By Robert A. Boland, J.D.
On Thursday, April 28, 2016 the NCAA’s Division I Board of Directors elected to rescind a controversial, recently passed rule that banned satellite football camps. The original ban was one that deeply divided the major football schools and conferences. Coming out of the NCAA’s Division I Council just weeks earlier, the ban which prohibited off-campus spring and summer football camp activity by both schools and their coaches, was in some measure what CBS Sports writer Jon Solomon called “a contrived controversy.” [1]
But even if contrived, the rule and ensuing controversy had numerous implications. The rule was, and even now with it pulled back for more study, at once: a test of the “Power Five” conferences governance over the collegiate Football Bowl Subdivision (FBS); a divisive turf battle over the fertile recruiting ground of the South, with the very powerful Southeastern (SEC) and Atlantic Coast (ACC) Conferences strongly opposed to the camps as incursions into their geography by competitors; it was a public rebuke of upstart Michigan Coach Jim Harbaugh who has yet to visit a place where he wasn’t ready to strip to his khakis and start tossing a ball before flashing cameras; and finally but perhaps most crucially, the ban looked in the “right light” to be an antitrust violation. In rescinding it, the NCAA leadership may have quickly recognized a new normal in its prior latitude with regard to rule making. Although an announced U.S. Department of Justice inquiry into may have hastened this reaction from the NCAA.
Satellite Camp Defined
The Satellite Camp ban, as originally enacted, had two functional prohibitions. First, according to the NCAA’s own statement, “[t]he Council approved a proposal applicable to the Football Bowl Subdivision that would require those schools to conduct camps and clinics at their schools’ facilities or at facilities regularly used for practice or competition.”[2] So essentially it limited schools to having any kind of football camp or clinic on its own campus or practice facilities and not bring their camps to more talent rich areas.
But it also limited where coaches, including part time and graduate assistants and other staff members could work in the summer or off-season, “FBS coaches and non-coaching staff members with responsibilities specific to football may be employed only at their school’s camps or clinics.”[3] It kept college coaches out of not just other schools’ camps but also away from all camps, even those not affiliated with an institution. The NCAA also sought immediate implementation of the rule, sending schools and coaches scrambling.
Proponents of the ban favored it because it curbed another broad expansion of the already onerous recruiting cycle and less directly keep current college players on campus and in class, after Harbaugh had brought his Michigan team to the IMG Academy in Florida during spring practice. But claims of protecting territory were never too far below the surface particularly in statements from SEC and ACC athletic directors. Solomon even quoted LSU Athletic Director Joe Alleva, from a radio interview, as saying, “[m]ainly what I’m concerned about is other schools coming into our state and stealing our kids.”
Despite a divide body, the NCAA Division I Council voted in the ban, which was proposed by the SEC, largely under the view that a single solution was needed, that either satellite camps would be allowed or not and a level playing field would be maintained. Yet, it is precisely this all or nothing rule making, a norm in college sports thinking, when it involves an agreement to protect or divide markets or limits competition that likely triggers antitrust scrutiny.
The NCAA: An Inviting Target
Any new NCAA rule, even one clothed in the fabric of maintaining competitive equality might be subject to antitrust challenge if it touches on a market. This is likely true even of a popular and well-intentioned rule, but a polarizing one like this rule must pass through the eye of the needle of antitrust scrutiny. That is simply a post O’Bannon and pre-Jenkins reality, referring to the O’Bannon v. NCAA case currently on appeal and the Jenkins v. NCAA suit currently docketed in the Ninth Circuit. Antitrust lawyers have found the NCAA, a trade organization that also enforces discipline and competitive balance on its members an inviting target. The majority of other sports contexts leagues and disciplinary authorities receive significant antitrust immunity from one of two primary sources: 1) the statutory and non-statutory labor exceptions that immunize the outcome of arms’ length collective bargaining between management and union; and 2) the Sports Broadcasting Act of 1961 (Title 15 USC Section 32) which allows individual pro sports entities (teams) to collectively act (as a league) in selling broadcast rights. But the NCAA gains no immunity from these and must justify all its market impinging activities under a Rule of Reason analysis.
The NCAA has been challenged in antitrust before and found itself on the losing end most famously NCAA v. Board of Regents (1984) and Law v. NCAA (1998). The Tenth Circuit in the Law decision questioned any rule that had a substantially adverse effect on competition. Under nearly every Federal guideline for interpreting antitrust violations, horizontal agreements to restrict competition, divide territory or fix prices are construed as contrary to Section 1 of the Sherman Antitrust Act and the NCAA is without any of the immunity the professional leagues have by virtue of the labor exceptions and Sports Broadcasting Act to such challenges.
