A Modest Proposal for Taming the Antitrust Beast

Abstract

Absent an antitrust exemption, and assuming the continuing vitality of the amateurism beast, the goal of this short piece is modest—to suggest the creation of a test that provides a coherent mechanism for setting limits on the ability of the NCAA to restrict competition for student-athletes. The current models simply do not work. Among other things, they lead to ad hoc (and intellectually unsatisfying) partial exemptions or presumptions that restraints are legal merely because they contribute to amateurism. Rather than continue the charade of analyzing the social effects of amateurism under the traditional Rule of Reason analysis, this piece suggests that courts may be better off applying a nontraditional antitrust test to govern NCAA conduct. Two possible solutions are Addyston Pipe’s less restrictive alternative inquiry or the globally accepted proportionality analysis.