Amicus Curiae Brief — National Collegiate Athletic Association, Petitioner v. Shawne Alston, et al.

Nos. 20-512, 20-520

tbe upretne Court

of the Uniteb 6tatet

NATIONAL COLLEGIATE ATHLETIC ASSOCIATION,

Petitioner,

SHAWNE ALSTON, ET AL.,

Respondents.

AMERICAN ATHLETIC CONFERENCE, ET AL.,

Petitioners,

SHAWNE ALSTON, ET AL.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF OF OPEN MARKETS INSTITUTE, COLOR OF

CHANGE, NATIONAL EMPLOYMENT LAW PROJECT,

STRATEGIC ORGANIZING CENTER,

TOWARDS JUSTICE,

AND SCHOLARS OF ECONOMICS AND LAW

AS AMICI CURIAE IN SUPPORT OF RESPONDENTS

JAY L. HIMES

Counsel of Record

LABATON SUCHAROW LLP

140 Broadway

New York, NY 10005

(212) 907-0700

jhimes@labaton.coin

(Counsel continued on inside cover)

SANDEEP VAHEESAN

OPEN MARKETS INSTITUTE

1440 G Street, NW

Washington, DC 20005

MARKA PETERSON

STRATEGIC ORGANIZING

CENTER

1900 L Street, NW Suite 900

Washington, DC 20036

NAJAH FARLEY

NATIONAL EMPLOYMENT

LAW PROJECT

90 Broad Street, Suite 1100

New York, NY 10004

Counsel for Amici Curiae

1

TABLE OF CONTENTS

TABLE OF AUTHORITIES

ii

INTEREST OF AMICI CURIAE

1

SUMMARY OF ARGUMENT

3

ARGUMENT

12

I.

The Sherman Act Protects Workers and

Other Sellers from Purchasers' Restraints

of Trade and Monopolistic Practices

12

II. The Ninth Circuit's Application of the Rule

of Reason Subverts the Sherman Act's

Protection of Workers and Other Sellers and

Permits Courts to Engage in Unbounded

Balancing

16

The Ninth Circuit's Application of the

Rule of Reason Subordinates Sellers'

Interests to Customers' Interests

17

This Court Has Directed the Lower

Courts to Refrain from Unbounded

Cost-Benefit Analysis Under the Rule

of Reason

19

III. The Ninth Circuit Should Have Considered

Only the Restraint's Harms and Benefits to

College Basketball and Football Players

23

IV. The NCAA Cannot Evade the Sherman Act

by Using Special Labels or Citing A History

25

of Trade Restraints

CONCLUSION

29

11

TABLE OF AUTHORITIES

Cases

American Needle, Inc. v. National Football League,

560 U.S. 183 (2010)

10, 11, 26, 28

Anderson v. Shipowners' Ass'n of Pacific Coast,

272 U.S. 359 (1926)

9, 14

Andrus v. Glover Construction Co.,

446 U.S. 608 (1980)

Apple Inc. v. Pepper,

139 S.Ct. 1514 (2019)

Associated General Contractors of Cal., Inc.

v. Cal. State Council of Carpenters,

459 U.S. 519 (1983)

Associated Press v. United States,

326 U.S. 1 (1945)

California Dental Association v. FTC,

526 U.S. 756 (1999)

California v. FPC,

369 U.S. 482 (1962)

29

5, 15

24

11, 29

24

10, 27

City of Mt. Pleasant v. Associated Electric Co-op., Inc.,

838 F.2d 268 (8th Cir. 1988)

28

Continental T.V., Inc. v. GTE Sylvania Inc.,

433 U.S. 36 (1977)

20

Freeman v. San Diego Association of Realtors,

322 F.3d 1133 (9th Cir. 2003)

28

FTC v. Ind. Federation of Dentists,

476 U.S. 447 (1986)

24

111

Gordon v. New York Stock Exchange, Inc.,

422 U.S. 659 (1975)

27

International Boxing Club of New York, Inc. v.

United States,

358 U.S. 242 (1959)

14

Knevelbaard Dairies v. Kraft Foods, Inc.,

232 F.3d 979 (9th Cir. 2000)

16, 24

Law v. National Collegiate Athletic Ass'n,

134 F.3d 1010 (10th Cir. 1998)

9, 15, 25

Leegin Creative Leather Products, Inc. v. PSKS, Inc.,

551 U.S. 877 (2007)

20

Mandeville Island Farms, Inc. v.

American Crystal Sugar Co.,

334 U.S. 219 (1948)

National Collegiate Athletic Ass'n v.

Board of Regents of Univ. of Okla.,

468 U.S. 85 (1984)

4, 5, 14, 24

passim

National Society of Professional Engineers v.

United States,

435 U.S. 679 (1978)

4, 6, 17, 20

Ohio v. American Express Co.,

138 S. Ct. 2274 (2018)

16, 17

Palmer v. BRG of Georgia, Inc.,

498 U.S. 46 (1990)

11, 28

Polygram Holding, Inc. v. FTC,

416 F.3d 29 (D.C. Cir. 2005)

9, 25

Radovich v. National Football League,

352 U.S. 445 (1957)

14

iv

Smith v. Pro Football, Inc.,

593 F.2d 1173 (D.C. Cir. 1978)

6, 20, 21, 22

Swift & Co. v. United States,

196 U.S. 375 (1905)

5, 13

Timken Roller Bearing Co. v. United States,

341 U.S. 593 (1951), overruled on other grounds

by Copperweld Corp. v. Independence Tube Corp.,

467 U.S. 752 (1984)

11, 28, 29

Todd v. Exxon Corp.,

275 F.3d 191 (2d Cir. 2001)

16

United States v. Borden Co.,

308 U.S. 188 (1939)

10, 27

United States v. Philadelphia National Bank,

374 U.S. 321 (1963)

21

United States v. Sealy, Inc.,

388 U.S. 350 (1967)

10, 26

United States v. Topco Associates, Inc.,

405 U.S. 596 (1972)

passim

Vogel v. American Society of Appraisers,

744 F.2d 598 (7th Cir. 1984)

16

West Penn Allegheny System, Inc. v. UPMC,

628 F.3d 85 (3d Cir. 2010)

16

Weyerhaeuser Co. v.

