By Edwin A. Farley
Download the article here: Breaking the Broadcast Huddle: How College Football Conferences’ Bundling of Broadcast Rights Could Harm Student Athletes.
Recent realignment activity between collegiate athletic conferences reveals how the sale of broadcast rights and the treatment of student athletes, including their compensation, are connected. The pursuit of greater revenue from broadcast rights for college football games has been the driving factor behind conference realignment. In practice, realignment has meant consolidation. As schools consolidate into fewer, larger conferences, they will also have more power to suppress student athletes’ compensation—itself an uncertain area developing at breakneck pace. In Nat’l Collegiate Athletic Ass’n v. Alston, the Supreme Court struck down an NCAA-wide limit on in-kind compensation and benefits to student athletes. The opinion noted that individual conferences could set similar, restrictive rules on compensation, but if consolidation continues, the Court’s logic conceivably starts to apply to a dominant single conference or pair of conferences. Thus, conference consolidation motivates new scrutiny. This Article argues that taking action against anticompetitive activity associated with the bundling of broadcast rights could both protect the conditions of student athletes and disincentivize the kind of recent conference realignment that has elevated schools’ interests in broadcast revenue over those of the student athletes. If steps were to be taken to curtail coordination around the sale of broadcast rights, schools could again look to organize conferences based on other factors—factors that could be considered “pro-competitive” because of how they relate to the unique character of college sports, such as regionality, history and rivalry, common interests, and a holistic approach to sports beyond football.
I. Introduction
The tremendous popularity of college football creates a significant revenue-generating opportunity and the prospect of increased visibility for universities. The economic rewards of winning have generated fierce off-field competition among schools seeking to develop winning teams, but also to fully capture the economic value of their sports products, such as by maximizing fan and booster support, commercial sponsorships, but more than anything else, television broadcast revenues. The economic realities of today’s college sports stand in stark contrast to the nostalgic ideal of the student athlete whose participation in a sport is an exercise of school pride on equal footing with their academic pursuits.
The National Collegiate Athletic Association (“NCAA”) divides schools into different divisions of competition, with “Division I” as the highest level. The vast majority of Division I schools are members of athletic conferences that each engage in common scheduling of games between their members and crown conference champions. Within conferences, member schools also pool their broadcast rights into lucrative packages for sale to television networks. The decisions in Nat’l Collegiate Athletic Ass’n v. Bd. Regents Univ. Okla.[1] and United States v. Nat’l Football League[2] suggest that pooled rights agreements between multiple schools that restrict each school’s sale of their own broadcast rights have the makings of unreasonable restraints of trade that violate Section 1 of the Sherman Antitrust Act (“Section 1”).[3] Am. Needle, Inc. v. Nat’l Football League[4] also speaks to agreements, such as pooling of rights, that are ancillary to the underlying common endeavor in which the parties to the agreement are otherwise engaged and in which they are separate entities.[5] Broadcast revenue is important for sports teams, more so than licensing for apparel considered in Am. Needle, and it is an area where Congress acted to specifically exempt some level of coordination for professional sports—but such exemptions do not apply to NCAA sports. Though past antitrust challenges to pooled rights agreements have been at the level of Division I in its entirety, now, as fewer conferences begin to dominate Division I, those dominant conferences may have sufficient impact on the price and output of college football broadcast rights to become “unreasonable” under Section 1.
The NCAA has also faced scrutiny for its restrictions on student athlete compensation. In Nat’l Collegiate Athletic Ass’n v. Alston,[6] the United States Supreme Court struck down a Division I-wide limit on in-kind compensation and benefits to student athletes. The Court simultaneously noted that conferences likely could set similar or more restrictive rules on compensation, but if conference consolidation continues, the Court’s logic could conceivably start to apply to the dominant conferences. Conference consolidation doesn’t have to be complete consolidation to have an effect; starting in 2024, nearly all of the most competitive and popular football schools will be concentrated in the Big Ten Conference and the Southeastern Conference (“SEC”). High school seniors looking to play football at a high level will be limited to a significant extent to schools in the Big Ten and SEC and will therefore have to submit themselves to the compensation rules of those conferences. The Big Ten and SEC have already announced they will be collaborating to establish common rules for student athlete compensation.
Recent conference realignment has shown that broadcast rights and the treatment of student athletes, including their emerging modes of compensation, will be connected if they aren’t already. The pursuit of greater revenue from broadcast rights has driven conference realignment; and in practice, realignment has meant consolidation. As schools consolidate into fewer, larger conferences, the conferences will have more power to suppress the wages and autonomy of student athletes, as the Court considered in Alston. As the landscape of college sports continues to evolve, scrutiny of potentially anticompetitive activity associated with the bundling of broadcast rights could be a way to both protect the conditions of student athletes and encourage preservation of the aspects of college sports that make it unique—its history and traditions.[7]
This Article proceeds by introducing the background of the current college football landscape—the schools, deals, and changes that precipitated the shifting conference structure of college sports that this Article analyzes. Next, the Article explores the two components to the ongoing trend of conference realignment that accelerate conference consolidation with the potential to compromise recent gains by student athletes. The first component concerns broadcast rights. This Article analyzes conference member schools’ practice of bundling broadcast rights for sale as a single package using the “rule of reason” under Section 1. It argues these arrangements have the makings of an antitrust violation—anticompetitive effects in the absence of procompetitive justifications—leaving only the question of conferences’ market shares, which have already shifted significantly towards consolidation with the realignment taking effect for the 2024 season. The next component is conferences’ control of student athlete compensation and benefits. This Article presents how the Alston decision, which dealt with Division I-wide caps on student athletes’ compensation, takes on new meaning as conferences consolidate in pursuit of greater broadcast revenue, as enabled by conferences’ bundling agreements.
II. Background
A. Pooling Broadcast Rights at the Conference Level
The prevailing structure of broadcast rights agreements within a collegiate athletics conference involves member schools transferring the broadcast rights to their respective home games to the conference entity, effectively forming a joint venture for the sale of broadcast rights.[8] The conference then markets the pooled rights as a package and enters agreements with television networks that grant the networks the right to broadcast a selection of a certain number of games per year from the conference’s “inventory.”[9] The overall proceeds from the sale of the pooled broadcast rights are then distributed evenly among a conference’s member schools.[10] Multi-network deals may grant networks priority in choosing games based on timing and quality of the match-up.[11] In effect, the conference determines the match-ups and the networks determine the timing of games each week.[12] Proceeds from post-season “bowl games” or the College Football Playoff (“CFP”) go to participating schools’ conferences to again be distributed among conference member schools as conferences see fit.[13]
The vast majority of Division I schools are members of conferences and participate in pooling broadcasting rights.[14] Few “independent” schools remain, but University of Notre Dame is an important and lasting exception. In 1990, Notre Dame split from the 63-member “College Football Association” to pursue its own broadcast deal.[15] When Notre Dame reached its own agreement with NBC it was seen as a monumental development, showing the value that a team’s brand could carry. Its scale was also unheard of at the time: Notre Dame would receive $38 million from NBC in exchange for the right to broadcast all its home games for five seasons through 1995.[16] The scale of broadcast contracts today has since dwarfed Notre Dame’s 1991 deal; each Big Ten team now receives on average $71.874 million each year from the conference’s broadcast deals.[17] Notre Dame was among the most popular programs in 1990 when it broke off on its own in the broadcast realm, but given the massive popularity of college football today,[18] an independent deal like Notre Dame achieved in 1991 is no longer so far-fetched even for schools that fall short of Notre Dame’s enduring, outlying popularity. Viewers are interested in “Big Ten football,” or “SEC football,” meaning every team in a large conference has valuable home game rights.[19]
This structure of conference broadcast rights agreements emerged following the Supreme Court’s decision in NCAA v. Regents.[20] The Court held that the NCAA’s complete control of college football broadcasts at the time was a monopoly in the distinct market for televised college football prohibited by the Sherman Act.[21] By limiting the number of live broadcasts, the Court found that the NCAA was attempting to artificially increase the value of stadium tickets.[22] The liberation of broadcast rights that emerged after the decision transformed the incentives of school athletic departments. The decision catalyzed the pursuit of greater and greater television revenue and exposure, altered the recruiting process for student athletes—eventually forcing schools to compete with the lure of the NFL’s professional salaries—fomented reoccurring bouts of conference realignment, and altered the landscape of post-season “bowl games” in the interest of crowning a national champion before the greatest number of viewers.[23]
B. Realignment Fear and Opportunity
A total of seventeen schools will be changing conferences in 2024.[24] The current wave of conference realignment can be traced to 2021 when the University of Oklahoma and the University of Texas, two schools with among the most prominent and profitable football programs in the country, announced that they would leave the Big 12 Conference and join the SEC in 2025.[25] In February 2023, the schools announced the realignment date was moved earlier to 2024.[26] The move was motivated by several factors, such as dissatisfaction with the Big 12’s leadership and stability, desire for more exposure and revenue from the SEC’s television contracts, and on-field ambitions to compete at the highest level of college football.[27] The departure of Oklahoma and Texas left the Big 12 in a precarious position at the time, as it lost its two flagship programs and faced uncertainty about its future viability.[28]
This realignment had ripple effects at the time. The SEC’s dominance in college football appeared more assured when it added two perennial national contenders to its already powerful lineup of teams.[29] The Pac-12 Conference, Atlantic Coast Conference (“ACC”), and the Big Ten explored the possibility of forming an “alliance” to counterbalance the SEC’s influence and to collaborate on scheduling, governance, and media rights issues, but the initiative was short-lived.[30]
C. Disintegration of the Pac-12 Conference
On June 30, 2022, the University of California, Los Angeles (“UCLA”) and the University of Southern California (“USC”) announced plans to leave the Pac-12 for the Big Ten starting in 2024.[31] Things seemed settled for a time, but a year later, on July 27, 2023, the University of Colorado announced it would be leaving the Pac-12 to re-join the Big 12 starting in 2024.[32] The University of Utah, the University of Arizona, and Arizona State University would follow suit.[33] Soon thereafter, on August 4, 2023, the University of Oregon and the University of Washington announced that they would be leaving the Pac-12 and joining the Big Ten starting in 2024.[34] The Big Ten Council of Presidents and Chancellors voted unanimously the same day to approve Oregon and Washington joining the conference effective August 2, 2024. These moves caused controversy and concern among fans and athletes. For instance, 87% of respondents in an online poll said they were unhappy with Oregon’s decision to join the Big Ten,[35] and for non-football student athletes themselves, a move from the Pac-12 to Big Ten could be onerous.[36]
Schools have been opaque in explaining their motivations for conference realignment, but the potential for increased broadcast revenue and exposure for the schools involved were likely primary factors. Indeed, the 2024 realignment dates coincided with the end of the Pac-12’s existing broadcast deal.[37] Deion Sanders, Colorado’s head football coach, expressed his view that realignment was “all about money.”[38] The athletic director of the University of Nebraska, a Big Ten member, postulated that the changing nature of TV deals and the potential of streaming were driving realignment and that he believed the trend would continue.[39] Big Ten Commissioner Kevin Warren added to that speculation when he said that more conference expansion could be coming; however, he also stated that any expansion would be done for the “right reasons, at the right time,” with students’ academic and athletic empowerment at the center.[40] The ACC will not lose any member schools at the start of the 2024 season, but up to seven of its members have reportedly expressed dissatisfaction with the conference’s broadcast rights agreement.[41] Even though, for now, schools prefer the reliability of revenue from linear TV, they see opportunity in streaming if the deals could be made more favorable.[42]