After the Law decision proved to be a devastating financial defeat, the NCAA and its attorneys have demonstrated much greater caution in many activities that might be market or competitive restrictions. The settlement of Metropolitan Intercollegiate Basketball Association v. NCAA (2004), where the NCAA purchased the National Invitation Tournament (NIT) from the plaintiffs to avoid a trial, on whether a ban on teams declining an NCAA tournament bid accepting a bid to another post-season tournament, is one such example of this greater caution. But governance of a public, popular and lucrative business, which is precisely what collegiate athletics are, remains a challenge and the Satellite Camps ban is one where the NCAA’s own legislative structure in trying to maintain an even playing field for all schools may have once again triggered Sherman Act liability. The problem is that all too often coaches and athletic directors don’t see their activity in rule making even related to the antitrust laws but in today’s climate when a competition rule impinges on any relevant market antitrust scrutiny will be triggered.
The Markets Involved
One mid-major conference football staffer interviewed for this article laughed off the aspect of the Satellite Camp ban keeping his school from holding a camp in recruit-rich Florida or Georgia, the activity most associate with the term, as “something they’d never do.” But he turned serious when he said the ban might very well prevent his institution from identifying potential players at camps and clinics held in larger cities in his own state by high schools and was grave when he described the ban affecting his own career by keeping him from working other school’s camps and “getting to know and be seen” by head coaches and coordinators at larger institutions who might recommend him for jobs in his career path.
If the ban on off-campus activity has career implications for coaches, what might it hold for prospective student-athletes? That highly debated phrase is still relevant in this context because, as opponents of the ban describe it as potentially preventing a student from even learning about institutions remote from his hometown and the range of opportunities that they might hold, not just athletic opportunities.
No one is naïve enough to say that this isn’t fundamentally about football recruiting. But on nearly every college campus today is at least one former athlete, who today is simply a student, who learned about that school, applied and ultimately attended because of a meeting with a coach. USA Today decried the rule and its implication for what it described as “under recruited prospects,” who angle for the opportunity to receive not a scholarship but a paid official visit to an institution far from home that they could not afford to visit on their own unofficially.[4]
The Search for Antitrust Immunity
In teaching and following the major trends in sports law over the last many decades it is easy enough to describe much of it as a search for an antitrust remedy by plaintiffs and antitrust immunity by defendants across all sports. This can be seen in a range of long running cases from Flood, Robertson, Powell and McNeil, Brown, Clarett, American Needle to Brady- the last of these being the locked out Tom Brady not the football deflating Tom Brady (Brady v. NFL, 2010). But the Board of Regents decision demonstrated and O’Bannon decision has reiterated that collegiate sports and the NCAA are really without significant armor or defensive weapons in an antitrust suit.
This means that even in a core function, such as rule making, the NCAA, as a trade association must be able to meet a Rule of Reason analysis to support any action it takes that might impinge on a market place or consumers in terms of price, supply or cost. The NCAA has not always been fully cognizant of this reality, expected deference from the Courts that hasn’t always been forthcoming.
NCAA and the New Normal with Regard to Antitrust Liability
But in this case, NCAA Board of Directors are deserving of credit then for walking back from an overreaching rule that might become the subject of intense litigation. Even NCAA Vice President Oliver Luck, an attorney himself, was reported to have said in a speech would likely be reviewed.[5]
The right thing happened. This time it happened before anyone was negatively affected or a lawsuit was filed. What makes this situation remarkable is not the attention this rule received. Arguably, it was a rule that was enacted to level the playing field among schools in recruiting, something always considered within the purview of the NCAA to regulate. What is remarkable is the NCAA’s own recognition that its activities, even in the rule making sphere are not only subject to, but likely to trigger negative antitrust review. It is a position removed from the NCAA’s prior stance in cases like Board of Regents, Law and O’Bannon. If this is a ‘new normal’ for the NCAA, to even override the sentiments of its own membership, this may establish a more pragmatic and sustainable legal footing for the NCAA and its members.
Boland is Director of MBA/MSA Programs & Executive in Residence/Sports Law, Department of Sports Administration, College of Business, at Ohio University.
[1] Jon Solomon, SEC 1, Harbaugh 0, Satellite Camps are Done and We Are All Worse Off, CBSSports.com, April 8, 2016. http://www.cbssports.com/collegefootball/writer/jon-solomon/25547256/ncaa-puts-an-end-to-silly-satellite-camp-debate-but-hurts-players-most
[2] NCAA Statement on Ban
[3] Id.
[4] Paul Myerberg, Real Losers in NCAA Ban on Satellite Camps Are Under Recruited Players, USA Today April 8, 2016. http://www.usatoday.com/story/sports/ncaaf/2016/04/08/ncaa-hurts-players-by-ending-satellite-camps/82796952/
[5] Zac Jackson, Pro Football Talk on Twitter, April 18, 2016. https://twitter.com/AkronJackson/status/722058815944945664