Ross-Simmons Hardwood Lumber Co.,

549 U.S. 312 (2007)

15

Statutes

Sherman Act

passim

Sherman Act § 1

9, 11, 28

V

Legislative Materials

21 Cong. Rec. 1768 (1890)

13

21 Cong. Rec. 2457 (1890)

13

21 Cong. Rec. 2461 (1890)

4, 12

21 Cong. Rec. 2170 (1890)

13

21 Cong. Rec. 4098 (1890)

13

Other Authorities

Allensworth, Rebecca Haw, The Commensurability

Myth in Antitrust, 69 Vand. L. Rev. 1 (2016)

22

Crane, Daniel A., Balancing Effects Across Markets,

80 Antitrust L.J. 397 (2015)

22

Kirkwood, John B., The Essence of Antitrust:

Protecting Consumers and Small Suppliers

from Anticompetitive Conduct,

81 Fordham L. Rev. 2425 (2013)

13

Millon, David, The Sherman Act and the Balance

of Power, 61 S. Cal. L. Rev. 1219 (1988)

12

Nagy, Tibor, The "Blind Look" Rule of Reason:

Federal Courts' Peculiar Treatment of

NCAA Amateurism Rules,

15 Marq. Spors L. Rev. 331 (2005)

Thorelli, Hans B.,

The Federal Antitrust Policy (1955)

8, 19

12

Werden, Gregory J., Monopsony and the Sherman

Act: Consumer Welfare in a New Light,

3, 12

74 Antitrust L.J. 707 (2007)

1

INTEREST OF AMICI CURIAE1

The Open Markets Institute (OMI) is a nonprofit organization dedicated to promoting fair and

competitive markets. It does not accept any funding or

donations from for-profit corporations. Its mission is to

safeguard our political economy from concentrations of

private power that undermine fair competition and

threaten liberty, democracy, and prosperity. OMI

regularly provides expertise on antitrust law and

competition policy to Congress, federal agencies,

courts, journalists, and members of the public.

Color Of Change is the nation's largest online

racial justice organization that helps people respond

effectively to injustice in the world around us. As a

national online force driven by 7 million members, we

move decision-makers in corporations and government

to create a more human and less hostile world for

Black people in America.

The National Employment Law Project (NELP)

is a non-profit legal organization with fifty years of

experience advocating for the employment rights of

workers in low-wage industries. NELP's areas of

expertise include the workplace rights of workers, and

the ways in which companies use unilaterally imposed

labels and structures on their workers to carve

themselves out of workplace protection laws. NELP

collaborates closely with community-based worker

centers, unions, and academics, litigated, and

participated as amicus in numerous cases addressing

1 No counsel for a party authored this brief in whole or in part

and no person other than amici and their counsel made a

monetary contribution to its preparation or submission. The

parties' letters consenting to the filing of amicus briefs are on file

with the Clerk.

2

the rights of contingent workers under federal and

state laws in federal and state and the U.S. Supreme

Court. NELP has submitted testimony to the U.S.

Congress and state legislatures on numerous

occasions. NELP has an interest in this case because

of the possible implications to workplace laws,

workers, and our society.

The Strategic Organizing. Center (SOC) is a

democratic federation of labor unions representing

millions of working people. The organization strives to

ensure that every worker has a living wage, benefits to

support their family and dignity in retirement. The

SOC advocates not just for jobs, but for good jobs: safe,

equitable workplaces where all employees

meaningfully participate in the decisions affecting

their employment. The SOC believes that robust

antitrust enforcement and regulation can bring more

equity to the balance of power between working people

and those who profit from their labor.

Towards Justice is a non-profit legal

organization that uses impact litigation, policy

advocacy, and collaboration with workers and workers'

organizations to advance economic justice and attack

systemic impediments to worker power. Our litigation

on behalf of workers addresses a range of important

workplace issues, including workplace safety and

health, systemic racial discrimination, misclassification,

the abuses of forced arbitration, exploitation• of the

foreign guest worker programs, and forced labor.

Towards Justice has supported workers in litigating

several cases under the antitrust laws that have

sought to protect the notion that one of the pillars of

workplace dignity is workers' right to shop between

employers for better treatment.

3

Marshall Steinbaum is assistant professor of

economics at the University of Utah. He researches

market power in labor markets and more generally,

including its applications in antitrust, labor

regulation, higher education, and other policy areas.

Sanjukta Paul is assistant professor of law and

Romano Stancroff Research Scholar at Wayne State

University. Her work on antitrust and labor has

appeared or is forthcoming in the Yale Law Journal,

UCLA Law Review, Law & Contemporary Problems,

and the Berkeley Journal of Employment & Labor

Law, and her book in the same area will be published

by Cambridge University Press.

Veena Dubal is professor of law at the

University of California, Hastings College of the Law.

Her research focuses on the intersection of law and

social change in the work context. She joined the

Hastings Faculty in 2015, after a post-doctoral

fellowship at Stanford University (also her

undergraduate alma mater). Prior to that, she received

her J.D. and Ph.D. from UC Berkeley, where she used

historical and ethnographic methodologies to study

workers and worker collectivities in the San Francisco

taxi industry. Her work on taxi workers, Uber drivers,

and Silicon Valley tech workers has been featured in

top-ranked law reviews and featured in the local and

national media.

SUMMARY OF ARGUMENT

The Sherman Act protects sellers of goods and

services, including workers who sell their labor, from

powerful purchasers. Gregory J. Werden, Monopsony

and the Sherman Act: Consumer Welfare in a New

Light, 74 Antitrust L.J. 707, 714 (2007). Senator

Sherman himself stated that trusts and monopolies

4

"regulate prices at their will, depress the price of what

they buy and increase the price of what they sell." 21

Cong. Rec. 2461 (1890). Accordingly, "[t]he [Sherman

Act] does not confine its protection to consumers, or to

purchasers, or to competitors, or to sellers."

Mandeville Island Farms, Inc. v. American Crystal

Sugar Co., 334 U.S. 219, 236 (1948). To ensure

protection of upstream market participants, antitrust

analysis under the rule of reason is carefully

circumscribed. It "does not open the field of antitrust

inquiry to any argument in favor of a challenged

restraint that may fall within the realm of reason."