Oregon and Washington’s public justifications for their realignment was the “Big Ten’s history of athletic and academic success and long-term stability best positions their teams for future success.”[43] Oregon athletic director Rob Mullens said in a statement that accepting membership into the Big Ten Conference was a transformational opportunity for the University of Oregon to change the short- and long-term trajectory of the university and its athletics department.[44] Washington athletic director Jennifer Cohen said in a statement that the school had tremendous respect and gratitude for the Pac-12, its treasured history, and traditions, but at the same time, it had to respond to recent dramatic changes in the college athletics landscape.[45]
Starting in the fall of 2024, USC, UCLA, Oregon, and Washington will leave the Pac-12 for the Big Ten. Colorado, Utah, and the Arizona schools will leave the conference for the Big 12. Additional potential realignment is brewing in the ACC and courts may have a say in it. Clemson University and Florida State University, both ACC members, have sued the ACC challenging the conference’s $140 million exit fee and the scope of the schools’ grant of broadcast rights to the conference, which are irrevocable until 2036 even if a school leaves the conference.[46] Given external pressures, this agreement is crucial to the ACC’s standing as a conference. Schools in the Big Ten and SEC earn more from their conference’s broadcast deals than the ACC is able to pay.[47] Moreover, schools outside the Big Ten and SEC were explicitly devalued as a part of the broadcast agreement for the CFP when, in 2022, while considering the expansion of the CFP, the Big Ten and SEC threatened to abandon the plan altogether unless a deal was reached that would award the two conferences 58% of all CFP revenue,[48] or about $7 million more per year per school in the Big Ten and SEC than ACC schools would receive.[49] If the ACC’s exit fees are found to be unenforceable, schools that are able to would be more likely to move conferences for richer media deals.[50] In addition, because the ACC’s exit fee structure is not unique among conferences, a ruling for either side would have a broad impact on college sports—either locking schools subject to expensive exit conditions into place, or freeing schools to change conferences, likely favoring the already dominant conferences, as in recent realignment.[51]
D. Looking Ahead
The near future promises turmoil in college sports. The Big Ten and SEC have announced they will be collaborating to “find solutions and steer college sports into the future.”[52] On the broadcast side, Walt Disney, Fox, and Warner Bros Discovery announced a sports streaming joint venture to unify their sports offerings starting in the Fall of 2024.[53] In addition to government scrutiny, the announcement also quickly prompted a lawsuit by streaming competitor, Fubo.[54] Finally, the CFP is expanding from its four-team format introduced in 2014 to a twelve-team format starting in the 2024 season, but calls to further expand the playoff are already being aired before the inaugural season of this first expansion even kicks off.[55]
III. Bundling Broadcast Rights Under Section 1
Conference member schools’ bundling of broadcast rights may represent an illegal joint venture of college football broadcast rights holders that eclipses the conference’s primary function of scheduling sports contests between members. In particular, the post-realignment Big Ten and the SEC have exceeded a rational basis for schools to coordinate with each other besides extracting greater broadcast revenue. There are inherent elements of sports as a product on which sports leagues must coordinate and may coordinate.[56] In college sports, schools have historically been granted the latitude to coordinate to preserve amateurism and promote fair competition.[57] However, the membership and geographic sprawl of the Big Ten and SEC starting in 2024 throw the traditionally accepted procompetitive aspects of the conference structure into question. Common scheduling is no longer guaranteed, and historic and geographic rivalries are no longer preserved.[58] In fact, the Big Ten could use its new position to further expand by leveraging scheduling, not just its appeal to broadcasters.[59]
A. The Rule of Reason Governs Schools’ Practices Under Section 1
The “rule of reason” governs the schools’ conduct under Section 1.[60] Courts applying the rule of reason engage in a burden shifting approach: the antitrust plaintiff, including the government, has the initial burden to prove that the challenged restraint has a substantial anticompetitive effect that harms consumers in the relevant market.[61] If the plaintiff carries its burden, the burden then shifts to the defendant to show a procompetitive rationale for the restraint.[62] If the defendant makes this showing, then the burden shifts back to the plaintiff to demonstrate that the procompetitive efficiencies could be reasonably achieved through less anticompetitive means.[63]
The challenger’s initial burden can be satisfied by direct proof or indirect proof. Direct evidence of anticompetitive effects on the sale of broadcast rights would be “proof of actual detrimental effects [on competition],” such as reduced output, increased prices, or decreased quality in the market.[64] Indirect evidence would be proof of “market power,” plus evidence that the challenged restraint harms competition.[65] In an arrangement that limits schools’ individual sale of broadcast rights, the anticompetitive harm emerges from the combination of a horizontal agreement to pool rights to then engage in a vertical licensing agreement with broadcasters and television networks. It is nevertheless appropriate to analyze such an arrangement under Section 1.[66]
Collegiate athletic conferences that pool broadcast rights of their member schools can be characterized as joint ventures. Not all joint ventures are permissible, but because of their efficiency-enhancing potential, courts apply the rule of reason to the formation of joint ventures.[67] Indeed, price fixing between competitors—generally a “per se” illegal restraint—may be justifiable in certain circumstances when done through a joint venture.[68] The rule of reason will not protect a joint venture when, for example, its restraint on trade is not reasonably necessary to achieve any efficiency-enhancing benefits of a joint venture.[69] Such restraints are evaluated apart from whatever pro-competitive aspects the joint venture may have.[70] When it comes to sports broadcasting, “[e]ven if certain agreements by sports leagues with respect to telecasting games may be ‘essential if the product is to be available at all’ this does not give league agreements regarding television rights blanket immunity from antitrust scrutiny.”[71]
A conference may be a lawful joint venture for some purposes,[72] but that does not completely insulate it from scrutiny under the rule of reason.[73] The broadcast rights at issue here initially belong to the individual schools.[74] Thus, any rights sales by a conference composed of schools constitutes an agreement among competitors to jointly sell these valuable rights. Individual schools would have competed against each other in the market for broadcasting rights if they did not give up control of their rights in the agreement forming the joint venture.[75] For instance, for the Big Ten and SEC to make broadcasting agreements, each member school must transfer their broadcast rights to the conference; the conference then pools the rights and acts as the sole driver in making agreements with broadcasters for sale of the pooled rights. The horizontal agreement between the schools (embodied in the conference) and the vertical agreement between the conference and the broadcasters work in tandem, much like the arrangements in DirecTV, which were analyzed under Section 1.[76] The formation of this joint venture at the conference level is subject to the rule of reason.[77]
B. Anticompetitive Effects of Bundling Broadcast Rights
In NCAA v. Regents, the Court’s majority strongly suggested that primarily noncommercial NCAA rules meant to preserve amateurism, academic integrity, and competitive balance did not violate the antitrust laws.[78] The broadcast rules were not such rules in NCAA v. Regents; in fact, the NCAA did not argue that they equalized competition.[79] Meanwhile, by contrast, courts subsequently found athletic eligibility rules were not per se illegal price fixing of labor inputs to sports products and upheld such rules imposed by the NCAA.[80]
Agreements in restraint of trade that reduce the importance of consumer preference in setting price and output violate a fundamental goal of antitrust law.[81] After all, Congress designed the Sherman Act as a “consumer welfare prescription.”[82] Thus, a practice in broadcasting that results in “‘[m]any games for which there is a large viewer demand are kept from the viewers, and many games for which there is little if any demand are nonetheless televised’ may constitute an antitrust violation.”[83]
1. Alternatives for Competition in Broadcasting
The suddenness of recent conference realignment should dispel the idea that the structure of college sports cannot be altered going forward. Broadcast rights arrangements are an element of that structure for which courts have expressed clear ideas about schools’ alternatives. In NCAA v. Regents, the Court described its vision of a competitive market for the sale of broadcast rights for college football games:
[I]n a competitive market, each college fielding a football team would be free to sell the right to televise its games for whatever price it could get. The prices would vary for the games, with games between prominent schools drawing a larger price than games between less prominent schools. Games between the more prominent schools would draw a larger audience than other games. Advertisers would pay higher rates for commercial time because of the larger audience. The telecaster would then be willing to pay larger rights fees due to the increased prices paid by the advertisers. Thus, the price which the telecaster would pay for a particular game would be dependent on the expected size of the viewing audience.”[84]The Court noted that schools “are clearly able to negotiate agreements with whatever broadcasters they choose.”[85] Indeed, after NCAA v. Regents was decided, schools arranged telecasting on their own and the effects of increased competition were documented: output increased and prices decreased.[86] In contrast, protected by the Sports Broadcasting Act,[87] the NFL’s control over pooled broadcast rights increased revenues from telecasting[88] while the number of telecasts available to consumers decreased.[89] The same effect as in the wake of NCAA v. Regents could be achieved today if the conference model for broadcast rights were abandoned—Notre Dame already does so.[90]
First, absent the current arrangement, packages or sub-packages of games would be available from more distributors, including “simulcasting” of games on multiple platforms or channels.[91] Second, teams and their broadcast partners would be free to distribute their own telecasts in competition with each other and other packages—after all, the agreement to pool rights is an agreement not to compete on the sale of rights. It is understood that artificially reducing output causes prices to rise, and supracompetitive prices in turn cause output to fall further, as fewer consumers are willing to accept the “monopoly price.”[92] Again, although Notre Dame stands out for its independent practices for football broadcast rights, the conduct of the remaining major schools does not establish the baseline for comparison—the proper comparison is the world without conferences’ pooling practices.[93] After all, the result in NCAA v. Regents was reached because prices were higher and output lower “than they would otherwise be,” indicating the NCAA agreement was anticompetitive and thus illegal under the rule of reason—a paradigmatic antitrust violation.[94]
2. Realities of Realignment
In NCAA v. Regents, the Court accepted, “[b]ecause of the NCAA controls, the price which is paid for the right to televise any particular game is responsive neither to the relative quality of the teams playing the game nor to viewer preference.”[95] The post-realignment Big Ten and SEC are head and shoulders above the remaining conferences, and the Big Ten merits special attention because the size of its viewership gains from realignment. To be sure, a viewer could choose to watch the SEC instead of the Big Ten, but the Big Ten will now have 18 teams with diverse fan bases—coast to coast, likely with different preferences. The Big Ten also has great disparity in quality of teams.[96] These emerging conditions are ripe for compromising competition.[97]
Realignment has consolidated broadcast viewership in the Big Ten and SEC. As shown in Table 1 and Table 2 below, the Big Ten will gain significant viewership through realignment—reaching 150% of its average weekly viewership from 2023. Realignment will likely bring the Big Ten and SEC’s combined weekly viewership share to a majority of over 60%.[98]
Table 1: Pre-Realignment Average Weekly Viewership Shares
| Conference | Share of Weekly Average Viewers |
| ACC | 15.56% |
| Big 12 | 12.51% |
| Big Ten | 18.47% |
| Independent | 2.62% |
| Pac-12 | 20.46% |
| SEC | 30.39% |
Table 2: Post-Realignment Average Weekly Viewership Shares
| Conference | Share of Weekly Average Viewers |
| ACC | 17.79% |
| Big 12 | 15.63% |
| Big Ten | 28.12% |
| Independent | 2.70% |
| SEC | 35.76% |
The NCAA’s control of the output for the entire market of Division I college football was crucial to the Court’s treatment of its policies in NCAA v. Regents. For now, these viewership shares presented in Table 2 likely indicate that no single post-realignment conference has sufficient market share in a market for broadcast rights that would lead to their conduct violating the rule of reason; however, the Big Ten and SEC now represent nearly the entire market for premier games on television. Out of the 50 most watched games of the 2023 season, 23 featured a team that will be in the Big Ten in 2024, 21 featured a team that will be in the SEC in 2024, and 44 of 50 games featured a team that will be in the Big Ten or SEC in 2024.[99] Thus, like the NCAA’s output restrictions, the Big Ten’s and the SEC’s practices have the potential to “eliminate[] competitors from the market, since only those broadcasters able to bid on television rights covering the entire [Big Ten and/or SEC] can compete.”[100] This could reach the point of “grossly distort[ing] the prices actually paid for an individual game from that to be expected in a free market,” as was the case with the NCAA itself.[101] The likely underlying motivation of the Pac-12 teams that left the conference for the Big Ten—a better broadcasting deal—also speaks to an inference of restricted output and elevated prices.
