Horizontal restraints are unlawful per se unless a court can
identify some redeeming virtue that such restraints may create. In
National Collegiate Athletic Association v. Board of Regents of the
University of Oklahoma (“NCAA”), the Supreme Court rejected this
standard, refusing to condemn horizontal restraints on price and
output imposed by the NCAA without specifying any possible
redeeming virtues. The Court emphasized that other restraints not
before the Court were necessary to create and maintain athletic
competition like that supervised by the NCAA. This exemption for
sports leagues ensures that all restraints imposed by such entities
merit Rule of Reason scrutiny, regardless of how harmful they

Building on a forthcoming article, this Essay contends that
NCAA’s sports league exemption contravenes traditional antitrust
principles, including the ancillary restraints doctrine (which NCAA
ignored). This Essay also argues that the exemption increases the
number of false negatives and potentially impedes the conduct of Rule
of Reason analysis. Finally, this Essay explains how the exemption
inspired and informed an ill-advised doctrinal innovation, the so-
called “Quick Look” methodology of Rule of Reason analysis, whereby
courts condemn certain restraints “in the twinkling of an eye.” Some
lower courts have recently extrapolated from this approach and
exempted restraints limiting rivalry for the services of student
athletes from Rule of Reason scrutiny, rendering such restraints
lawful per se.

The United States Supreme Court is currently reviewing the
Ninth Circuit’s holding in National Collegiate Athletic Association v.
Alston, which condemned NCAA regulations limiting the size of
athletic scholarships. This Essay provides the Alston Court with a
roadmap for eliminating the sports league exemption, thereby placing
such restraints on equal footing with restraints imposed by other
entities. The Essay also advises the Court to reject lower court
decisions that built upon the Quick Look doctrine and have treated
restraints governing student athlete eligibility as lawful per se, thus
exempting them from Rule of Reason scrutiny. Finally, the Essay
concludes that the restraints before the Court in Alston may well
produce cognizable antitrust benefits by overcoming the market
failure that would result from unbridled rivalry for the services of
student athletes. The Essay submits that the Court should articulate
a Rule of Reason methodology in Alston that reflects the non-
technological nature of such efficiencies.

Document Type


Publication Information

11 Wake Forest Law Review Online 70-91 (2021)