National Society of Professional Engineers v. United

States, 435 U.S. 679, 688 (1978).

The Ninth Circuit undercut both the Sherman

Act's protection of sellers and this Court's guidance on

analyzing restraints of trade. The respondents—

current and former college basketball and football

players—sell their athletic services to the member

colleges of the National Collegiate Athletic Association

(NCAA). They allege that the NCAA and its member

colleges collusively restrained intercollegiate

competition for their athletic services by capping

compensation for players at the cost of attendance and

thereby deprived them of the right to earn competitive

pay for their hard work and talent.2 Once the college

athletes established a prima facie case under the rule

2 The players generate billions in annual revenues for the NCAA

and its member colleges. A fair market for their athletic services

.ultimately requires both competition among colleges and

collective organizations for players. In general, labor markets

serve workers best when employers compete for their skills and

workers exercise collective power through labor unions.

5

of reason,3 the district court allowed the NCAA to

rebut this presumption by showing benefits to other

groups, such as viewers of college sports, and credited

one of these justifications: purported viewer interest in

college sports on account of limited player

compensation. The Ninth Circuit affirmed the district

court's ruling, including its balancing of harms to the

college athletes from the NCAA's trade restraints

against their supposed benefits to viewers of college

sports.

In accordance with congressional intent, since

the early years of the Sherman Act, this Court has

consistently held that the law protects sellers from

restraints of trade and monopolistic practices. In Swift

& Co. v. United States, 196 U.S. 375 (1905), this Court

upheld the antitrust liability of stockyard owners who

had collusively suppressed the price of cattle paid to

ranchers. In a later buyer-side price-fixing case, this

Court stated explicitly that the Sherman Act protects

both purchasers and sellers: "The Act is

comprehensive in its terms and coverage, protecting

all who are made victims of the forbidden practices by

whomever they may be perpetrated." Mandeville

Island Farms, 334 U.S. at 236 (emphasis added). More

recently, this Court held that a monopolistic

intermediary inflicts distinct injuries on purchasers

and sellers, and that both groups have the right to

recover antitrust damages from the monopolist. Apple

Inc. v. Pepper, 139 S. Ct. 1514, 1525 (2019).

3 This Court has held that the NCAA's horizontal restraints on a

downstream market (television broadcast of football games)

should be evaluated under the rule of reason and not subject to

per se invalidation. National Collegiate Athletic Ass'n v. Board of

Regents of Univ. of Okla., 468 U.S. 85, 86 (1984).

6

To assure the Sherman Act's protection of

multiple groups of economic actors, courts, in a rule of

reason analysis, should look only at a restraint's

effects in the market where the plaintiffs either offer

their services or purchase their goods. They should not

"sacrifice competition in one portion of the economy for

greater competition in another portion[.]" United

States v. Topco Associates, Inc., 405 U.S. 596, 611

(1972). Accordingly, the rule of reason is limited to a

challenged restraint's costs and benefits for only the

injured class. The Court made this clear in National

Society of Professional Engineers:

Contrary to its name, the Rule does not open the

field of antitrust inquiry to any argument in

favor of a challenged restraint that may fall

within the realm of reason. Instead, it focuses

directly on the challenged restraint's impact on

competitive conditions.

*

*

*

[T]he purpose of [antitrust] analysis is to form a

judgment about the competitive significance of

the restraint; it is not to decide whether a policy

favoring competition is in the public interest, or

in the interest of the members of an industry.

Subject to exceptions defined by statute, that

policy decision has been made by the Congress.

435 U.S. at 688, 692. In the wake of Professional

Engineers, a court of appeals applied the rule of reason

to a labor-market restraint in professional sports and

rejected an unbounded rule of reason. Smith v. Pro

Football, Inc., 593 F.2d 1173, 1186 (D.C. Cir. 1978).

From an institutional perspective, the courts

are ill-equipped to engage in a broad cross-market

cost-benefit analysis under the rule of reason. In

consequence, "to make the delicate judgment on the

7

relative values to society of competitive areas of the

economy, the judgment of the elected representatives

of the people is required." Topco, 405 U.S. at 612.

Because such balancing requires evaluating numerous

considerations, the task should be undertaken by

democratically accountable legislators, rather than

claimed by judges. In his concurrence below, Judge

Smith warned against balancing harms and benefits

in separate markets, writing that, to do so, courts

"must—implicitly or explicitly—make value judgments

by determining whether competition in the collateral

market is more important than competition in the

defined market." Pet. App. 64a (No. 20-512). As the

Topco Court recognized, "[p]rivate forces are too

keenly aware of their own interests in making such

decisions and courts are ill-equipped and ill-situated

for such decisionmaking." 405 U.S. at 611.

Under the Ninth Circuit's articulation of the

rule of reason, firms with market power can inflict

harm on sellers through restraints of trade and

monopolization and defend themselves by showing

benefits to another group. This type of balancing

sacrifices sellers' right to a fair, competitive

marketplace in order to serve downstream customers.

The court gave powerful purchasers significant

freedom to disempower workers and other sellers

through restraints of trade so long as they can show

offsetting gains to another group, here viewers of

college sports. As such, firms would be permitted to

maintain their buy-side restraints in partial or full

measure—injuring one group of economic actors in the

name of benefitting another.

In this case, the results are especially perverse.

Under the Ninth Circuit's ruling, colleges are given

broad latitude to deprive athletes of the right to earn

a fair, competitive wage to satisfy the purported

8

preferences of sports fans. This expansive rule of

reason "leads to the abhorrent result of allowing

purchasers of labor to unlawfully exploit one class of

people (in this case, predominantly African American

college athletes) for the purpose of benefiting another,

presumably a more important class of people (the

consumers of college athletics, in particular the

viewers of televised men's football and basketball

games)." Tibor Nagy, The "Blind Look" Rule of Reason:

Federal Courts' Peculiar Treatment of NCAA

Amateurism Rules, 15 Marq. Sports L. Rev. 331, 36667 (2005).