Furthermore, the trend towards consolidation is likely to continue. For instance, Florida State, the most viewed team in the ACC, has been trying desperately to leave the conference.[102] Conferences may also increase coordination between themselves, as the Big 10 and SEC have begun exploring a “joint advisory group” to coordinate school policy on a variety of issues, such as name, image and likeness (“NIL”) policies and existing antitrust and labor litigation facing the NCAA.[103]
3. Lessons From the Sports Broadcasting Act
Courts understand sports organizations are capable of conspiring with member teams in violation of the antitrust laws.[104] Agreements among member teams to sell television rights in a cooperative fashion could also “run afoul of the Sherman Act.”[105] The Sports Broadcasting Act (“SBA”) exempts from the antitrust laws pooled-rights agreements among members of professional sports leagues. It protects, in relevant part, “any agreement by or among persons engaging in or conducting the organized professional team sports of football, [] by which any league of clubs participating in professional football . . . contests sells or otherwise transfers all or any part of the rights of such league’s member clubs in the sponsored telecasting of the games of football, . . . engaged in or conducted by such clubs.”[106]
The SBA emerged in the context of the NFL’s pooled rights agreement. Congress reacted to the decision in United States v. Nat’l Football League.[107] There, the government had sought to enjoin the enforcement of “Article X” of the NFL’s by-laws, by which NFL teams pooled their broadcasting rights into one package in an attempt to regulate the broadcast of out-of-market games into the home territories of other teams.[108] The government argued the provision eliminated competition for local broadcasting rights.[109] Applying the rule of reason under Section 1, the district court held that the restriction on the broadcast of out-of-market games when home teams were playing away was an impermissible restraint of trade.[110] The decision threatened then-Commissioner Rozelle’s plan to use shared television revenue to maintain competitive balance on the field.[111] Following a successful lobbying campaign by the NFL, Congress passed the SBA to supersede the decision and preserve the availability of NFL games on free broadcast television.[112]
In stating that “the NCAA’s television plan has a significant potential for anticompetitive effects,” the Court in NCAA v. Regents found it “not without significance that Congress felt the need to grant professional sports an exemption from the antitrust laws for joint marketing of television rights.”[113] The Court saw the connection between the NCAA’s conduct and that of the NFL that prompted Congress to exempt it from the antitrust laws,[114] but did not extend that exemption to college football. Courts recognize that the distinction between professional and college is reflected in the purpose of the SBA.[115]
Although the SBA does not apply to college sports because they are not “professional” sports, courts’ treatment of the SBA’s exemption offers further support for the notion that the conferences member schools’ actions are anticompetitive. In Shaw v. Dallas Cowboys Football Club[116] the Third Circuit dealt with the narrow applicability of the SBA.[117] The plaintiff class alleged the NFL’s joint agreement with satellite broadcast distributor DirecTV violated Section 1 of the Sherman Act and sought declaratory and injunctive relief from the NFL teams’ agreement “caus[ing] artificially high and noncompetitive prices for NFL satellite broadcasts and restrict[ing] the options available to NFL fans.”[118] The NFL meanwhile argued its pooled sale to DirecTV was nonetheless within the SBA’s antitrust law exemption because it constituted a “sale of residual or retained rights in the sponsored telecasts” insulated by the SBA.[119] Antitrust liability turned on the meaning of the phrase “sponsored telecasting” in the SBA.[120] The Shaw court found the SBA did not cover satellite broadcasts: the broadcasts on DirecTV were not “sponsored” broadcasts, which are provided for free to the general public over the air thanks to advertising sponsors; instead the DirecTV broadcasts were purchased directly by customers.[121] Moreover, the exemption applied to the “transmission,” not the transmitted images, and paid satellite broadcasts were a separate “telecast,” or “transmission,” even if the broadcasted images were identical to those of the exempted transmission.[122] The SBA’s exception thus did not apply.
Shaw emphasizes the narrowness of the SBA’s exemption, on top of the general understanding that antitrust exemptions are narrowly construed. Thus, even if broadcasts of college football games were covered by the SBA, already a stretch of the exemption,[123] non-sponsored broadcasts would not be covered, nor would non-transmission broadcast methods, including streaming.[124]
C. Procompetitive Justifications for Conferences’ Pooling of Rights
The value of amateurism and the unique characteristics of college sports described as procompetitive justifications in NCAA v. Regents are less salient today since the Court’s decisions in O’Bannon v. Nat’l Collegiate Athletic Ass’n[125] and Alston.[126] Other procompetitive justifications have been presented in the context of sports, including equalizing competition, the inherent qualities of sport as a product, and the suggestion that leagues represent single entities. These justifications likely would not protect the practices of conference member schools if anticompetitive effects on the broadcast rights market were shown.
1. Equalizing Competition
Equalizing competition can be cast as a procompetitive endeavor—resulting in better entertainment for the public, higher salaries for the players, and increased financial security for clubs—but to prevail in a rule of reason analysis, a procompetitive effect must be felt in the same market as the restraint.[127] A restraint on trade cannot stand because the restraint in one market and the benefit in another “net . . . out mathematically.”[128] Therefore, courts have generally rejected the legality of restraints that are justified by a purpose of promoting “on-field” competition—sports competition—when they don’t also promote “off-field” competition—economic competition.[129] The NFL draft, and restrictions on players who don’t participate in the draft, is an example of a policy that seeks to equalize on-field competition. The draft-related rules considered in Smith v. Pro Football, Inc. might have created procompetitive effects in the market for sports viewership by making games more interesting, but the restraint and its anticompetitive effects were felt in the market for players’ services.[130] Despite the on-field effects, the D.C. Circuit found that the draft policy was anticompetitive because it “inescapably force[d] each seller of football services to deal with one, and only one buyer, robbing the seller, as in any monopsonistic market, of any real bargaining power.”[131]
Conferences and member schools have an interest in equalizing competition. However, conferences’ bundling of broadcast rights to equally distribute revenues is even further removed from on-field competition than a system like a draft to promote a fair distribution of incoming talent.[132] The Court has already expressed doubt that revenue equalization is sufficiently related to equalizing athletic competition to connect the two.[133] Moreover, it is a policy that explicitly limits competition in the broadcast rights market, just as the draft policy considered in Smith removed competition from the player services market without any procompetitive economic effect in the same market as the restraint.[134]
In NCAA v. Regents, the Court found the NCAA-wide restrictions improved competition neither on the field nor in the market for broadcast rights.[135] To be sure, competitiveness concerns could be more salient at the conference level, where members regularly play each other and compete for a conference championship. But this does not describe today’s major college football conferences. As of the 2024 season the Big Ten has almost 20 teams; member teams will not even play most other member teams each year. Moreover, any justification along these lines must confront the general principle that “the rule of reason does not support a defense based on the assumption that competition itself is unreasonable.”[136]
The NFL and its teams have nevertheless implemented a draft, but they have done so though bargaining with the National Football League Players’ Association (“NFLPA”), the union of NFL players.[137] The “labor exemption” is a court-created rule that generally exempts restraints on trade that result from collective bargaining from restrictions of Section 1 of the Sherman Act when the restraints primarily affect employment conditions.[138] Although student athletes may be able to unionize,[139] and courts are considering student athletes’ status as employees,[140] collegiate athletics conferences and the NCAA cannot currently take advantage of the collective bargaining exemptions to the antitrust law.[141]
2. Creating the Sports Product
Conferences’ pooling of broadcast rights is not necessary to make the product of televised college football possible.[142] The fact that Notre Dame independently licenses broadcast rights to its football games provides a persuasive counterexample.[143] Conferences and member schools could argue under the rule of reason that the sheer efficiency of pooling rights increases output, protecting their conduct.[144] To survive, conference member schools’ conduct would have to land somewhere between the agreements discussed in BMI and in Am. Needle. The blanket music license product considered in BMI represented a new, practical product for which the price-fixing effect was ancillary to the pro-competitive joint venture that while admittedly did fix prices, did so in the process of making it possible to market a new product.[145] Meanwhile, unless conferences are prepared to admit their purpose is that of rights aggregator and distributor, a conference’s purpose must be college football itself, and Am. Needle condemns price-fixing agreements that are ancillary to a joint venture’s otherwise procompetitive endeavors.[146] Unlike in BMI, where the packaging of rights to songs for radio play created a desirable product for radio stations that no individual musical artist selling their own rights could provide, there is no indication that college football broadcast rights are the same kind of product.[147] NCAA v. Regents makes finding a middle ground in this context an uphill battle for conference members, having already established a limit to acceptable restraints related to broadcasting, even for a product like college football that already requires some restraints to exist at all.[148]
3. No Single Entity
Conference member schools’ pooling of rights likely cannot benefit from the “single entity” doctrine.[149] Am. Needle found agreements to jointly negotiate licensing deals were unlawful because they deprived the marketplace of independent centers of decision-making.[150] The Court explained, when it came to “marketing property owned by the separate teams,” individual sports teams that together comprise a league “do not possess either the unitary decision-making quality or the single aggregation of economic power” of a single entity and “their objectives are not common.”[151] Recounting the District Court’s finding, the Court in NCAA v. Regents dispelled with the notion that schools become a single entity when marketing broadcast rights, explaining, “if member institutions were free to sell television rights, many more games would be shown on television, and that the NCAA’s output restriction has the effect of raising the price the networks pay for television rights.”[152] We’ll never know what kind of deals television networks or streaming providers could have negotiated with individual members of the Big Ten, because the Big Ten pools rights. This does not make the conference a single entity; the only thing preventing individual schools from selling broadcast rights individually is the existence of their agreement not to, embodied by the conference as a licensing organization.[153] Even if the pooling agreement does not amount to per se price fixing, viewing the conference as a “selling agent” likely does not save the practice when the Big Ten’s members represent such popular and nationally relevant and programs.[154]
D. Merger Analogy for Conference Consolidation
Rather than being viewed as joint ventures, conferences could be characterized as single entities engaged in negotiations over broadcast rights sales, triggering an alternative line of inquiry by analogy to merger activity. Section 7 of the Clayton Act prohibits mergers that may “substantially [] lessen competition, or [] tend to create a monopoly . . . in any line of commerce in any section of the country.”[155] When schools abandon their current conference to join a new conference, the “transaction” can be viewed in multiple ways within the logic of a merger. Realignment can be characterized as a large firm—a conference—acquiring several small firms—the schools. Or it can be seen as a firm’s competitors collectively acquiring its constituent parts; in the case of the most recent realignment the remaining four major conferences acquired the Pac-12’s members until the Pac-12, their competitor, disappeared entirely. The Big Ten has gained the most from the disintegration of the Pac-12,[156] claiming 10% of the average weekly viewership,[157] so even the latter analogy can be thought of as a large firm—the Big Ten—acquiring its smaller competitor—the Pac-12—when the most-watched members of the Pac-12 left the conference.
