive. That is why I dearly hope we can get some legislation to preserve amateur sports.

[Goose]

not all restraints of trade were unreasonable, and that only an unreasonable restraint was prohibited by the Sherman Antitrust Act. Stevens noted that a league governing body was necessary for sporting events to take place and determined that the rule of reason, not per se rules applied to the case.

I think that a NIL case back in the mid-eighties might have been decided in favor of the NCAA.  It certainly would not have been unanimous (the case was decided 7-2 with White and Rehnquist, who felt the NCAA's restrictions were reasonable.



There is a fundamental difference between competitive sports and other forms of entertainment.  Disney doesn't need to put out the latest Star Wars movie in order for Universal to put out a new Bond movie.  Because you need two teams on the field to play a football game, some degree of coordination between teams is necessary, and setting up leagues/conferences in order to coordinate is widely accepted; we aren't going to go back to the days of teams barnstorming around.  Moreover, it is generally accepted (and the NCAA v. Board of Regents agreed) that leagues have an interest in maintaining competitive balance (just that in that particular case, the interest in competitive balance did not justify restricting television deals).  Rules to maintain competitive balance are anti-competitive in any other interest, but I wouldn't count on the Supreme Court (even this one) striking them down on a per se basis.

However, as monopoly power is coming under increased scrutiny generally, and courts are starting to show increased skepticism of leagues assertion of their monopoly power, I think you are right that a number of arrangements will start to be examined (including, for example, the NFL's exclusive license with DirectTV).  I think the most egregious actions by sports leagues will be struck down (except in baseball, which enjoys an anti-trust exemption), and power will generally be devolved from leagues to individual teams.  Consequently, I think players/employees will benefit.  However, I don't think we are on a path to where sports leagues are dissolved by the courts as a violation of anti-trust regulation.





BC

BC, once again you have provided a well-researched and to the point post. It is obvious that Scalia was not on the court in 1984. If he were, he would have undoubtedly issued a scathing dissent. Nothing says congress can pass only "reasonable" laws. The laws they pass may be unreasonable, or may have unintended consequences. What Phogge thinks is reasonable Winflop may think is not. Laws can't rely on fuzzy, unclear principles because it makes them impossible to follow. Equally importantly, Congress has clearly shown by giving MLB an anti-trust exemption that Congress believes such an exemption is necessary for sports leagues to comply with the law. Therefore, the law means exactly what it says, I think that is the message that Kavanaugh is sending. This court isn't going to try and parse what is "reasonable". They are going to apply the law as written interpreted as literally as possible. If the affected parties don't want that, said parties need to lobby Congress and get explicit legislation saying what the  regulatory bodies can and can't do. In the past, the court may have tried to resolve the issues on a case by case basis by "legislating from the bench". This court isn't going to do that So, IMHO if the amateur athletic regulatory bodies, like the NCAA and the conferences want to have any power, they are going to have to get Congress to give it to them. Rules to maintain competitive balance are OK under the present system. This interest of the regulatory bodies is recognized. However, restricting commerce to accomplish this is goal is contrary to law, and the court isn't going to parse around that fact anymore. I think the court is saying "Don't count on us to fix this. It is up to Congress. If that doesn't happen, we will strike down any enforcement by regulatory bodies that restrains trade, so don't go there." The court won't dissolve these bodies per se, but they will be toothless and unable to conduct any "commerce related" activities.

From that point of view, the power will devolve to the individual teams. It is suggested that will benefit the players. I think in general it will not, because the TV goose that was laying golden eggs now has to deal with a hundred or so different entities, most of which have little or no audience appeal. The playing field was kept somewhat level by the teams banding together and contracting together. That won't be possible without new legislation. Therefore a few big football colleges will benefit. Everybody else get nothing or next to nothing. I think the damage to college athletics will far outweigh the benefits a few players/employees receive. That is why I dearly hope we can get some legislation to preserve amateur sports.