In evaluating the challenged restraint, the

courts below should have limited their rule of reason

analysis to the effects on college basketball and

football players—and not considered the effects on

other groups. Once the college athletes established

their prima facie case, the district court should have

considered only the presumptively illegal restraint's

offsetting benefits to the injured college athletes

themselves. The restraint's supposed benefits to other

groups, such as viewers of college sports, should have

been disregarded. This bounded approach ensures that

the Sherman Act fully protects sellers of goods and

services, such as the college athletes here, from

purchasers' restraints of trade.

Equally important, a rule of reason analysis

does not need to be exhaustive under all

circumstances. Sometimes, it can "be applied in the

twinkling of an eye." Board of Regents, 468 U.S. at 109

n.39. The NCAA's restraints resemble those that have

condemned under an abbreviated rule of reason

9

analysis. Indeed, the NCAA's restraints at issue would

be per se illegal, but for (arguably) Board of Regents.4

The Tenth Circuit affirmed a "quick look"

condemnation of the NCAA's restraints capping the

compensation of assistant coaches in men's basketball.

Law u. National Collegiate Athletic Ass'n, 134 F.3d

1010, 1020 (10th Cir. 1998). Courts have also

invalidated restraints that limit horizontal

competition between actual or potential competitors

without a full rule of reason inquiry. See, e.g.,

Polygram Holding, Inc. u. FTC, 416 F.3d 29, 37 (D.C.

Cir. 2005) ("An agreement between joint venturers to

restrain price cutting and advertising with respect to

products not part of the joint venture looks

suspiciously like a naked price fixing agreement

between competitors, which would ordinarily be

condemned as per se unlawful."). Given the close

resemblance between per se illegal horizontal

agreements and the NCAA's restraints, an

abbreviated rule of reason is warranted here—and

sufficient to invalidate the NCAA's compensation

restrictions. Law, 134 F.3d at 1020.

Contrary to the assertions of the NCAA and its

conferences, this Court has long held that labels such

as "joint venture" cannot immunize horizontal

collusion from the Sherman Act. The relevant question

for courts concerns not' the label but the restraint's

substance. A joint venture is subject to antitrust

scrutiny under Section 1 of the Sherman Act if "the

agreement joins together 'independent centers of

4 Because plaintiffs argue for affirmance based on the lower

courts' rule of reason analysis, no issue of per se condemnation is

raised on this appeal. Thus, for now the NCAA has dodged a

bullet. See, e.g., Anderson v. Shipowners Assn. of Pacific Coast,

272 U.S. 359 (1926).

10

decisionmaking.'" American Needle, Inc. v. National

Football League, 560 U.S. 183, 196 (2010). So, merely

creating a joint venture does not immunize all

arrangements between the parties involved from

antitrust scrutiny. Id. at 199. Rather, "[w]e seek the

central substance of the situation, not its periphery,

and in this pursuit, we are moved by the identity of the

persons who act, rather than the label of their hats."

United States v. Sealy, Inc., 388 U.S. 350, 353 (1967).

Applying this principle, this Court has "repeatedly"

found a Section 1 violation when a single entity was

"controlled by a group of competitors and served, in

essence, as a vehicle for ongoing concerted activity."

American Needle, 560 U.S. at 191.

The NCAA's appeal to "amateurism" is equally

unhelpful to its position. As with its joint venture

argument, by repeating "amateurism" to justify its

restraints on player compensation, the NCAA again

obscures substance with labels. This Court's language

in Board of Regents about amateurism is dictum—an

observation about the character of NCAA intercollegiate

athletics that was not necessary nor relevant to the

holding in the decision. Board of Regents, 468 U.S. at

129 (invalidating restrictions on television

broadcasting of college football games). This dictum is

not nearly enough to displace the antitrust laws.

"[R]epeals by implication are not favored," United

States v. Borden Co., 308 U.S. 188, 198 (1939). See also

California v. FPC, 369 U.S. 482, 485 (1962)

("Immunity from the antitrust laws is not lightly

implied.").

The NCAA's history of trade restraints against

college athletes also offers no defense. Long-standing

violation of the Sherman Act—or of any law for that

matter—is no basis for claiming either immunity or

even a right to more limited legal oversight: "a history

11

of concerted activity does not immunize' conduct from

§ 1 scrutiny." American, Needle, 560 U.S. at 198. The

restraint on competition among potential rivals—here,

competition among NCAA members for athletic

talent—is itself sufficient for antitrust condemnation.

See Palmer v. BRG of Georgia, Inc., 498 U.S. 46, 49-50

(1990) (per curiam) (ruling that market allocation

schemes are illegal "regardless of whether the parties

split a market within which both do business or

whether they merely reserve one market for one and

another for the other.").

If this Court were to allow the NCAA to use

labels and its own history to justify its conduct, the

Sherman Act would become a dead letter. By adopting

benign-sounding labels for their illegal conduct and

invoking their history of lawbreaking as a defense,

firms and associations of firms could unilaterally

exempt themselves from the Sherman Act and other

antitrust laws. Enabling private prerogative to

override federal legislation would make a mockery of

the rule of law. See Timken Roller Bearing Co. v.

United States, 341 U.S. 593, 598 (1951) ("Nor do we

find any support in reason or authority for the

proposition that agreements between legally separate

persons and companies to suppress competition among

themselves and others can be justified by labeling the

project a 'joint venture.' Perhaps every agreement and

combination to restrain trade could be so labeled."),

overruled on other grounds by Copperweld Corp. v.

Independence Tube Corp., 467 U.S. 752 (1984).

Accordingly, when Congress seeks to authorize

competitor coordination otherwise illegal under the

antitrust laws, "it has done so expressly by legislation."

Associated Press v. United States, 326 U.S. 1, 14 (1945)

(emphasis added). This prerogative of Congress should

be respected here.

12

ARGUMENT

I.

The Sherman Act Protects Workers and

Other Sellers from Purchasers' Restraints

of Trade and Monopolistic Practices

The Sherman Act protects sellers of goods and

services from powerful purchasers. In enacting the

law, Congress aimed to safeguard the freedom of

workers, farmers, and other sellers from monopolies

and trusts. See Gregory J. Werden, Monopsony and the

Sherman Act: Consumer Welfare in a New Light, 74

Antitrust L.J. 707, 714 (2007) ("The legislative history

leaves no doubt that Congress intended to protect

sellers victimized by trusts and other conduct within

the scope of the Sherman Act's prohibitions."). Indeed,

because these powerful corporations exploited

farmers, workers, and business proprietors, they were

the principal opponents of the trusts and monopolies

and fought for antitrust legislation at the federal and

state levels in the late nineteenth century. David

Millon, The Sherman Act and the Balance of Power, 61

S. Cal. L. Rev. 1219, 1226 (1988). See generally Hans

B. Thorelli, The Federal Antitrust Policy 143-52

(1955). Given this clear congressional intent and

historical context, this Court has long held that the

antitrust laws protect sellers from buyers' restraints of

trade and monopolization.