In the product market of broadcast rights for “Power Five” college football (to be “Power Four” in 2024),[158] and a nationwide geographic market, the consolidation of the realignment can represent a “horizontal” merger within the market.[159] The SEC surpasses and the Big Ten approaches the 30% market share that triggers a “presumption” of illegality as recognized in United States v. Philadelphia Nat’l Bank.[160] Furthermore, this is a market that is trending towards consolidation,[161] a finding that has been found to be significant enough to justify blocking a merger leading to a much lower market share in a more fragmented market.[162]
The usual merger-related defenses would not be especially salient.[163] While there is an argument that pooling rights leads to efficiency in negotiating their sale, an efficiency-related defense must identify an efficiency that emerges from the merger, and further consolidation doesn’t make negotiation or bundling of rights more “efficient” than before.[164]
IV. Impacts of Conference Consolidation on Student Athletes
In Nat’l Collegiate Athletic Ass’n v. Alston,[165] the Court considered the NCAA’s restrictions on Division I schools providing student athletes with non-cash compensation for academic-related purposes, such as computers and internships. The NCAA maintained this rule was to prevent the appearance that the student athletes were being paid to play in collegiate athletics or otherwise treated as professional athletes.[166] Lower courts ruled these restrictions violated Section 1 of the Sherman Act and the Supreme Court affirmed.[167] The Court grappled with the concept that college sports is “an industry” in which some “horizontal restraints on competition are essential if the product is to be available at all.”[168]
The Court recounted the district court’s findings that “the ‘most talented athletes are concentrated’ in the ‘markets for Division I basketball and FBS football,’” and that, accordingly, “[t]here are no viable substitutes” for competing in the NCAA’s Division I.[169] The Division I conferences together thus had complete control over the compensation paid to athletes who wish to compete at the top tier of college athletics.[170] The result was less competition for student athlete talent and greater power for the NCAA to suppress student athlete compensation.
A. Implications of the Court’s Treatment of NCAA v. Regents in Alston
The Court’s treatment of NCAA v. Regents in Alston is instructive for how conferences and member schools’ current conduct could be judged. Since NCAA v. Regents, courts’ solicitude for NCAA rules that purport to give its sports product the unique characteristics of college sports has waned.[171] The NCAA’s rules fixing compensation for student-athletes considered in Alston “[fell] on the far side” of the acceptable limit.[172] The schools’ conduct was found to eliminate significant national competition across important dimensions of the student athlete labor market,[173] and the same procompetitive benefits created by some degree of coordination in college athletics could be achieved absent such rules—and absent today’s conference consolidation.[174]
Reliance on “amateurism” and other unique characteristics of college athletics to excuse otherwise suspect conduct should be unavailing in the context of conference realignment.[175] In Alston, the Court rejected the value of “amateurism” in college athletics as a reason, on its own, to forego scrutiny of the NCAA’s practices.[176] The coordination between the departing Pac-12 schools and the members of the Big Ten, for instance, has nothing to do with the character of college football.[177] This conference realignment and effective elimination of a major conference is also a significant change in the structure of the athlete labor market for Division I college athletics compared to when Alston was decided in 2021; the Court already noted in Alston that the evolution in the college sports market at that time counseled assigning less weight to the value of amateurism in its analysis compared to when NCAA v. Regents was decided.[178]
Litigation has continued over the NCAA’s rules and guidelines that remain after Alston. Tennessee and Virginia challenged the guidelines that survived Alston and others adopted in its wake as nevertheless “trying to stop [the NIL] market from functioning.”[179] A preliminary injunction was issued in that case, halting the NCAA’s ban on using NIL agreements as part of recruiting student-athletes, describing the rule as “an agreement [to] suppress[] price competition by limiting negotiating leverage and, as a result, knowledge of value” of the kind found to be “anticompetitive ‘[o]n its face[.]’”[180] In addition, the U.S. Department of Justice joined a lawsuit by several states seeking to enjoin enforcement of the NCAA’s restrictions on student athletes transferring between schools—rules that jeopardize the precious sports eligibility of transferring student athletes and that don’t apply to transferring non-athlete students.[181]
B. Approaching the Court’s Concerns in Alston
In upholding an injunction against the NCAA’s rules in Alston, the Court noted, “individual conferences remain free to reimpose every single enjoined restraint tomorrow—or more restrictive ones still.”[182] Consider the logical end state of the current trend of conference consolidation where only two “super conferences” remain: for instance, the “Super Big Ten” and “Super SEC.”[183] Another consolidation would effectively replicate the NCAA itself, but even in the two-conference scenario, the Court’s suggestion that conferences may impose the same rules starts to come into question. An elite prospective athlete unable to attend or uninterested in attending a Super SEC school would have to either: accept the Super Big Ten’s restrictions on compensation, which could very well depress potential compensation,[184] or play in a lower-tier conference.[185] The restrictions such super conferences would be able to impose in this scenario could rise to the level of triggering the Court’s holding in Alston, despite being imposed at the conference-level. If so, coordinated actions taken between member schools of such a conference would harm competition and represent undue restraints on competition.[186] There is already coordination between the conferences best positioned to become the super conferences, as the Big Ten and SEC have announced a partnership to cooperate on current challenges in colleges sports, including student athlete compensation.[187]
Seen as a step towards the hypothetical two-conference world introduced above, recent conference realignment is significant. It is significant in terms of the structure of Division I sports—as a “Power Five” conference vanishes—and for competitive implications—approaching what the Court recognized as anticompetitive harm in Alston and illustrated in the “super conference” example.[188] For instance, the Pac-12 has largely disintegrated, and its most competitive (or ambitious) schools (Oregon, Washington, UCLA, and USC) have agreed to join the Big Ten. When competing for students who will be subject to school- and conference-level compensation rules, conference member schools can be understood as individual members of a joint venture.[189] Where conferences have differentiated themselves to attract student athletes of all skill levels based on their scholarship and compensation policies,[190] that dynamic is diminished as the most competitive teams from the west coast (potentially another axis of differentiation) fall within the Big Ten and its control of student athlete compensation[191] In Alston, Division I was the relevant labor market for elite college athletics, but the relevant market today likely no longer includes the Pac-12, in whatever state it continues.[192] Moreover, the Big Ten and SEC’s announced partnership could undermine the NCAA’s position as the ultimate governing body of college sports, and with that shift, potentially define a new relevant market where the Big Ten and SEC dominate.[193]
V. Conclusion
Recent conference realignment raises multiple antitrust issues that will deserve close scrutiny in coming years. In particular, the effect of realignment on competition in the markets for broadcast rights and for student athletes’ services, and how they are connected, will become clearer: Consolidation in the pursuit of greater broadcast revenues makes it more likely that conferences will be able to suppress the “wages” of student athletes. In addition, as judicial deference to the procompetitive justifications the NCAA has relied on in its own antitrust challenges wanes, the antitrust laws may be a way to ensure those same procompetitive aspects of college athletics—its history, traditions, and the educational opportunities—are actually felt.
[1] 468 U.S. 85 (1984) [hereinafter NCAA v. Regents].
[2] 116 F. Supp. 319 (E.D. Pa. 1953).
[3] 15 U.S.C. § 1.
[4] 560 U.S. 183 (2010) [hereinafter Am. Needle].
[5] See id. at 202–04.
[6] 594 U.S. 69 (2021).
[7] See id. at 111 (2021) (Kavanaugh, J., concurring) (“[T]he NCAA and its member colleges maintain important traditions that have become part of the fabric of America—game days in Tuscaloosa and South Bend; the packed gyms in Storrs and Durham; the women’s and men’s lacrosse championships on Memorial Day weekend; track and field meets in Eugene; the spring softball and baseball World Series in Oklahoma City and Omaha; the list goes on.”).
