May 21, 2015 5:46 PM
As NCAA fends off challenges, antitrust exemption debated
The Associated Press
For years there have been discussions within NCAA membership about seeking an antitrust exemption to provide protection from the types of lawsuits that are threatening to forcefully overhaul college sports.
As pressure from litigation and possible congressional intervention mounts, the idea of handing some control of college sports to the federal government in return for protection from antitrust law becomes more of a possibility.
"It's not my preferred path," Notre Dame athletic director Jack Swarbrick said. "I think it is increasingly an inevitable path."
Swarbrick was part of a panel of legal and college sports experts who tackled the prospect of an antitrust exemption for the NCAA early this week at a meeting of the Knight Commission on Intercollegiate Athletics in Washington.
The NCAA has no official position on whether to pursue an antitrust exemption.
"It's certainly the case that some people in the membership raise this as a question: Is this an avenue that needs to be pursued for college sports?" NCAA chief legal counsel Donald Remy said.
An antitrust ruling against the NCAA in the 1980s took college football's television rights away from the association and gave them to schools and conferences. The ruling led to the multibillion-dollar media rights deals that exist today.
Last year, the NCAA lost an antitrust case in which a federal judge said football and men's basketball players should be compensated for their names, images and likenesses. The NCAA is appealing the decision in the O'Bannon case.
Slowly working its way to trial is another antitrust lawsuit that argues athletic scholarships unlawfully cap player compensation. If the NCAA were to lose the so-called Jenkins case, experts say, it could be far more damaging than the O'Bannon ruling.
"This is something college sports is going to have to wrestle with and overcome," said Doug Allen, a professor of labor and employment relations at Penn State.
The Drake Group, a college sports watchdog group, has proposed the NCAA seek a limited antitrust exemption as a way to control lavish spending in college sports on things such as facilities and coach's salaries.
Brian Porto, a professor at Vermont Law School, said an antitrust exemption would allow college sports leaders to re-emphasize academics a goal being touted frequently these days.
"The antitrust laws are not in the business of achieving moral goods," said Porto, a member of the Drake Group. "But they are in the business of satisfying consumer preference. And therein lies the tension between the model of Division I college sports that we have, particularly in the revenue sports that have to care about consumer preference and the education of the participants."
The Drake Group has also proposed congressional legislation to create a President's Blue Ribbon Commission to study college sports. Rep. Bobby Rush, D-Ill., introduced a bill in congress earlier this year that would set up such a commission to examine issues such as how athletics are financed, health and safety protections and the recruitment and retention of athletes.
Under a plan put forth by Matt Mitten, the director of the National Sports Law Institute, a federal regulatory agency for college sports would be created but its proposals would not be mandatory. Those that were adopted by the NCAA would be exempt from antitrust laws.
"Piece-meal antitrust analysis is just not going to resolve these broader problems," Mitten said.
Ron Katz, chairman of the Santa Clara Institute of Sports Law and Ethics, agrees that major reforms are needed in college sports, starting with eliminating the term student-athlete.
"The problem with it is it implies equivalence between education and athletics. That equivalence should not exists," Katz said.
Katz does not believe antitrust exemption is a realistic solution for college sports as is.
"The idea of going to congress and trying to get an antitrust exemption for what is a huge commercial enterprise I think is a fool's errand," he said. "The U.S. Supreme Court has characterized the NCAA as a cartel. Cartels don't get antitrust exemptions. Educational institutions do."