Floor remarks from the Sherman Act debates

illustrate Congress's intent to protect sellers. Senator

Sherman condemned the trusts for their power over

both buyers and sellers: "They regulate prices at their

will, depress the price of what they buy and increase

the price of what they sell." 21 Cong. Rec. 2461 (1890).

Senator George, a leading proponent of antitrust

legislation, similarly attacked the trusts' power as

both purchasers and sellers:

13

They operate with a double-edged sword. They

increase beyond reason the cost of the

necessaries of life and business and they

decrease the cost of raw material, the farm

products of the country. They regulate prices at

their will, depress the price of what they buy

and increase the price of what they sell.

21 Cong. Rec. 1768 (1890). See also 21 Cong. Rec. 2457

(1890) (remarks of Sen. Sherman) (A trust can

"commann the price of labor without fear of strikes,

for in its field it allows no competitors.").

Reflecting this legislative interest in the

autonomy and well-being of sellers, members of

Congress repeatedly cited the beef trust for its

dominance over both ranchers and consumers. The

Senate even established a special committee to

investigate it. John B. Kirkwood, The Essence of

Antitrust: Protecting Consumers and Small Suppliers

from Anticompetitive Conduct, 81 Fordham L. Rev.

2425, 2435 (2013). Addressing the power of the beef

trust, Representative Taylor asserted, "This monster

robs the farmer on the one hand and the consumer on

the other." 21 Cong. Rec. 4098 (1890). In a similar

spirit, Senator Allison observed that "there is a

combination in the city of Chicago which not only

keeps down the price of cattle upon the hoof, but also .

. . make[s] the consumers of beef pay a high price for

that article." 21 Cong. Rec. 2470 (1890).

In accordance with Congress's intent, this

Court, since the early years of the Sherman Act, has

held that the law protects sellers from restraints of

trade and monopolistic practices. In Swift & Co. v.

United States, 196 U.S. 375 (1905), the Court affirmed

the liability of stockyard owners who had collusively

suppressed the price of cattle paid to ranchers. The

14

Court also condemned a cartel of shipping employers

for suppressing wages. Anderson v. Shipowners' Ass'n

of Pacific Coast, 272 U.S. 359, 362, 365 (1926).

In a subsequent buyer-side price-fixing case, the

Supreme Court reiterated that the Sherman Act

protects both purchasers and sellers:

The statute does not confine its protection to

consumers, or to purchasers, or to competitors,

or to sellers. . . . The Act is comprehensive in its

terms and coverage, protecting all who are made

victims of the forbidden practices by whomever

they may be perpetrated.

Mandeville Island Farms, Inc. v. American Crystal

Sugar Co., 334 U.S. 219, 236 (1948) (emphasis added).

Applying this principle of protecting all victims

of antitrust violations, including sellers, this Court

held that a football player-coach who alleged a group

boycott of his services had the right to take his claim

to trial. Radovich v. National Football League, 352

U.S. 445, 453-54 (1957). Two years later, the Court

affirmed a judgment holding that a boxing association

had improperly monopolized the market for

championship contests by imposing exclusivity

contracts on the leading fighters. International Boxing

Club of New York, Inc. v. United States, 358 U.S. 242,

262-63 (1959).

The Sherman Act's protection of sellers has not

diminished over time, as seen in more recent decisions.

In a predatory bidding case, the Court recognized

buyer-side power as symmetric with seller-side power:

"Monopsony power is market power on the buy side of

the market. As such, a monopsony is to the buy side of

the market what a monopoly is to the sell side and is

sometimes colloquially called a 'buyer's monopoly."'

15

Weyerhaeuser Co. v. Ross-Simmons Hardwood Lumber

Co., 549 U.S. 312, 320 (2007) (citations omitted).

And in a 2019 decision, this Court re-iterated

the antitrust protection of sellers, recognizing that a

monopolistic intermediary inflicts distinct injuries on

purchasers and sellers. Both have the right to recover

antitrust damages from the monopolist:

[S]ome downstream iPhone consumers have

sued Apple on a monopoly theory. And it could

be that some upstream app developers will also

sue Apple on a monopsony theory. In this

instance, the two suits would rely on

fundamentally different theories of harm and

would not assert dueling claims to a common

fund . . . .

Apple Inc. v. Pepper, 139 S. Ct. 1514, 1525 (2019).

Applying these precedents, the lower courts

have held that the Sherman Act protects sellers. The

Tenth Circuit struck down NCAA rules that capped

compensation for assistant coaches in men's

basketball, writing that a buyer-side "cartel ultimately

robs the suppliers of the normal fruits of their

enterprises." Law v. National College Athletic Ass'n,

134 F.3d 1010, 1022 (10th Cir. 1998). Similarly, the

Ninth Circuit described buyer-side collusion as

follows:

When horizontal price fixing causes buyers to

pay more, or sellers to receive less, than the

prices that would prevail in a market free of the

unlawful trade restraint, antitrust injury

occurs. This is seen most often in claims by

overcharged buyers; as to underpaid sellers it is

less common in the reported cases, but is

equally true.

16

Knevelbaard Dairies v. Kraft Foods, Inc., 232 F.3d 979,

988 (9th Cir. 2000). See also, e.g., Todd v. Exxon Corp.,

275 F.3d 191, 201 (2d Cir. 2001) (Sotomayor, J.) ("[A]

horizontal conspiracy among buyers to stifle

competition is as unlawful as one among sellers.");

West Penn Allegheny System, Inc. v. UPMC, 627 F.3d

85, 105 (3d Cir. 2010) ("Highmark's improperly

motivated exercise of monopsony power . . . was

anticompetitive and cannot be defended on the sole

ground that it enabled Highmark to set lower

premiums on its insurance plans."); Vogel v. American

Society of Appraisers, 744 F.2d 598, 601 (7th Cir. 1984)

(Posner, J.) ("[B]uyer cartels, the object of which is to

force the prices that suppliers charge the members of

the cartel below the competitive level, are illegal per

se.").