[8] Kristi Dosh, Current College Sports Television Contracts, Bus. Coll. Sports (last visited May 7, 2024), https://businessofcollegesports.com/current-college-sports-television-contracts/ [https://perma.cc/L23V-3PNM]. Not all conferences have the same objectives. The Ivy League was formed in the 1950s with the objective that student athletes would “enjoy the game as participants in a form of recreational competition rather than as professional performers in public spectacles.” Steven C. Swett, Presidents Formally Accept New ‘Ivy Group’ Agreement, Harv. Crimson (Feb. 11, 1954), https://www.thecrimson.com/article/1954/2/11/presidents-formally-accept-new-ivy-group/ [https://perma.cc/85CC-NMAN].
[9] Id.
[10] Schools earn even splits with the exception of new conference members, which often earn reduced proceeds when they first join a conference and are scaled up to full membership benefits over time. Id.
[11] Id.
[12] Mark Herndon, Thursday Night Not Always Right for Football, Some SEC Coaches Say, AL.com (Sept. 15, 2011),
https://www.al.com/sports/2011/09/thursday_night_not_always_righ.html [https://perma.cc/64TT-6T9X].
[13] Kristi Dosh, College Football Playoff Payouts 2023-2024, Bus. Coll. Sports (last visited May 7, 2024), https://businessofcollegesports.com/college-football-playoff-payouts/ [https://perma.cc/JN5S-VHXS].
[14] An example “Grant of Rights” clause from the Atlantic Coast Conference, referring to the conference’s agreement with broadcaster ESPN, reads as follows: “Each of the Member Institutions hereby (a) irrevocably and exclusively grants to the Conference during the Term . . . all rights . . . necessary for the Conference to perform the contractual obligations of the Conference expressly set forth in the ESPN Agreement, regardless of whether such Member Institution remains a member of the Conference during the entirety of the Term and (b) agrees to satisfy and perform all contractual obligations of a Member Institution during the Term that-are expressly set forth in the ESPN Agreement.” William M. Sullivan, Jr. & Alex G. Anderson, When the Tigers Broke Free: A Primer on the Clemson/Atlantic Coast Conference Lawsuits, Pillsbury (Mar. 28, 2024), https://www.pillsburylaw.com/en/news-and-insights/clemson-acc-lawsuits.html#:~:text=Clemson’s%20lawsuit%20challenges%20two%20contractual,rights%20to%20the%20ACC%20as [https://perma.cc/C9YR-9V3R].
[15] Richard Sandomir, Notre Dame Scored a $38 Million Touchdown on Its TV Deal, N.Y. Times (Aug. 25, 1991), https://www.nytimes.com/1991/08/25/sports/college-football-notre-dame-scored-a-38-million-touchdown-on-its-tv-deal.html [https://perma.cc/E5CH-Z9JY].
[16] Id.
[17] Dosh, supra note 8.
[18] Popularity of college sports even impacts academic performance. See Laura Pappano, How Big-Time Sports Ate College Life, N.Y. Times (Jan. 20, 2012), https://www.nytimes.com/2012/01/22/education/edlife/how-big-time-sports-ate-college-life.html?pagewanted=all [https://perma.cc/3YUB-BYF2].
[19] Cf. United States v. Nat’l Football League, 116 F. Supp. 319, 325 (E.D. Pa. 1953) (“The competitive position of the weaker teams is improved by this increase in home attendance, while the competitive position of the stronger teams is weakened somewhat by their inability to sell to sponsors the right to televise their desirable head-on games into the home territories of the weaker teams when the weaker teams are playing at home.”).
[20] 468 U.S. 85 (1984).
[21] Id. at 103–05.
[22] Id.
[23] See generally Keith Dunnavant, The Fifty-Year Seduction: How Television Manipulated College Football, from the Birth of the Modern NCAA to the Creation of the BCS (2004) (chronicling the influence of television in the emergence of the popularity of college sports and the business it has become).
[24] Steve Berkowitz & Kirk Bohls, Texas, Oklahoma Were to Pay a Steep Price for Leaving Big 12 Early. That’s Not How It Turned Out, USA Today (Sept. 22, 2023),
https://www.usatoday.com/story/sports/ncaaf/big12/2023/09/22/texas-oklahoma-big-12-sec-espn-role-realignment/70910157007/ [https://perma.cc/53LW-RYSZ].
[25] Kate Windham, Texas, Oklahoma Joining the SEC in 2024, Sports Illustrated (Feb. 9, 2023), https://www.si.com/college/alabama/bamacentral/texas-oklahoma-joining-the-sec-in-2024 [https://perma.cc/T8UM-G9W5]; see also Brent Schrotenboer, Who’s to Blame for College Football Conference Realignment Chaos? Here are Top Candidates. USA Today (Aug. 10, 2023), https://www.usatoday.com/story/sports/ncaaf/2023/08/10/big-ten-big-12-pac-12-college-football-conference-realignment/70559721007/ [https://perma.cc/B9SS-CXZF].
[26] Id.
[27] See Berkowitz & Bohls, supra note 24.
[28] College Football Conference Realignment Tracker: Remaining Questions, Next Steps After Latest Shake-Up, ESPN (Nov. 11, 2021), https://www.espn.com/college-football/story/_/id/32465132/college-football-conference-realignment-tracker-remaining-questions-next-steps-latest-shake-up [https://perma.cc/ZF3G-RK5C].
[29] See Windham, supra note 25.
[30] Kevin Borba, Looking Back at the Pac-12’s Failed Alliance with the ACC and Big Ten, Sports Illustrated (Aug. 24, 2023), https://www.si.com/college/utah/football/looking-back-at-the-pac-12s-failed-alliance-with-the-acc-and-big-ten [https://perma.cc/PLL7-FP8A].
[31] UCLA to Join Big Ten Conference at Start of 2024–25 Season, UCLA Bruins (June 30, 2022), https://uclabruins.com/news/2022/6/30/bruin-athletics-ucla-to-join-big-ten-conference-at-start-of-2024-25-season [https://perma.cc/DQG3-6Q3Z]; USC to Make Historic Move to Big Ten Conference in 2024, USC Trojans (June 30, 2022), https://usctrojans.com/news/2022/6/30/usc-to-make-historic-move-to-big-ten-conference-in-2024.aspx [https://perma.cc/7UJ6-Y7Y2].
[32] Max Olson, Colorado Plans to Join Big 12 in 2024: What’s Next for the Pac-12, Conference Realignment?, Athletic (July 27, 2023), https://theathletic.com/4726720/2023/07/27/colorado-leaves-pac-12-joins-big-12-2024/ [https://perma.cc/3JJ8-U5X5].
[33] Big 12 Conference Adds Arizona, Arizona State and Utah, Big 12 (Aug. 4, 2023), https://big12sports.com/news/2023/8/4/big-12-conference-adds-arizona-state-arizona-and-utah.aspx [https://perma.cc/L6VH-BUUM].
[34] Pete Thamel, Oregon, Washington Officially Leave Pac-12 for Big Ten, ESPN (Aug. 4, 2023), https://www.espn.com/college-sports/story/_/id/38134021/oregon-washington-officially-leave-pac-12-big-ten [https://perma.cc/SL6S-9LRC].
[35] Emily Harris, No Love for the Oregon Ducks’ Move to the Big Ten, Axios (Aug. 17, 2023), https://www.axios.com/local/portland/2023/08/17/unhappy-reactions-oregon-ducks-big-ten-osu-uo-pac-12 [https://perma.cc/DH5Z-SWFX].
[36] Richard Johnson, For Non-Football Athletes, a Move From Pac-12 to Big Ten Isn’t Necessarily Rosy, Sports Illustrated (Aug. 12, 2023), https://www.si.com/college/2023/08/12/oregon-washington-pac-12-to-big-ten-softball-impact [https://perma.cc/6WYR-WRH9].
[37] Thamel, supra note 34.
[38] College Football Season Approaching, ABC News (Aug. 9, 2023), https://abcnews.go.com/US/video/college-football-season-approaching-102131569 [https://perma.cc/6U6V-AHMH] (video).
[39] Daniel Chavkin, Nebraska AD Trev Alberts Warns Next Conference Moves Will Be ‘Far More Disruptive’, Sports Illustrated (Aug. 15, 2023), https://www.si.com/college/2023/08/15/nebraska-trev-alberts-warns-conference-realignment-future-disruptive [https://perma.cc/8XZY-VMFE].
[40] Jeremy Cluff, Pac-12 Has Been ‘Fractured’ by Big Ten, Big 12 Conference Realignment, Expansion Chatter, AZ Central (July 28, 2022), https://www.azcentral.com/story/sports/college/pac-12/2022/07/28/pac-12-fractured-big-ten-big-12-conference-realignment-expansion/10178942002/ [https://perma.cc/G7DD-82JS].
[41] Nicole Auerbach, ACC Realignment Rumblings: 7 Schools Are Examining the Grant of Rights. But Can They Leave?, Athletic (May 15, 2023), https://theathletic.com/4521787/2023/05/15/acc-realignment-grant-of-rights/ [https://perma.cc/LR4W-YXB8].
[42] Ty Duffy, Cable TV is Dead. That’s Why the Next Round of College Football Realignment Could Look More Like the NFL, Saturday Down S. (2017), https://www.saturdaydownsouth.com/sec-football/next-round-college-football-realignment-look-like-nfl/ [https://perma.cc/43UG-GNDK].
[43] Jacob Lev & Homero De la Fuente, 5 Universities Announce Departure from Pac-12 Conference on Friday, Leaving Its Future in Question, CNN (Aug. 4, 2023), https://www.cnn.com/2023/08/04/sport/oregon-washington-big-ten/index.html [https://perma.cc/3F2H-H9BJ].
[44] University of Oregon to Join Big Ten Conference in 2024, Univ. Ore. (Aug. 4, 2023), https://uonews.uoregon.edu/university-oregon-join-big-ten-conference-2024 [https://perma.cc/3NDV-VZDL].
[45] University of Washington Will Join the Big Ten Conference In 2024, Go Huskies (Aug. 4, 2023), https://gohuskies.com/news/2023/8/4/general-university-of-washington-will-join-the-big-ten-conference-in-2024.aspx [https://perma.cc/8PNE-F36E] (emphasis added).
[46] Sullivan & Anderson, supra note 14.
[47] Id.
