The NCAA claims that “amateur” athletes are an essential part of its product
The core insight of Board of Regents is that antitrust law may not prevent competitors from colluding with one another — even if such collusion involves activity like horizontal price fixing that is typically illegal — if such collusion allows those competitors to offer a product to consumers that otherwise could not exist.
But what exactly is the “product” offered by the NCAA and the various schools that belong to it?
The NCAA argues in its brief that “the ‘product’ of college sports” is “different from professional sports because the participants are not only students but also amateurs, i.e., not paid to play.” Competition among “amateurs,” which in this context appears to mean players who can receive scholarships and small stipends but not salaries, the NCAA claims, is a fundamentally different product than competition among athletes who are paid whatever they can earn in the free market.
One problem with this argument is that if it can be applied to other industries, it could eviscerate antitrust protections for workers.
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