[1]There is a growing movement among college athletes to expand their financial opportunities. The central issue is the inequitable distribution of revenue – schools generate significant income, while athletes receive little or no compensation.”[2] Athletes have pursued three primary legal strategies to pursue their rights. The first is to use antitrust law to challenge NCAA laws that restrict athletes’ economic opportunities.[3] The second strategy is looking at employment law and unionization.[4] The third is through the name, image and likeness (“NIL”) movement.[5]
The modern era of college sports antitrust litigation began with NCAA v. Board of Regents.[6] In Board of Regents, a consortium of college athletic departments sought to challenge an NCAA television plan that limited the number of times each school could have their football games broadcast on national television.[7]
The Supreme Court held that the NCAA’s TV plan violated the Sherman Act.[8] The Court explained that a restraint on trade in college sports is subject to the “rule of reason” test and is not per se illegal under the Sherman Act.[9] The “rule of reason” is appropriate for college sports because it is a unique market tied to amateurism and academic tradition, and thus there needs to be some sort of restraint on trade.[10] The Court identified the relevant market as college football TV broadcasts, and explained that the NCAA had sufficient market power in that market.[11] Lastly, the court noted that the requirement for schools to opt into the NCAA’s TV plan, rather than allowing schools to negotiate their own TV plans with networks, was contrary to free market principles, and thus was un unreasonable restraint on trade.[12]
The Supreme Court in National Collegiate Athletic Ass’n v. Alston built on its holding in Board of Regents to expand certain compensation rights to student athletes directly.[13] The plaintiffs in Alston challenged an NCAA rule that restricted educational in-kind benefits, such as meal plans and graduate school scholarships.[14] The majority in Alston ruled in favor of the plaintiffs, holding that the NCAA rule violated antitrust law.[15]
The NCAA argued that, based on Board of Regents, restraints of trade are per se legal and thus exempt from antitrust law.[16] The Court rejected this argument, and assessed under a “rule of reason” analysis that the NCAA’s restrictions unreasonably restrained trade under the Sherman Act.[17] Justice Kavanaugh, in his concurrence, went even further than the majority, arguing that the entire NCAA system of restricting student athlete compensation is unlawful under the Sherman Act.[18]
I. The Non-Statutory Labor Exemption to Antitrust Law
Section 7 of the National Labor Relations Act (“NLRA”) gives employees the right to file a petition before the National Labor Relations Board (“NLRB”) to unionize and negotiate a collective bargaining agreement (CBA) with their employer.[19] There are two types of bargaining units under the NLRA.[20] One is a single employer bargaining unit, where employees of one company bargain with the employer of one company.[21] Another is a multi-employer bargaining unit, where employees of multiple companies bargain with multiple employers.[22]
Courts created the non-statutory labor exemption to resolve conflicts between labor law and antitrust law.[23] The exemption establishes that CBAs can include terms that would otherwise violate antitrust law.[24] Courts have addressed in detail how this exemption applies to multi-employer bargaining units, but there is a circuit split for how to apply it.[25] Additionally, courts have not explicitly addressed whether the exemption applies to single employer bargaining units.[26]
The Supreme Court outlined the contours of the non-statutory labor exemption and the underlying policies in a series of four decisions.[27] Most notably, the Court in Brown v. Pro Football Inc. explained that the exemption is implied from federal labor laws,[28] which set forth a national labor policy favoring collective bargaining insulated from certain antitrust laws.[29] The Court added that the NLRA requires good-faith bargaining over wages, hours and working conditions, and that the statute delegates rulemaking and interpretative authority to the NLRB.[30]
The Court in Brown also explained that the non-statutory labor exemption reflects both history and logic.[31] From a historical perspective, when Congress passed the NLRA in 1934, it sought to incorporate a labor exemption that had existed in antitrust laws since 1914.[32] Congress hoped to prevent courts from applying antitrust law to labor disputes.[33] From a logical perspective, requiring groups of employers and employees to bargain while simultaneously prohibiting them from agreeing to competition-restricting terms would be unworkable.[34] The implied exemption thus allows employers and employees to collectively bargain for terms that limit competition without facing antitrust liability.[35]
I. Antitrust Implications of Single Employer Bargaining Units for College Sports
Single-employer bargaining in college sports is no longer a hypothetical. [36] In 2015, the Northwestern football team filed a petition before the NLRB to form a single employer bargaining unit and negotiate a CBA with the University.[37] The NLRB rejected the petition, but it later noted that single employer bargaining units were not categorically precluded from collective bargaining in college sports.[38] A major legal development occurred on February 5, 2024, when the NLRB asserted jurisdiction over the Dartmouth College men’s basketball team as single employer bargaining unit negotiating with the school over the mandatory subjects of bargaining.[39]
If the non-statutory labor exemption applies to antitrust law, it would have major implications for single employer bargaining units in college sports. The outcomes of antitrust lawsuits against the NCAA have been predicated on a lack of unionization amongst college student athletes.[40] If the exemption were to apply to single employer bargaining units, universities would have the ability to undo many of the labor rights gains student athletes have achieved through antitrust litigation. This would give school athletic departments leverage to negotiate terms in CBAs that restrict student compensation – agreements that, without the labor exemption, would likely violate antitrust law.
