Some see the agreement to settle three major antitrust class actions against the college sports system as the beginning of the end to years of legal turmoil. If anything, they’re the end of the beginning.
The settlements mean only that the cases based on past and current violations will be over, if/when the deals get court approval. Future violations could still occur.
Collective action by independent businesses to predetermine labor costs will lead to future violations. Colleges and universities that profit from athletics have two choices: embrace a truly open labor market with no rules among schools or secure an antitrust exemption through a multi-employer bargaining unit.
The president of the union that is attempting to unionize the Dartmouth men’s basketball teams said as much in his statement in response to the antitrust settlements.
“NCAA member universities must follow the same antitrust labor laws as everyone else,” Local 560 president Chris Peck said. “Only through collective bargaining should NCAA members get the antitrust exemptions they seek.”
For instance, the NIL problem won’t magically disappear as a result of the antitrust settlements. The NIL boom is a direct result of the NCAA realizing three years ago that it can no longer keep athletes from making money on their own, based on their fame. Even if in many cases it has become “pay for play” (and it has), if the NCAA passes standards aimed at putting the NIL toothpaste back in the tube now that players will be paid directly and the members go along with it, that will create a fresh antitrust violation.
The only way to fix this, under current antitrust laws (i.e., without Congress giving college sports an exemption), would be to create a massive, nationwide union and negotiate the details of an NFL-style CBA. Players would sign contracts. Their movement among schools would be restricted. Spending would be limited. And, if the two sides can agree to it, rules could be put in place aimed at keeping boosters from cramming extra payments into the players’ pockets.
That part won’t be easy. How will anyone distinguish legitimate endorsements from a wannabe big shot funneling cash to players?
Regardless, there are many issues that need to be addressed going forward. The settlements of three major antitrust cases cleans up past messes. It does not provide immunity against new ones.
The college system still needs a comprehensive fix that addresses future antitrust issues while also creating an environment in which competitive balance will exist. Whether it’s a Super League or an English soccer-style collection of tiers with relegation and promotion, the universities and colleges must devise a strategy that solves future potential antitrust issues.
These settlements aren’t that solution. Instead, they’re an acknowledgement that a solution is needed.
