Alabama football coach Nick Saban generated headlines Wednesday when he blasted Texas A&M for what Saban termed “buying” recruits through NIL deals. Saban also bemoaned NIL collectives, defended the NCAA from criticisms of passiveness by blaming “litigation,” and urged the federal government to provide an antitrust exemption.
Texas A&M coach Jimbo Fisher, who landed the top recruiting class, slammed the allegations as “despicable” and insisted, “We never bought anybody.”
The back-and-forth seemed to overlook several realities.
First, to the extent “litigation” is to blame for the NCAA’s inactive approach to NIL, remember the NCAA was the litigation’s defendant—and lost. In NCAA v. Alston, the U.S. Supreme held, 9-0, that the NCAA and its member schools violate antitrust law when they conspire to limit how much each can compensate athletes for academic-related costs. In other words, the NCAA’s rules were deemed illegal.
Meanwhile, Alston doesn’t prevent the NCAA from enforcing its NIL interim policy or its more recently issued NIL guidance. If the NCAA is concerned its rules might run afoul of federal antitrust law, state NIL statutes or other areas of law, it could revise those rules to comport with the law.
Indeed, most industries and businesses aren’t exempt from antitrust law, which is designed to protect consumers and ensure that competitors—including colleges—genuinely compete and not conspire.
This is true in sports.
MLB famously has an antitrust exemption that the Supreme Court created in 1922 but that Congress and President Bill Clinton narrowed substantially through the Curt Flood Act of 1998. In the decades that followed, courts rejected attempts to extend the exemption to other leagues. Through the Sports Broadcasting Act of 1961, pro baseball, football, basketball and hockey enjoy a limited antitrust exemption for national TV deals via “sponsored broadcasting,” meaning free, over-the-air games. However, given increased use of cable, satellite and streaming services for watching sports, the Sports Broadcasting Act’s relevance has waned. Congress granting the NCAA an antitrust exemption would buck historical trends.
The necessity of an antitrust exemption is also questionable since the NCAA would likely win most antitrust lawsuits. Antitrust defendants usually prevail, so long as their restrictions on competition are reasonable. In fact, empirical evidence indicates that the vast majority of antitrust plaintiffs lose.
The NCAA lost Alston partly because its rules on academic related expenses were inflexible and partly because those rules concerned academics—where colleges have a tradition of competing—rather than athletics. The NCAA and conferences have generally won antitrust lawsuits where the topic concerns restraints on athletic-related compensation. The NCAA has successfully argued the legality of capping the value and number of athletic scholarships and restricting the scheduling of competition. During the oral argument for Alston several justices openly worried about changing the character of college sports. In the Court’s written opinion, Justice Neil Gorsuch stressed the NCAA can adopt reasonable limitations–as he wrote, a “no Lamborghini rule” would easily satisfy antitrust law–and conferences are free to create their own rules.
Lastly, state NIL statutes, just like NCAA rules, make clear that NIL is not pay-for-play. Those statutes note that NIL deals can’t be used as recruitment inducements.
If Saban and other coaches believe the line between NIL and pay-for-play has become too hazy, they could urge the NCAA to change that by enforcing its own rules.