Foot Faults in Crunch Time: Temporal Variance in Sports Law and Antitrust Regulation

Abstract

The study of sports law is interesting because sports contests provide a microcosm for the observation of rules in action and a laboratory for experiments in legality. In no setting will this experiment play out on a grander scale than the coming realignment of college athletics. Presenting a myriad of issues, conference realignments will present an important question of antitrust law. Unfortunately for the colleges and conferences, the answer to that question is mostly speculative. Antitrust law relies on the “rule of reason” as a touchstone for addressing the legality of anticompetitive conduct, comparing the benefits and costs to consumer welfare with the change in business practices under review. What is reasonable, or more specifically, what the benefits and costs are to consumer welfare, will perforce be different in different markets and at different times. In other words, the enforcement of antitrust law is subject to temporal variance. The legality of any perceived anticompetitive business arrangement will depend on the timing and circumstances of the market in which the business operates.

The enforcement of rules in sports is also subject to temporal variance. Indeed, many sports fans appear to prefer temporal variance in the enforcement of rules. They think game umpires or referees should not call certain transgressions of the rules of the game at certain times. 

Temporal variance in the enforcement of rules is wrong because it defeats the ultimate purpose of rules, wrong because it allows for poorly written rules, wrong because it corrects for (and thereby permits) rules that specify egregious penalties, and wrong because it fails to describe the nature of rules accurately. Most significantly, the justification is wrong because it emphasizes the consequences of the penalty apart from the penalty itself and introduces a foreign and ultimately pernicious set of considerations into the penalty schematic. Temporal variance is wrong in sports, as I suggest it is in the larger arena of antitrust law. “Rules is rules,” Casey Stengel was purported to have said. As usual, he had it right.