[48] Doric Sam, SEC, Big Ten Would’ve Left CFP If New Contract Wasn’t Reached, Say Sankey and Petitti, Bleacher Rep. (Apr. 22, 2022), https://bleacherreport.com/articles/10118001-sec-big-ten-wouldve-left-cfp-if-new-contract-wasnt-reached-say-sankey-and-petitti [https://perma.cc/UL3W-A2ZT].
[49] Sullivan & Anderson, supra note 14.
[50] Id.
[51] See id.
[52] Matt Audilet, SEC, Big Ten Announce Groundbreaking Partnership Before 2024 Season, Athlon Sports (Feb 2, 2024), https://athlonsports.com/college-football/sec-big-ten-announce-groundbreaking-partnership-before-2024-season [https://perma.cc/34VN-H3RX].
[53] US to Scrutinize Disney, Fox, Warner Sports Streaming Deal, Bloomberg Law Reports, Reuters (Feb. 15, 2024), https://www.reuters.com/business/media-telecom/doj-scrutinize-disney-fox-warner-bros-sports-streaming-deal-bloomberg-law-2024-02-15/ [https://perma.cc/6M9Q-F9MF].
[54] Scharon Harding, Does Fubo’s Antitrust Lawsuit Against ESPN, Fox, and WBD Stand a Chance?, Ars Technica (Feb. 22, 2024), https://arstechnica.com/tech-policy/2024/02/does-fubos-antitrust-lawsuit-against-espn-fox-and-wbd-stand-a-chance/ [https://perma.cc/F8A2-9KNE].
[55] Stewart Mandel, A 14-Team Field . . . Already? CFP Is Fixing Something That Isn’t Broken, Athletic (Feb. 21, 2024), https://theathletic.com/5291518/2024/02/21/college-football-playoff-expansion-mandel/?source=pulsenewsletter&campaign=9055739&userId=14866691 [https://perma.cc/VQM6-VP4V].
[56] Cf. Levin v. Nat’l Basketball Ass’n, 385 F. Supp. 149, 152 (S.D.N.Y. 1974) (noting “joint venture” characteristics of the NBA supporting the production of its sports product); S.F. Seals v. Nat’l Hockey League, 379 F. Supp. 966, 969 (C.D. Cal. 1974) (same, for the NHL).
[57] See, e.g., Jones v. Nat’l Collegiate Athletic Ass’n, 392 F. Supp. 295, 304 (D. Mass. 1975) (upholding NCAA eligibility rule that prevented hockey player who had previously been compensated for playing hockey from participating in intercollegiate hockey because it “implement[ed] the [NCAA] basic principles of amateurism”).
[58] Cf. Nat’l Collegiate Athletic Ass’n v. Alston, 594 U.S. 69, 112 (2021) (Kavanaugh, J., concurring) (“[T]raditions alone cannot justify the NCAA’s decision to build a massive money-raising enterprise on the backs of student athletes who are not fairly compensated.”).
[59] See Andrew Holleran, Big Ten Could Ultimately Force Notre Dame to Join Conference, Spun (Aug. 20, 2023), https://thespun.com/college-football/big-ten-could-ultimately-force-notre-dame-to-join-conference [https://perma.cc/4U4Q-WE8G] (suggesting the Big Ten could coerce Notre Dame to join or stop it from joining another conference by refusing to schedule games against its premiere teams, which Notre Dame regularly plays now).
[60] NCAA v. Regents, 468 U.S. at 118 (“Our decision not to apply a per se rule to this case rests in large part on our recognition that a certain degree of cooperation is necessary if the type of competition that petitioner and its member institutions seek to market is to be preserved.”).
[61] Ohio v. Am. Express Co., 585 U.S. 529, 541 (2018).
[62] Id.
[63] Id.
[64] Fed. Trade Comm’n v. Ind. Fed’n Dentists, 476 U.S. 447, 460 (1986).
[65] Tops Mkts., Inc. v. Quality Mkts, Inc., 142 F.3d 90, 97 (2d Cir. 1998).
[66] See In re Nat’l Football League’s Sunday Ticket Antitrust Litig., 933 F.3d 1136, 1152 (9th Cir. 2019) (citing NCAA v. Regents, 468 U.S. at 103–04) (stating in the context of sports leagues, a “holistic look” is necessary—the court’s analysis of the NFL’s agreement with DirecTV was not to be limited to seeing it as an exclusive distribution agreement of the type that is presumptively legal, to the exclusion of the agreement’s effects together with the vertical component).
[67] See Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 338 (2d Cir. 2008) (Sotomayor, J., concurring).
[68] See Broad. Music, Inc. v. Columbia Broad. Sys., Inc., 441 U.S. 1, 23 (1979) [hereinafter BMI].
[69] See, e.g., Polk Bros., Inc. v. Forest City Enters., Inc., 776 F.2d 185, 188–89 (7th Cir. 1985) (finding noncompetition covenant between appliance dealer and building products dealer housed in the same building violated the antitrust laws).
[70] See Salvino, 542 F.2d at 338–39 (Sotomayor, J., concurring) (collecting cases); see also Osborn v. Visa Inc., 797 F.3d 1057, 1066 (D.C. Cir. 2015) (emphasizing that the focus of a rule of reason analysis, applying Am. Needle, is on how a joint venture functionally operates rather than on formal legal structures); Eastman Kodak Co. v. Image Technical Services, Inc., 504 U.S. 451, 466–467 (1992) (same).
[71] Laumann v. Nat’l Hockey League, 907 F. Supp. 2d 465, 488 (S.D.N.Y. 2012).
[72] See NCAA v. Regents, 468 U.S. at 101 (quoting Robert H. Bork, The Antitrust Paradox: A Policy at War With Itself 278 (1978)).
[73] See In re Nat’l Football League’s Sunday Ticket Antitrust Litig., 933 F.3d 1136, 1154–55 (9th Cir. 2019), cert. denied sub nom. Nat’l Football League v. Ninth Inning, Inc., 141 S. Ct. 56 (2020) [hereinafter DirecTV] (“[W]e reject defendants’ argument that the complaint fails to allege a Section 1 violation because the telecasts can be created only through cooperation among competitors.”).
[74] Cf. Pittsburgh Athletic Co. v. KQV Broad. Co., 24 F. Supp. 490, 492 (W.D. Pa. 1938) (rooting a team’s rights to broadcast its home games in the common law to hold that the Pittsburgh Athletic Company, owner of the Pittsburgh Pirates, could grant “the exclusive right to broadcast, play-by-play, descriptions or accounts of the games played by the ‘Pirates’ at this and other fields”), accord DirecTV, 933 F.3d at 1136, 1154.
[75] Cf. DirecTV, 933 F.3d at 1136, 1154.
[76] See id. at 1153.
[77] Stephen F. Ross & Stefan Szymanski, Antitrust and Inefficient Joint Ventures: Why Sports Leagues Should Look More Like McDonald’s and Less Like the United Nations, 16 Marq. Sports L. Rev. 213 (2006) (clarifying that once the rights transfers are made, the sale of the collective rights is no longer a collective action, although it could have anticompetitive effects in another market).
[78] See 468 U.S at 101–02. Acceptance of rules on competitive balance in sports is a break from what courts have found anticompetitive outside the professional sports context. See Michael A. McCann, American Needle v. NFL: An Opportunity to Reshape Sports Law, 119 Yale L.J. 726, 741 (2010).
[79] NCAA v. Regents, 468 U.S. at 101–02.
[80] See McCormack v. Nat’l Collegiate Athletic Ass’n, 845 F.2d 1338, 1343 (5th Cir. 1988) (citing Justice v. Nat’l Collegiate Athletic Ass’n, 577 F. Supp. 356, 383 (D. Ariz. 1983); Jones v. Nat’l Collegiate Athletic Ass’n, 392 F. Supp. 295, 303 (D. Mass. 1975)); Hennessey v. Nat’l Collegiate Athletic Ass’n, 564 F.2d 1136, 1152 (5th Cir. 1977) (finding limiting the number of assistant coaches who may be employed at any one time by the institutions was not a per se violation of the antitrust laws). But see Nat’l Collegiate Athletic Ass’n v. Alston, 594 U.S. 69, 112 (2021) (Kavanaugh, J., concurring) (“Nowhere else in America can businesses get away with agreeing not to pay their workers a fair market rate on the theory that their product is defined by not paying their workers a fair market rate.”).
[81] See NCAA v. Regents, 468 U.S. at 85, 104–07; see DirecTV, 933 F.3d at 1136, 1158.
[82] Reiter v. Sonotone Corp., 442 U.S. 330, 343 (1979).
[83] Laumann v. Nat’l Hockey League, 907 F. Supp. 2d 465, 488–89 (S.D.N.Y. 2012) (quoting NCAA v. Regents, 468 U.S. at 108); cf. Driskill v. Dallas Cowboys Football Club, Inc., 498 F.2d 321, 323 (5th Cir. 1974) (rejecting a claim that the Dallas Cowboys—a single team—had unlawfully tied the sale of undesirable preseason tickets to the sale of season ticket packages because the Cowboys had a lawful monopoly in the market for the tied product—i.e., preseason tickets for its own games).
[84] NCAA v. Regents, 468 U.S. at 106 n.30 (quoting the district court).
[85] Id. at 114 n.53 (quoting the district court).
[86] Nathaniel Grow, Regulating Professional Sports Leagues, 72 Wash. & Lee L. Rev. 573, 617 (2015) (“With conferences and teams now free to sign their own deals, the number of televised college football games grew exponentially. . . . [B]roadcasters collectively paid half as much for the rights to televise a larger number of games than the NCAA had previously received for its collective package.”).
[87] See discussion infra Section III.B.3.
[88] See McCann, supra note 78, at 731–32 (describing efforts by Commissioner Pete Rozelle (1960-1989) to convince NFL owners to consent to pooling broadcast rights and receive equal shares of the resulting contracts).
[89] See Ariel Y. Bublick, Note, Are You Ready for Some Football?, 64 Fed. Comm. L.J. 223, 231, 234–36 (2011).
[90] Cf. U.S. Football League, 842 F.2d at 1346 (describing the initial stages of the NFL’s pooling of teams’ rights). Notre Dame’s independence shows this is possible.
[91] See Drew Nathanson, The NFL-Amazon Agreement vs. Antitrust Legislation: The Future of The National Football League in OTT Services, Am. Bar Ass’n. (Apr. 28, 2023), https://www.americanbar.org/groups/entertainment_sports/publications/entertainment-sports-lawyer/esl-39-01-spring-23/the-nflamazon-agreement-vs-antitrust-legislation-future-the-national-football-league-ott-services/#79 [https://perma.cc/6NMJ-7BDQ] (n.79).
