As the Fair Pay to Play Act moves forward, the NCAA faces a Hobson’s choice: either capitulate and allow college athletes to sign at least a limited range of endorsement deals, or ban California member colleges and risk an antitrust lawsuit that could lead to the association’s annihilation.
, any attempt by the NCAA to attempt to ban member colleges that comply with California’s Fair Pay to Play Act would very likely be viewed more nefariously than other NCAA rules—perhaps as tantamount to an illegal form of wage fixing or an illegal group boycott.
Although the NCAA has long maintained internal rules to limit athletes’ financial freedom, even the NCAA’s Principle of Amateurism—a principle that at times has been afforded great deference from certain federal courts—almost certainly cannot trump free trade principles or government mandates.
If American legal history teaches us anything, it is that even the most powerful industries that have longed claimed special antitrust exemptions have ultimately found themselves subject to the inevitable reach of the Sherman Act. For example, important Supreme Court decisions have found antitrust violations against the big railroads, large gasoline companies and others that were once perceived as being untouchable.
Thus, it seems nearly certain that by 2023, U.S. college athletes will gain the opportunity to endorse a limited range of products and services. All that remains to be seen is whether the NCAA will voluntarily conform its practices to the Fair Pay to Play Act to avoid conflict with California members’ legal obligations, or instead risk a federal court antitrust ruling mandating that the NCAA change its athlete endorsement rules, and perhaps more.
If the NCAA opts for the reasonable approach of voluntary change, the future could move relatively smoothly for America’s monopolist college sports trade association.
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