[1] This is an excerpt of a forthcoming note under the supervision of Professor Marc Edelman, Fordham University School of Law.
[2] See Billy Witz, With Payments to College Athletes, Another Fight Looms for Women, N.Y. Times (May 29, 2024), https://www.nytimes.com/2024/05/29/us/payments-college-athletes-women.html.
[3] See Nat’l College Athletic Assn. v. Alston, 141 S. Ct. 2141 (2021).
[4] See Johnson v. Nat’l Collegiate Athletic Ass’n, 108 F.4th 163 (3d Cir. 2024).
[5] Sara Coello, What is NIL in College sports? How do athlete deals work?, ESPN (Sep. 26, 2024, 2:16PM ET, https://www.espn.com/college-sports/story/_/id/41040485/what-nil-college-sports-how-do-athlete-deals-work.
[6] See Nat’l Collegiate Athletic Ass’n v. Board of Regents of the Univ. of Okla., 468 U.S. 85 (1984).
[7] See id. at 92-93.
[8] See id. at 120.
[9] See id. at 102.
[10] See id. at 106.
[11] See id. at 111.
[12] See id. at 119.
[13] See Alston, 594 U.S. 69 (2021).
[14] See id. at 107.
[15] See id.
[16] See id. at 88.
[17] See id. at 107.
[18] See id. at 108-109.
[19] 29 U.S.C. § 157 (2018).
[20] See Marc Edelman, John T. Holden and Michael McCann, Life After Employee-Status in College Sports, Fordham L. Rev. 19 (forthcoming 2025). https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5062897
[21] See id.
[22] See id.
[23] See Marc Edelman and Michael A. Carrier, Of Labor, Antitrust, and Why the Proposed House Settlement Will Not Solve the NCAA’s problem, Fordham L. Rev. (forthcoming 2025). https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5053658
[24] See id.
[25] See Mackey v. Nat’l Football League, 543 F.2d 606, 614 (8th Cir. 1976) (finding that the exemption applies only where an alleged antitrust violation: (1) involves mandatory subjects of bargaining, (2) primarily affects the parties involved, and (3) is reached through bona fide, arm’s length bargaining). But see Clarett v. Nat’l Football League, 369 F.3d 124, 133-134 (2d Cir. 2004) (stating that the exemption must apply broadly where “the only alleged anticompetitive effect of the alleged restraint effect of the challenged restraint is on a labor market organized around a collective bargaining relationship.”).
[26] See Marc Edelman, The Future of College Athlete Players Unions: Lessons Learned from Northwestern University and Potential Next Steps in the College Athletes’ Rights Movement, 38 Cardozo L. Rev. 5, 1656 (2017), https://cardozolawreview.com/the-future-of-college-athlete-players-unions-lessons-learned-from-northwestern-university-and-potential-next-steps-in-the-college/.
[27] See United Mine Workers v. Pennington, 381 U.S. 657 (1965); See also Meat Cutters v. Jewel Tea, 381 U.S. 676 (1965); Connell Const. Co. Inc. v. Plumbers and Steamfitters Local Union No. 100, 421 U.S. 616 (1975); Brown v. Pro Football, Inc., 518 U.S. 231 (1996).
[28] See 518 U.S. at 236.
[29] See id.
[30] See id.
[31] See id.
[32] See id.
[33] See id.
[34]See id. at 237.
[35] See id.
[36] See Edelman, Holden and McCann, supra at 21.
[37] See Northwestern University and Coll. Athletes Players Ass’n (CAPA), 362 NLRB 167 at 5 (2015).
[38] See Memorandum from Jennifer Abruzzo, Gen. Counsel Nat’l Lab. Rels. Bd., to all All Reg’l Dirs, Officers in-Charge, & Resident Officers, Nat’l Lab. Rels. Bd. (Sept. 29, 2021), at 4. https://www.nlrb.gov/news-outreach/news-story/nlrb-general-counsel-jennifer-abruzzo-issues-memo-on-employee-status-of.
[39] See Edelman, Holden and McCann, supra at 22. The Dartmouth men’s basketball team later withdrew its petition to unionize. See Billy Witz, Dartmouth College Basketball Players Halt Effort to Unionize, N.Y. Times (De. 31, 2024), https://www.nytimes.com/2024/12/31/us/dartmouth-basketball-unionize.html.
[40] See Edelman, supra at 1656.
