Calling Time

The Case for Ending Preferential Antitrust Treatment of NCAA Amateurism Rules After Alston

As part of its role as the governing body of collegiate athletics in the United States, the NCAA imposes rules that regulate both the behavior of its member-institutions and of college athletes themselves. Historically, courts have divided these rules into two groups: rules governing the commercial aspects of sport and rules that enforce the amateur nature of college athletics. Thus, rules concerning television-rights contracting are distinguished from those rules regulating the size of a soccer field or when a student-athlete is eligible to play. When NCAA rules have been challenged as violations of U.S. antitrust law, courts applying the standard rule-of-reason antitrust analysis have often found an anticompetitive effect. But where amateurism rules are concerned, a subset of circuit courts have withheld a rigorous application of the rule of reason and allowed NCAA regulations to stand under the “presumption of procompetitiveness” doctrine.

In May 2020, in Alston v. NCAA, the Ninth Circuit applied the rule of reason and struck down NCAA limits on athlete compensation through so-called “grant-in-aid,” the scholarship packages that colleges and universities provide to athletes. The United States Supreme Court affirmed the Ninth Circuit a year later, confirming its holding and underlying analytical framework. These decisions did not directly reach the presumption of procompetitiveness applied by the Seventh Circuit and other courts when reviewing NCAA amateurism rules. This Note, however, argues that the Supreme Court’s stated preference for applying the rule of reason, and the NCAA’s own slippery definition of “amateurism,” strongly suggest that the presumption of procompetitiveness mistakenly lowers the level of scrutiny that NCAA regulations receive from courts. This Note concludes that amateurism cannot justify a light-touch approach to any NCAA rules. Thus, conformity with the law, and fairness to the position of student-athletes, requires that all NCAA rules be examined under the traditional rule-of-reason framework.

a. J.D. Candidate, 2022, University of Illinois College of Law; B.A., 2017, Boston College. Sincere thanks to the members and editors of the University of Illinois Law Review for their professionalism and guidance in publishing this Note. Particular thanks to Ryan Wells and Randy Gerlach, who worked with me to develop and polish this piece.

The full text of this Note is available to download as a PDF.