II.

The Ninth Circuit's Application of the

Rule of Reason Subverts the Sherman

Act's Protection of Workers and Other

Sellers and Permits Courts to Engage in

Unbounded Balancing

The Ninth Circuit's application of the rule of

reason undermines the Sherman Act's protection of

sellers and is inconsistent with this Court's guidance

on applying the rule of reason. The court of appeals

compared the proven harms of the challenged

restraints to the college athletes, sellers of their

services, against the purported benefits to viewers of

college sporting events, consumers in this case. By

engaging in this cross-market balancing, the court of

appeals undercut the Sherman Act's protection of

sellers.5 This type of balancing also contravenes this

This case bears no factual resemblance to Ohio v. American

Express Co., 138 S. Ct. 2274 (2018), in which this Court permitted

a rule of reason analysis that took account of effects on two

5

17

Court's directive that the rule of reason "does not open

the field of antitrust inquiry to any argument in favor

of a challenged restraint that may fall within the

realm of reason." National Society of Professional

Engineers v. United States, 435 U.S. 679, 688 (1978).

A. The Ninth Circuit's Application of the

Rule. of Reason Subordinates Sellers'

Interests to Customers' Interests

While holding that the NCAA's restraints

injured college athletes, the Ninth Circuit weighed

this injury to the athletes against asserted benefits to

viewers of college sports. To be sure, the court did not

credit most of the NCAA's proffered benefits to viewers

(or the athletes). However, the court did conclude the

NCAA established that sports fans value college

sports, in part, because of the tight restrictions on

player compensation, in contrast to professional sports

in which caps on player compensation are limited or

non-existent. In other words, the court balanced the

demonstrated injury to college athletes against the

benefit to viewers of college sports.

Under the Ninth Circuit's formulation of the

rule of reason, firms with market power can inflict

harm on sellers through restraints of trade and

monopolization and defend by showing offsetting

benefits to another group, such as downstream

purchasers of a different product altogether. Firms can

be found liable, but subject to only a limited remedy,

as the NCAA was here. Powerful purchasers would

distinct groups affected by the restraint. Unlike American

Express, the NCAA does not "facilitate a single, simultaneous

transaction"—in American, Express, between cardholders and

merchants—in a "transaction" created "simultaneous Ely]" each

and every time the restraint operated. Id. at 2286.

18

have significant freedom to disempower workers and

other sellers and deprive them of a fair, competitive

income through restraints of trade so long as they

could show offsetting gains to their customers or

another group. Equally troubling, under this

formulation of the rule of reason, defendants can

potentially escape liability entirely if they can

demonstrate that their restraint's benefits to another

group exceed the harm to workers or other sellers.

Instead of protecting college athletes in full

measure, the Ninth Circuit subordinated their

interests to the interests of sports fans. This Court has

made clear that the Sherman Act protects workers and

other sellers of services just as much as it protects

customers and end-user consumers. See Part I, supra.

The court of appeals' decision, however, grants

significant latitude to firms to injure sellers through

restraints of trade, provided that they can establish

offsetting benefits to another group.

This type of balancing sacrifices sellers' right to

a fair marketplace in order to serve buyers' purported

preferences. In his concurrence, Judge Smith wrote

that this balancing "leave [s] Student-Athletes with

little recourse under the antitrust laws. . . . and thus

denie[s] the freedom to compete and, in turn, of

compensation they would receive in the absence of the

restraints." Pet. App. 66a (No. 20-512). Here, the

results are especially indefensible. Under the Ninth

Circuit ruling, colleges are given broad latitude to

deprive athletes of the right to earn a fair, competitive

wage to satisfy the supposed preferences of members

of the viewing public. The expansive rule of reason

"leads to the abhorrent result of allowing purchasers

of labor to unlawfully exploit one class of people (in

this case, predominantly African American college

athletes) for the purpose of benefiting another,

19

presumably a more important class of people (the

consumers of college athletics, in particular the

viewers of televised men's football and basketball

games)." Tibor Nagy, The "Blind Look" Rule of Reason:

Federal Courts' Peculiar Treatment of NCAA

Amateurism Rules, 15 Marq. Sports L. Rev. 331, 36667 (2005).

B. This Court Has Directed the Lower

Courts to Refrain from Unbounded

Cost-Benefit Analysis Under the Rule

of Reason

The Ninth Circuit's decision also is contrary to

this Court's directive against broad, cross-market costbenefit analysis under the rule of reason. Rejecting

judicial measuring of social debits and credits through

the Sherman Act, this Court wrote: "If a decision is to

be made to sacrifice competition in one portion of the

economy for greater competition in another portion

this too is a decision that must be made by Congress

and not by private forces or by the courts." United

States v. Topco Associates, Inc., 405 U.S. 596, 611

(1972).

To assure the Sherman Act's protection of

multiple classes, the rule of reason is restricted to a

challenged restraint's costs and benefits for only the

affected class in the relevant market. The rule of

reason's lens is circumscribed, not unbounded:

Contrary to its name, the Rule does not open the

field of antitrust inquiry to any argument in

favor of a challenged restraint that may fall

within the realm of reason. Instead, it focuses

directly on the challenged restraint's impact on

competitive conditions.

*

*

20

[T]he purpose of [antitrust] analysis is to form a

judgment about the competitive significance of

the restraint; it is not to decide whether a policy

favoring competition is in the public interest, or

in the interest of the members of an industry.

Subject to exceptions defined by statute, that

policy decision has been made by the Congress.

Professional Engineers, 435 U.S. at 688, 692.6

Shortly after Professional Engineers, the D.C.

Circuit applied the rule of reason to a labor market

restraint in professional sports and rejected

unbounded rule of reason analysis. Smith v. Pro

Football, Inc., 593 F.2d 1173, 1186 (D.C. Cir. 1978).

