Document Type

Article

Publication Date

8-2021

Abstract

A curious feature of NCAA v. Alston is the shoe that didn’t drop, at least not immediately. “Put simply,” Justice Gorsuch wrote for a unanimous Court, “this suit involves admitted horizontal price fixing in a market where the defendants exercise monopoly control.” Given that this pronouncement occurred on page fourteen of the Court’s opinion, one might have expected that the opinion would end on, say, page fifteen, for if there has been one fixed point in American antitrust law it has been that horizontal price-fixing, especially but not only by those with monopoly power, is per se illegal. Instead, the Court pressed on for more than twenty additional pages, applying the Rule of Reason, before concluding that the NCAA had violated § 1 of the Sherman Act by limiting the education-related benefits that members may provide their student athletes. Even Justice Kavanaugh’s more thunderous concurrence, while proclaiming that “‘[p]rice-fixing labor is price-fixing labor,’ and that this is ‘ordinarily a textbook antitrust problem,’” appeared willing to accept that ultimately some constraints, such as a salary cap, would be deemed acceptable.

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This article was published in the Special Issue Fall 2021 - NCAA v. Alston.

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