NCAA and the Rule of Reason: Analyzing Improved Education Quality as a Procompetitive Justification

By Ginder, Cameron D. | William and Mary Law Review, November 2015 | Go to article overview

NCAA and the Rule of Reason: Analyzing Improved Education Quality as a Procompetitive Justification


Ginder, Cameron D., William and Mary Law Review


TABLE OF CONTENTS  INTRODUCTION I.   ANTITRUST FRAMEWORK AND THE NCAA      A. Antitrust Framework         1. Per Se Rule of Illegality         2. Rule of Reason Analysis         3. Rule of Reason Analysis and Joint Ventures      B. O'Bannon u. NCAA         1. Background         2. Relevant Portions of the O'Bannon Ruling         3. Improved Academic Quality II.  PROCOMPETITIVE BENEFIT ANALYSIS      A. Procompetitive Framework      B. Product Quality and National Society of Professional         Engineers      C. Engineers and Its Progeny III. PROCOMPETITIVE BENEFIT AND OBANNON      A. Why Academic Integration Is Not a Procompetitive         Justification      B. Brown University      C. Illusory Benefit CONCLUSION: THE NCAA MOVING FORWARD 

INTRODUCTION

In early August of 2013, Jay Bilas--ESPN basketball analyst, lawyer, and frequent National Collegiate Athletic Association (NCAA) critic--sent a series of tweets with pictures of screenshots from ShopNCAASports.com. (1) Bilas used the website's search function to look up the names of prominent NCAA Division I football players. For instance, Bilas searched "Clowney" and University of South Carolina football jerseys with the number seven appeared. (2) Number seven just happened to be star defensive end and future number one overall NFL draft pick, Jadeveon Clowney. (3) Bilas repeated the process using the names Johnny Manziel, Tajh Boyd, Teddy Bridgewater, Braxton Miller, Denard Robinson, Everett Golson, and Tyrann Mathieu. (4) Within minutes the NCAA removed the search function from the website.(5) Within days the entire ShopNCAASports.com website was shut down, later to be put back up selling only NCAA championship merchandise. (6) NCAA President Mark Emmert commented, saying, "In the national office, we can certainly recognize why [the sale of that merchandise] could be seen as hypocritical, and indeed I think the business of having the NCAA selling those kinds of goods is a mistake, and we're going to exit that business immediately." (7)

According to its own Division I Manual, the NCAA's Principle of Amateurism is that "[s]tudent-athletes shall be amateurs in an intercollegiate sport, and their participation should be motivated primarily by education and by the physical, mental, and social benefits to be derived. Student participation in intercollegiate athletics is an avocation, and student-athletes should be protected from exploitation by professional and commercial enterprises." (8) In contrast, the NCAA had nearly $871.6 million in total revenue for the fiscal year 2011-2012. (9) At the heart of the discrepancy between the NCAA's mission statement and its annual revenue is the debate about whether big-time collegiate athletes should be compensated for the use of their names, images, and likenesses. Legal academics (10) and the sports establishment have frequently advocated for compensating student-athletes, which would alter the current NCAA amateurism ideal. (11) That position has only increased in popularity as the NCAA's annual revenue continues to rise. (12) Bilas, in an interview after his Twitter rant, stated that there is a tension between the NCAA's amateurism model and the NCAA's current commercial model. (13) The NCAA is making money by licensing student-athletes' names, images, and likenesses, but restricting what the revenue drivers, the student-athletes, can make. (14)

Current NCAA bylaws restrict student-athletes from receiving any compensation from their school or outside sources for use of their names, images, or likenesses. (15) Schools are not permitted to give student-athletes financial aid in an amount greater than a full grant-in-aid. (16) Additionally, the NCAA prevents an athlete from receiving outside financial aid in an amount greater than the cost of attendance. (17)

The discussion about whether student-athletes should receive compensation for use of their names, images, and likenesses was thrust into the national spotlight following the United States District Court for the Northern District of California's ruling in O'Bannon v. …

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