[92] See, e.g., Cal. Dental Ass’n v. Fed. Trade Comm’n, 526 U.S. 756, 777 (1999) (“‘If firms raise price, the market’s demand for their product will fall, so the amount supplied will fall too—in other words, output will be restricted.”’) (quoting Gen. Leaseways, Inc. v. Nat’l Truck Leasing Ass’n, 744 F.2d 588, 594–95 (7th Cir. 1984)).
[93] Cf. Stephen F. Ross, An Antitrust Analysis of Sports League Contracts with Cable Networks, 39 Emory L.J. 463, 481 (1990) (discussing the NFL, noting “[f]or example, shifting post-season games or Sunday afternoon football games to cable would reduce viewership because, for the foreseeable future, it appears that the over-the-air networks are very interested in broadcasting these games.”); Einer R. Elhauge, Defining Better Monopolization Standards, 56 Stan. L. Rev. 253, 338 (2003) (clarifying that “the correct baseline to determine whether exclusionary conduct causes an increase in monopoly power is not how high prices, profits, or shares were in the past,” but rather without the anticompetitive conduct).
[94] See 468 U.S. at 104, 107. That restriction actually did limit the number of games, but viewership is the relevant metric. See id. at 99. See generally Starr v. Sony BMG Music Ent., 592 F.3d 314 (2d Cir. 2010); In re Elec. Books Antitrust Litig., 859 F. Supp. 2d 671 (S.D.N.Y. 2012). Of course, broadcasting fewer games would reduce viewership, but it is the viewership that matters.
[95] 468 U.S. at 105 n.30.
[96] Cf. id. (“NCAA has created the mechanism which produces a uniform price for each national telecast, and a uniform price for each regional telecast. Because of the NCAA controls, the price which is paid for the right to televise any particular game is responsive neither to the relative quality of the teams playing the game nor to viewer preference.” (emphasis added)).
[97] In Laumann v. Nat’l Hockey League, plaintiffs alleged an injury to competition from the NHL’s and MLB’s practices that “forc[ed] . . . consumers to forego the purchase of [games] from other distributors,” such as the individual clubs, thereby decreasing consumer choice and increased price. 907 F. Supp. 2d 465, 490–91 (S.D.N.Y. 2012). Even though the out-of-market packages made possible by the Leagues’ pooling of rights could have conceivably increased output by making out-of-market games available where they hadn’t been before, this did not “as a matter of law, eliminate the harm to competition wrought by preventing the individual teams from competing to sell their games outside their home territories in the first place.” Id. at 491; cf. BMI, 441 U.S. at 23–24 (considering “blanket licenses” for radio that created a product no individual could provide).
[98] Average Nielsen viewership for Power Five conference schools, plus Notre Dame, that averaged at least 1 million viewers per game. Brett McMurphy, Which College Football Program is the Most Valuable? Breaking Down the Nielsen Ratings, Action Network (Dec. 19, 2023), https://www.actionnetwork.com/ncaaf/college-football-programs-nielsen-ratings [https://perma.cc/KX8Q-362J]. Note that Pac-12 viewership in 2023 was skewed by hype surrounding Colorado during Deion Sanders’ first year as the head coach. In addition, ACC and Pac-12 viewership is likely lower, because ACC Network and Pac-12 Network games were not counted and these games had lower viewership—they were not on the major networks for a reason. Even Big Ten and SEC games with lower interest were still broadcast on major networks.
[99] Zach Barnett, The 50 Most-Watched Games of the 2023 College Football Regular Season, Football Scoop, (Dec. 6, 2023), https://footballscoop.com/news/the-50-most-watched-games-of-the-2023-college-football-regular-season [https://perma.cc/93MT-8FEX].
[100] See NCAA v. Regents, 468 U.S. at 108.
[101] See id. at 106 n.30 (quoting lower court).
[102] Jon Loesche, Florida State’s Amended Lawsuit Shows University is Prepared to Break ACC in Fight for Survival, Tomahawk Nation (Feb. 1, 2024) (“The university views leaving the ACC, by any means necessary, as a must for the survival of Seminole football and the ability of its athletics to compete at the highest level.”)
[103] See Audilet, supra note 52.
[104] See, e.g., Mackey v. Nat’l Football League, 543 F.2d 606, 618–19 (8th Cir. 1976), cert. dism’d, 434 U.S. 801 (1977); Chi. Prof’l Sports Lim. P’ship v. Nat’l Basketball Ass’n, 961 F.2d 667 (7th Cir. 1992).
[105] See NCAA v. Regents, 468 U.S. at 104 n.28.
[106] 15 U.S.C. § 1291 (emphasis added).
[107] 116 F. Supp. 319 (E.D. Pa. 1953).
[108] Id. at 321–22.
[109] Id.
[110] Id. at 327.
[111] McCann, supra note 78, at 749.
[112] See id.; Shaw v. Dallas Cowboys Football Club, Ltd., 172 F.3d 299, 301 (3d Cir. 1999).
[113] See NCAA v. Regents, 468 U.S. at 104, 104 n.28 (emphasis added) (citing Sports Broadcasting Act, 15 U.S.C. §§ 1291–1295).
[114] See id. (collecting legislative history of the SBA).
[115] See U.S. Football League v. Nat’l Football League, 842 F.2d 1335, 1347 (2d Cir. 1988) (“In order to protect college games from competition with pro football telecasts, the exemption did not apply to the broadcast of professional football games on Friday nights and Saturdays during the college football season.” (citing 15 U.S.C. § 1293 (1982))); see also Union Lab. Life Ins. Co. v. Pireno, 458 U.S. 119, 126 (1982) (holding that exceptions to the antitrust laws are narrowly construed, as they circumvent Congress’s commitment to open competition).
[116] 172 F.3d 299 (3d Cir. 1999).
[117] Id. at 301.
[118] Id. at 300.
[119] Id. at 301.
[120] Id.
[121] See id. (“The broadcast rights sold to sponsored telecasters do not subsume the separate broadcast rights sold to a non-sponsored medium”); see also id. at 302 (“the NFL Commissioner acknowledged ‘absolutely’ under oath his understanding that the bill “covers only the free telecasting of professional sports contests, and does not cover pay T.V.”).
[122] See id. at 301 n.9 (“The NFL attaches great significance to the fact that the satellite broadcasts utilize the same images as the sponsored telecasts, . . . . Rather, [the exemption] is predicated on the “sponsored telecast” of the image, i.e., its transmission in a form freely receivable by the public” (emphasis in original)); see also id. at 302 (“[T]o hold otherwise . . . would allow the exception to swallow the rule: a sponsored telecast to a limited geographic area would secure an antitrust law exemption for nationwide sales.”)
[123] See, e.g., U.S. Football League v. Nat’l Football League, 842 F.2d 1335, 1346–47 (2d Cir. 1988) (discussing history of NFL broadcast deals in context of history of SBA).
[124] Cf. Shaw, 172 F.3d at 302.
[126] 594 U.S. 69 (2021).
[127] Smith v. Pro Football, Inc., 593 F.2d 1173, 1179 (D.C. Cir. 1978) (“[O]nly if the teams are ‘competitively balanced’ will spectator interest be maintained at a high pitch. No NFL team, in short, is interested in driving another team out of business, whether in the counting-house or on the football field, for if the League fails, no one team can survive.”).
[128] See In re Nat’l Collegiate Athletic Ass’n Athletic Grant-in-Aid Cap Antitrust Litig., 958 F.3d 1239, 1270 (9th Cir. 2020), aff’d sub nom. Nat’l Collegiate Athletic Ass’n v. Alston, 594 U.S. 69 (2021) (internal quotations omitted) (quoting Smith, 593 F.2d at 1186) (Smith, J., concurring).
[129] See Smith, 593 F.2d at 1183–85.
[130] See id. (“The draft, indeed, is designed not to insulate the NFL from competition, but to improve the entertainment product by enhancing its teams’ competitive equality.”).
[131] Id. at 1185.
[132] See NCAA v. Regents, 468 U.S. at 117–18 (recognizing the legitimacy of maintaining “competitive balance among amateur athletic teams,” but rejecting it as a justification for the NCAA-wide output restrictions, specifically noting “the NCAA does not claim that its television plan has equalized or is intended to equalize competition within any one league”).
[133] Cf. id. at 118 n.62 (“It seems unlikely, for example, that there would have been a greater disparity between the football prowess of Ohio State University and that of Northwestern University in recent years without the NCAA’s television plan.” (emphasis added)). That was in 1984, but the gap between Northwestern and Ohio State football is as healthy as ever despite equal shares of conference broadcast revenue.
[134] Cf. Smith, 593 F.2d at 1185 (“suppressing competition [is] the very essence of the restraint”).
[135] See 468 U.S. at 117–18.
[136] See Nat’l Soc’y Pro. Eng’rs v. United States, 435 U.S. 679, 696 (1978) (cleaned up).
[137] McCann, supra note 78, at 741.
[138] See id. (quoting Local Union No. 189, Amalgamated Meat Cutters v. Jewel Tea Co., 381 U.S. 676, 689 (1965)).
[139] See Matt Ford, The NCAA’s Plot to Protect Its Riches from Labor Unions, New Republic (Oct. 24, 2023), https://newrepublic.com/article/176393/congress-ncaa-college-athlete-unions [https://perma.cc/Q27P-43NB].
[140] Michael McCann, College Athletes as Employees: Answering 25 Key Questions, Sportico (Dec. 19, 2023), https://www.sportico.com/feature/college-athletes-employees-complete-primer-1234758491/ [https://perma.cc/9FB7-ELZU] (discussing Johnson v. NCAA, a lawsuit seeking a finding that student athletes are employees under the Fair Labor Standards Act); see also In re College Athlete NIL Litigation, No. 20-CV-03919, 2023 WL 8372787 (N.D. Cal. Nov. 3, 2023) (certifying damages classes in suit claiming student athletes are entitled to portions of broadcast revenues for their games).
[141] Ironically, extending employee status to student athletes would be a way for the NCAA to put in place the same rules through collective bargaining that have been found to be illegal when imposed directly. Nat’l Collegiate Athletic Ass’n v. Alston, 594 U.S. 69, 89–90 (2021).
[142] See NCAA v. Regents, 468 U.S. at 114–15 (“it cannot be said that ‘the agreement on price is necessary to market the product at all.’” (quoting BMI, 441 U.S. at 23)).
[143] See discussion supra Section II.A.
[144] NCAA v. Regents, 468 U.S. at 103 (citing BMI, 441 U.S. at 18–23) (“[BMI] squarely holds that a joint selling arrangement may be so efficient that it will increase sellers’ aggregate output and thus be procompetitive.”).
