Based on the 35 years since it was decided, it is difficult to believe that the NCAA lost in the seminal antitrust case NCAA v. Board of Regents.
Board of Regents involved a challenge to the NCAA’s plans to limit the number of live college football games to just fourteen per season, a number of games that likely does not even equal the number of games per three-hour timeslot on every given Saturday in modern times. The NCAA had believed that allowing anything more than strict control over television rights would risk substantial harm to live ticket sales. The plaintiffs—the Universities of Oklahoma and Georgia—wanted the right to sell broadcast rights on their own.
The NCAA lost this case, with a 7-2 majority finding that NCAA restraints on the price and output of college television rights were unlawful under the Sherman Act as unlawful artificial manipulation of the television broadcast rights market. However, as I discussed in my post two weeks ago discussing and analyzing raw citations to Board of Regents, a substantial reason for citations to this opinion by future cases—particularly those cases involve the NCAA—involve reasons wholly unrelated to television rights. And that is where the NCAA has turned a major legal loss into an incredible legal weapon against future antitrust challenges to its amateurism model.
The NCAA has had found great success in cases that they are involved in that cite Board of Regents, regardless of reason. Of the 755 judicial decisions to date that have cited Board of Regents, 35 of those cases involved the NCAA as a named party (i.e. plaintiff or defendant). Of these cases, the NCAA ultimately prevailed on 27 of these cases—a solid win rate of 77.1 percent.
Since the NCAA did lose on the antitrust merits in Board of Regents, it would be expected that future antitrust cases citing Board of Regents as precedent involving the NCAA would not go well for them. But while the NCAA has done worse in antitrust cases citing Board of Regents than cases overall, they still do quite well in these cases—winning 17 of 23 of these cases for a win rate of 74 percent.
This strong track record stays above 70 percent in both citing Board of Regents specifically for discussions of the NCAA’s role in preserving amateurism. Interesting, some cases have attempted to use Board of Regents’s amateurism language against the NCAA, with mixed success. In the seminal 1988 Supreme Court case NCAA v. Tarkanian, for example, the basketball coach plaintiff allegedly suspended without due process argued unsuccessfully that the NCAA’s “critical” function in preserving amateurism—as deemed by the Supreme Court in Regents—transformed that role into a traditional, essential state function thus turning the NCAA into a state actor. While the Nevada Supreme Court had accepted that argument, the U.S. Supreme Court was not so convinced on appeal and found that the NCAA was not a state actor under that theory or any other.
It is clear based on the data that the NCAA has been quite successful in using Board of Regents as a shield from challenges to amateurism. The notable exceptions come from the Ninth Circuit’s recent decisions in O’Bannon v. NCAA and Alston v. NCAA which bucked that trend in a meaningful way. Aside from those two cases, however, the NCAA has been remarkably successful at using Board of Regents a robust shield against litigation challenging both amateurism-specific restrictions and other issues on a wide variety of legal issues.
Of course, arguably the most important citation to Board of Regents is still to come, as the Supreme Court will hear oral arguments in the NCAA’s appeal of Alston just over one month from today. An NCAA loss in Alston could certainly reverse all of the wins it has received in post-Board of Regents litigation. But given the NCAA’s track record over the past 35 years, it is difficult to justify betting against them.