Bd. of Regents, Etc. v. Natl. Collegiate Athletic Ass'n

BARNES, Justice,

dissenting.

I respectfully dissent to the result reached by the Majority Opinion.

I agree that this is not a per se violation of the antitrust laws, but, on applying the rule of reason adopted by the Majority Opinion to determine if there is a violation of the antitrust laws, I am forced to conclude that Bylaw 12-1 is a pure and simple commercial restraint of trade. There are no redeeming features to this rule. Its only purpose seems to be to discourage competition and excellence in Division I for economic reasons. Even the economic reasons are pointless. See page 16 of Appellants’ Reply Brief where it is argued that “there is no basis for concluding that by limiting the number of coaches who may be employed that the salaries to be paid are thereby reduced and that the profits derived therefrom by the member institution are increased”, because there is no restriction on salaries to be paid coaches and more money could be paid for coaches under the new rate than was paid when there was no limitation on the number of coaches.

The Appellants’ Briefs are moot as to the reason that the smaller schools (Divisions II and III) are expressly excluded from the rule. One might speculate that after considering the other fuzzy reasoning incorporated in Bylaw 12-1 that it was felt by its framers that the smaller schools (Divisions *509 II and III) could better afford the larger staffs.

Although Appellants contend that their basic purpose is the initiation, stimulation and improvement of intercollegiate athletic programs for student athletes and the promotion and development of educational leadership, athletic excellence, physical fitness, and sports participation as a recreational pursuit, Bylaw 12-1, resulting as it did from a special meeting to determine ways to collectively reduce the costs of the members’ athletic programs, would indicate that the true concern of the NCAA is how to run athletic programs at a profit to the member institutions. As previously stated, it could not effectively accomplish its purpose of enforced economy unless it also put a ceiling on the amount of salaries that could be paid to coaches. This would appear to me to be the next step for this organization if we permit Bylaw 12-1 to stand.

Bylaw 12-1 provides for an unwarranted, arbitrary invasion of the fiscal management of the participating schools. There is no way for a dissenting school to refuse to comply with the rule because their whole athletic program is dependent upon competition with other member schools. Part of Bylaw 12-1 itself provides for sanctions against a school that doesn’t comply.

Bylaw 12-1 dictates that the coaches in question must be terminated, not because they are not needed, not because the University of Oklahoma cannot afford to pay their salaries, not because they have violated any of the rules of conduct adopted by the NCAA, the Big Eight Conference, or the University of Oklahoma, but merely because the majority of Division I schools have determined that they cannot afford more than nine full-time and two part-time assistant coaches, and therefore for them to be competitive with the more successful programs that all of the schools in their division should be prohibited from having more coaches than they can afford.

The Majority Opinion sets out the true test of legality, “whether the restraint imposed is such as merely regulates and thereby promotes competition or whether it is such as may suppress or destroy competition”, citing United States v. Topco Associates, Inc., 405 U.S. 596, 608 , 92 S.Ct. 1126, 1133 , 31 L.Ed.2d 515 (1972), and United States v. Columbia Steel Co., 334 U.S. 495 , 68 S.Ct. 1107, 1121 , 92 L.Ed. 1533 , reh. den. 334 U.S. 862 , 68 S.Ct. 1525 , 92 L.Ed. 1781 (1948). Here the restraint imposed by Bylaw 12-1 has the effect of destroying competition rather than promoting it. This is a flagrant restraint of trade, which has nothing to do with the improvement of intercollegiate athletic programs. It is violative of the antitrust laws of our state and our nation. We should not permit it to stand.

I respectfully dissent.

I am authorized to state that Justices BERRY and SIMMS concur in my dissenting views.