[145] See David H. Marks & Jonathan M. Jacobson, Price Fixing: An Overview, 30 Antitrust Bull. 199, 199 (1985) (discussing BMI, noting “not all price-fixing arrangements are considered ‘price fixing’”).
[146] Am. Needle, 560 U.S. at 198–200.
[147] Compare BMI, 441 U.S. at 23–24 (“Joint ventures and other cooperative arrangements are also not usually unlawful, at least not as price-fixing schemes, where the agreement on price is necessary to market the product at all. . . . The District Court found that there was no legal, practical, or conspiratorial impediment to CBS’s obtaining individual licenses; CBS, in short, had a real choice.”), with NCAA v. Regents, 468 U.S at 115 (“Neither is the NCAA’s television plan necessary to enable the NCAA to penetrate the market through an attractive package sale. Since broadcasting rights to college football constitute a unique product for which there is no ready substitute, there is no need for collective action in order to enable the product to compete against its nonexistent competitors.”).
[148] See NCAA v. Regents, 468 U.S. at 103; Major League Baseball Properties, Inc. v. Salvino, Inc., 542 F.3d 290, 335 (2d Cir. 2008) (Sotomayor, J., concurring) (arguing for a limit to joint ventures’ immunity under Section 1, lest any cartel “evade the antitrust laws simply by creating a ‘joint venture’ to serve as the exclusive seller of their competing products”).
[149] Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752 (1984) (recognizing that a “single entity,” defined by unity of interests and common control, is not subject to Section 1 of the Sherman Act because it cannot conspire with itself).
[150] See 560 U.S. 183, 204 (2010).
[151] Id.
[152] NCAA v. Regents, 468 U.S. at 105; see id. at 106 (“The anticompetitive consequences of this arrangement are apparent.”).
[153] Cf. Am. Needle, 560 U.S. at 204 (“Other features of the NFL may also save agreements amongst the teams. . . . While that same interest [recognized in NCAA v. Regents] applies to the teams in the NFL, it does not justify treating them as a single entity for [Sherman Act Section 1] purposes when it comes to the marketing of the teams individually owned intellectual property.”); see also id. at 187 (“Prior to 1963, the teams made their own arrangements for licensing their intellectual property.”).
[154] See id. at 109 n.39 (arguing that while “joint buying and selling agreements are not unlawful per se,” the scale and capacities of the parties to such an agreement changes the analysis; remarking that a distribution agreement between “Ford and General Motors” would easily be found unreasonable because it would “eliminate important price competition between them, [and] they are quite substantial enough to distribute their products independently”); see also id. at 113 (suggesting that if that NCAA had been a “selling agent,” that would have changed the Court’s analysis, since such a practice does “eliminate individual sales of broadcasts”).
[155] 15 U.S. Code § 18. See generally Brown Shoe Co. v. United States, 370 U.S. 294, 312–323 (1962) (presenting legislative history of Clayton Act).
[156] From the Pac-12, 4 schools went to the Big Ten, 4 schools went to the Big 12, 2 schools went to the ACC, and 2 remained.
[157] See Tables 1 & 2 supra Subsection III.B.2.
[158] Viewership of the minor conferences, the “Group of Five,” is much lower. See McMurphy, supra note 99.
[159] Brown Shoe, 370 U.S. at 335; accord United States v. Gen. Dynamics Corp., 415 U.S. 486, 496 (1974).
[160] 374 U.S. 321, 364 (1963) (“Without attempting to specify the smallest market share which would still be considered to threaten undue concentration, we are clear that 30% presents that threat.”).
[161] Brown Shoe, 370 U.S. at 345 (“One such factor is the history of tendency toward concentration in the industry.).
[162] See United States v. Von’s Grocery Co., 384 U.S. 270, 280–81 (1966) (White, J., concurring) (recounting changes in market shares following merger, where top four firms gained ~4.4%, top eight gained ~3.1%, and top 12 gained ~1.2%); Brown Shoe, 370 U.S. at 345 (affirming district court’s halting of merger that would give acquiring firm “7.2% of the Nation’s retail ‘shoe stores’”)
[163] The Pac-12 Conference was not a “failing firm,” for instance.
[164] Cf. Fed. Trade Comm’n v. Butterworth Health Corp., 946 F. Supp. 1285, 1300–01 (W.D. Mich. 1996), aff’d 121 F.3d 708 (6th Cir. 1997).
[165] 594 U.S. 69 (2021).
[166] See id. at 104.
[167] Id. at 104–05 (unanimous decision).
[168] See NCAA v. Regents, 468 U.S. at 101–02.
[169] Alston, 594 U.S. at 80–81 (internal quotations removed) (“NCAA’s Division I essentially is the relevant market for elite college football and basketball”) (quoting In re Nat’l Collegiate Athletic Ass’n Athletic Grant-in-Aid Cap Antitrust Litig., 375 F. Supp. 3d 1058, 1067, 1070 (N.D. Cal. 2019)).
[170] See id. (“[T]he NCAA and its member schools have the ‘power to restrain student-athlete compensation in any way and at any time they wish, without any meaningful risk of diminishing their market dominance.’”).
[171] See NCAA v. Regents, 468 U.S. at 101–02 (“In order to preserve the character and quality of the ‘product,’ athletes must not be paid, must be required to attend class, and the like.”).
[172] See Alston, 594 U.S. at 90 (“Without some agreement among rivals—on things like how many players may be on the field or the time allotted for play—the very competitions that consumers value would not be possible. . . . That some restraints are necessary to create or maintain a league sport does not mean all “aspects of elaborate interleague cooperation are.”).
[173] Cf. id. (“Unlike customers who would look elsewhere when a small van company raises its prices above market levels, the district court found[,] . . . student-athletes have nowhere else to sell their labor.”).
[174] Cf. NCAA v. Regents, 468 U.S. at 117 (“[M]ost of the regulatory controls of the NCAA are justifiable means of fostering competition among amateur athletic teams and therefore procompetitive because they enhance public interest in intercollegiate athletics.”).
[175] Alston, 594 U.S. at 82 (“NCAA’s only remaining defense was that its rules preserve amateurism”); NCAA v. Regents, 469 U.S. at 120 (“The NCAA plays a critical role in the maintenance of a revered tradition of amateurism in college sports.”).
[176] Alston, 594 U.S. at 92 (“[NCAA v. Regents] may suggest that courts should take care when assessing the NCAA’s restraints on student-athlete compensation, sensitive to their procompetitive possibilities. But these remarks do not suggest that courts must reflexively reject all challenges to the NCAA’s compensation restrictions.”).
[177] Cf. id. at 110 (Kavanaugh, J., concurring) (“Movie studios cannot collude to slash benefits to camera crews to kindle a ‘spirit of amateurism’ in Hollywood.”).
[178] See id. at 93 (“Given the sensitivity of antitrust analysis to market realities—and how much has changed in this market—we think it would be particularly unwise to treat an aside in [NCAA v. Regents] as more than that.”).
[179] See Mike Scarcella, NCAA Hit with Lawsuit by Tennessee, Virginia Over Student Athlete Pay, Reuters (Jan. 31, 2024), https://www.reuters.com/legal/government/ncaa-hit-with-lawsuit-by-tennessee-virginia-over-student-athlete-pay-2024-01-31/ [https://perma.cc/29LR-VXYH] (emphasis added); see also Complaint, Tennessee & Virginia v. Nat’l Collegiate Athletic Ass’n, Case No. 3:24-cv-00033, Dkt. No. 1 (E.D. Tenn. Jan. 31, 2024).
[180] Tennessee v. Nat’l Collegiate Athletic Ass’n, No. 324CV00033, 2024 WL 755528, at *3 (E.D. Tenn. Feb. 23, 2024) (quoting Nat’l Soc. of Pro. Eng’rs v. United States, 435 U.S. 679, 692 (1978)) (some alterations in original).
[181] Amended Complaint for Injunctive Relief, Ohio et al. v. Nat’l Collegiate Athletic Ass’n, Case No. 1:23-cv-00100, Dkt. No. 79, at 3 (N.D.W. Va., Jan. 18, 2024) (“In the language of antitrust law, the Transfer Eligibility Rule is a no-poach agreement between horizontal competitor member schools that serves to allocate the market for the labor of NCAA Division I college athletes. . . . The fact that it was created under the auspices of the NCAA does not shield it from antitrust scrutiny.”).
[182] Nat’l Collegiate Athletic Ass’n v. Alston, 594 U.S. 69, 103 (2021).
[183] See Mark Salah Morgan & Michael Fialkoff, College ‘Super Conferences’ May Wind up on Defense with Antitrust Law, Sports Bus. J. (Sept. 7, 2022), https://www.sportsbusinessjournal.com/SB-Blogs/COVID19-OpEds/2022/09/07-MorganFialkoff.aspx [https://perma.cc/E4TA-SNTJ].
[184] Cf. Alston, 594 U.S. at 86 (“No one disputes that the NCAA’s restrictions in fact decrease the compensation that student-athletes receive compared to what a competitive market would yield.”).
[185] See Morgan & Fialkoff, supra note 183.
[186] Cf. Fed. Trade Comm’n v. Ind. Fed’n Dentists, 476 U.S. 447, 460–61 (1986) (citing NCAA v. Regents, 468 U.S. at 109–10) (“[S]ustained adverse effects on competition in those areas where IFD dentists predominated, . . . , is legally sufficient to support a finding that the challenged restraint was unreasonable even in the absence of elaborate market analysis.”)
[187] Audilet, supra note 52.
[188] See Amended Complaint for Declaratory Judgment at 1, Fla. St. Univ. v. Atl. Coast Conf., Case No. 23-CA-002860 (Fla. Cir. Ct. Jan. 19, 2024) (referring to “Power Four” conferences in lawsuit seeking to leave the ACC, relinquishing obligations to the conference).
[189] Cf. Chi. Pro. Sports, 95 F.3d at 600 (finding NBA is “best understood as a joint venture when curtailing competition for players who have few other market opportunities,” but cautioning “the ability of sports teams to agree on a TV contract need not imply an ability to set wages for players,” depending on market power).
[190] See Nat’l Collegiate Athletic Ass’n v. Alston, 594 U.S. 69, 93 (2021) (“[NCAA] has allowed the conferences flexibility to set new and higher limits on athletic scholarship.”).
[191] See id. at 103 (“injunction applies only to the NCAA and multiconference agreements” (emphasis added)).
[192] Id. at 80–81.
[193] Audilet, supra note 52.
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