Although Pro Football's draft was "anticompetitive in

its effect on the market for players' services," the

league argued it produced "playing-field equality

among the teams," "better entertainment for the

public," "higher salaries for the players," and

"increased financial security for the clubs." Id. at 1186.

Because these supposedly "procompetitive" benefits

did "not increase competition in the economic sense of

encouraging others to enter the market and to offer the

product at lower cost," id., they could not be balanced

6 Consider this Court's adoption of the rule of reason for vertical

restraints governing retail markets. These decisions have not

broadened the scope of the rule of reason. Instead, the Court

considers the relevant costs and benefits borne by or accruing to

the directly affected group—merchants or consumers affected by

the vertical restraints. See, e.g., Continental T.V., Inc. v. GTE

Sylvania Inc., 433 U.S. 36, 54-59 (1977) (holding vertical nonprice restraints subject to the rule of reason and, in effect,

requiring gains in interbrand competition to be weighed against

reduction in intrabrand competition in the relevant consumer

product markets); Leegin Creative Leather Products, Inc. v.

PSKS, Inc., 551 U.S. 877, 897-99 (2007) (same with respect to

minimum vertical price restraints).

21

against the draft's anticompetitive effect. "This," the

court of appeals wrote, was "precisely the type of

argument that the Supreme Court only recently ha[d]

declared to be unavailing" in Professional Engineers.

Smith, 593 F.2d at 1186.

Likewise, in evaluating the legality of mergers

under the Clayton Act, this Court has restricted the

scope of analysis. The Court held that "a merger the

effect of which may be substantially to lessen

competition is not saved because, on some ultimate

reckoning of social or economic debits and credits, it

may be deemed beneficial." United States v.

Philadelphia National Bank, 374 U.S. 321, 371 (1963)

(citation omitted).

From an institutional perspective, the courts

are ill-equipped to engage in a broad cost-benefit

analysis through the rule of reason. This Court has

recognized that such balancing requires a weighing of

values and evaluating economic, political, and social

considerations—a task appropriately reserved for

legislators:

If a decision is to be made to sacrifice

competition in one portion of the economy for

greater competition in another portion this too

is a decision that must be made by Congress and

not by private forces or by the courts. Private

forces are too keenly aware of their own

interests in making such decisions and courts

are ill-equipped and ill-situated for such

decisionmaking. To analyze, interpret, and

evaluate the myriad of competing interests and

the endless data that would surely be brought

to bear on such decisions, and to make the

delicate judgment on the relative values to

society of competitive areas of the economy, the

22

judgment of the elected representatives of the

people is required.

Topco, 405 U.S. at 611-12. This type of cost-benefit

analysis also introduces significant administrative

difficulties and risks severely weakening antitrust

law. Daniel A. Crane, Balancing Effects Across

Markets, 80 Antitrust L.J. 397, 409-10 (2015). See also

Rebecca Haw Allensworth, The Commensurability

Myth in Antitrust, 69 Vand. L. Rev. 1, 21-22 (2016)

(observing the difficulties of balancing costs and

benefits to different groups).

In his concurrence below, Judge Smith, warned

that this balancing is inevitably fraught with peril.

Courts "must—implicitly or explicitly—make value

judgments by determining whether competition in the

collateral market is more important than competition

in the defined market." Pet. App. 64a (No. 20-512).

Likewise, the D.C. Circuit rejected open-ended costbenefit analysis in condemning professional football's

draft: "The draft's 'anticompetitive evils,' in other

words, cannot be balanced against its `procompetitive

virtues,' and the draft be upheld if the latter outweigh

the former." Smith, 593 F.2d at 1186.

Through an unbounded rule of reason, the

district court, and thereafter the Ninth Circuit, made

policy choices appropriately reserved for legislators

who, unlike judges, are democratically accountable. In

balancing the restraint's harms to college athletes

against its benefits to viewers of college sports, the

court of appeals improperly chose "to sacrifice

competition in one portion of the economy for greater

competition in another portion[,]" Topco, 405 U.S. at

611, and usurped legislative prerogatives.

23

III. The Ninth Circuit Should Have

Considered Only the Restraint's Harms

and Benefits to College Basketball and

Football Players

The court of appeals should have limited its rule

of reason analysis of the NCAA's restraints to the

effects on college basketball and football players. This

approach ensures that the Sherman Act fully protects

sellers, as this Court's precedents establish. It also

ensures that the federal courts avoid making openended judgments that they are ill-equipped to make

and that are appropriately entrusted to the

legislature. Indeed, because the NCAA's restraints—

horizontal limits on player compensation—amount to

wage-fixing agreements among employers, they

should be summarily condemned under the rule of

reason in the "twinkling of an eye." National Collegiate

Athletic Ass'n v. Board of Regents of Univ. of Okla., 468

U.S. 85, 109 n.39 (1984).

Once the college athletes established a prima

facie case, the court of appeals should have evaluated

only offsetting benefits of the restraints, if any, to

them. The court should have confined its analysis to

credible benefits in the affected market—the market

for college basketball and football players' services. It

should not have considered the NCAA's argument that

the challenged restraints benefit college sports fans.

The question whether restraints on college athletes'

compensation increase, for example, the value of

college sports to viewers falls outside of a proper rule

of reason analysis.?

7 While the college athletes presented three relevant labor

markets, showed that the petitioners dominated all three

markets, and demonstrated that the NCAA's restraints harmed

them, the college athletes could have also made out a prima facie

24

A bounded rule of reason analysis ensures that

the Sherman Act protects "all who are made victims" of

antitrust violations, including sellers of services such as

the college athletes here. Mandeville Island Farms, 334

U.S. at 236 (emphasis added). This approach would

prevent the NCAA and other powerful buyers from

injuring college athletes and other sellers through

restraints of trade and overcoming presumptive

illegality by showing benefits to another group. By

considering only harms and benefits to sellers, this rule

of reason analysis places sellers on an equal footing

with buyers under the Sherman Act—as Congress

intended, and as this Court's precedents hold it does. As

so bounded, the rule of reason not only "protect[s] the

economic freedom of participants in the relevant

market[,]" Knevelbaard Dairies, 232 F.3d at 988

(quoting Associated General Contractors of Cal., Inc. v.

Cal. State Council of Carpenters, 459 U.S. 519, 538

(1983)), but also entrusts broader economic, social, and

political judgments to Congress and state legislatures.

A rule of reason analysis need not be exhaustive

under all circumstances, but can, sometimes, "be

applied in the twinkling of an eye." Board of Regents,

468 U.S. at 109 n.39. See also California Dental

Association v. FTC, 526 U.S. 756, 781 (1999). The

NCAA's restraints resemble those condemned with an

case by showing the NCAA's restraints had adverse effects, such

as reduced compensation for college basketball and football

players, in the labor markets. See FTC v. Ind. Federation of

Dentists, 476 U.S. 447, 460-61 (1986) (citations omitted) ("Since

the purpose of the inquiries into market definition and market

power is to determine whether an arrangement has the potential

for genuine adverse effects on competition, proof of actual

detrimental effects, such as a reduction of output, can obviate the

need for an inquiry into market power, which is but a surrogate

for detrimental effects.").

25

abbreviated analysis under the rule of reason. The

Tenth Circuit affirmed a "quick look" condemnation of

the NCAA's restraints capping the compensation of

assistant coaches in men's basketball. Law, 134 F.3d

at 1020, 1024. Other courts have similarly invalidated

restraints that limit horizontal competition between

actual or potential competitors without a full reason of

reason inquiry. For instance, the D.C. Circuit stated

that "[a]n agreement between joint venturers to

restrain price cutting and advertising with respect to

products not part of the joint venture looks

suspiciously like a naked price fixing agreement

between competitors, which would ordinarily be

condemned as per se unlawful." Polygram Holding,

Inc. v. FTC, 416 F.3d 29, 37 (D.C. Cir. 2005).

Given the close resemblance between these per

se illegal horizontal agreements and the NCAA's

restraints, at most an abbreviated rule of reason

analysis is warranted here. See Law, 134 F.3d at 1020

(applying quick look rule of reason "where the plaintiff

shows that a horizontal agreement to fix prices exists,

that the agreement is effective, and that the price set

by such an agreement is more favorable to the

defendant than otherwise would have resulted from

the operation of market forces.").8

IV.

The NCAA Cannot Evade the Sherman

Act by Using Special Labels or Citing

A History of Trade Restraints

The NCAA and its conferences invoke "joint

venture," "amateurism," and the history of the

intercollegiate system to defend their existing

8 Indeed, but for the framing of the issues in this Court and an

expansive reading of dictum in Board of Regents, the NCAA's

restraints should fall as per se illegal. See p. 9, n.4, supra.

26

restraints of trade and immunize them from the

antitrust laws. But these arguments are unavailing.

Antitrust defendants cannot use special labels or

invoke a history of violation to justify restraining trade.

If this Court were to adopt the position of the NCAA

and its conferences, it would empower corporations to

unilaterally escape the prohibitions of antitrust law or

to limit its application merely by using special labels.

Exemptions are the province of Congress—not of

private parties or the federal judiciary.

This Court has long held that labels such as

"joint ventures" cannot immunize horizontal collusion

from the Sherman Act. The relevant question for courts

is substance, not labels. A joint venture is subject to

Sherman Act scrutiny if "the agreement joins together

`independent centers of decisionmaking."' American

Needle, Inc. v. National Football League, 560 U.S. 183,

196 (2010). As the Court wrote in American Needle,

which involved the National Football League and

concerted action among its teams: "Any joint venture

involves multiple sources of economic power

cooperating to produce a product. . . . But that does not

mean that necessity of cooperation transforms

concerted action into independent action." Id. at 199.

Accordingly, in deciding whether parties have

run afoul of the Sherman Act, courts "seek the central

substance of the situation, not its periphery, and in

this pursuit, we are moved by the identity of the

persons who act, rather than the label of their hats."

United States v. Sealy, Inc., 388 U.S. 350, 353 (1967).

Thus, on many occasions this Court has applied

antitrust scrutiny where a single entity was

"controlled by a group of competitors and served, in

essence, as a vehicle for ongoing concerted activity."

American Needle, 560 U.S. at 191.

27

The NCAA's appeal to "amateurism" is equally

unhelpful to properly resolving this case. Like the joint

venture label, "amateurism" obscures, rather than

clarifies, the substance of the NCAA's restraints on

player compensation. These restraints are the product

of "ongoing concerted activity" by competitors on

player compensation—and, therefore, typically

condemned as illegal under the per se rule or, at most,

under a "quick look" analysis. And they are not rescued

by this Court's language in Board of Regents about

amateurism, which is dictum—an observation about

the character of NCAA intercollegiate athletics that

was not necessary nor relevant to the decision's

holding. Board of Regents, 468 U.S. at 129

(invalidating rules restricting television broadcasting

of college football games). This dictum is not nearly

enough to displace the antitrust laws.

" [R] ep e als by implication are disfavored,"

United States v. Borden Co., 308 U.S. 188, 198 (1939),

and antitrust immunity "is not lightly implied."

California v. FPC, 369 U.S. 482, 485 (1962). The

presumption against repeal by 'implication is strong

when the potential conflict is between the federal

antitrust laws and a federal regulatory scheme. "Only

where there is a plain repugnancy between the

antitrust and regulatory provisions will repeal be

implied." Gordon v. New York Stock Exchange, Inc.,

422 U.S. 659, 682 (1975) (cleaned up). This

presumption should be absolute when a private

litigant like the NCAA seeks to evade the antitrust

laws by claiming a conflict between the federal

antitrust laws and its own private contractual scheme.

Similarly, the NCAA's long history of trade

restraints against college athletes is no defense. A longstanding violation of the Sherman Act—or of any law

for that matter—is no basis for claiming immunity or

28

even a right to more limited legal scrutiny: "a history of

concerted activity does not immunize conduct from § 1

scrutiny." American Needle, 560 U.S. at 198. The

restraint on competition among potential rivals—here,

competition among NCAA members for athletic

talent—is itself sufficient for antitrust condemnation.

As this Court has held, market allocation agreements

are per se illegal, "regardless of whether the parties

split a market within which both do business or

whether they merely reserve one market for one and

another for the other." Palmer v. BRG of Georgia, Inc.,

498 U.S. 46, 49-50 (1990) (per curiam). See also

Freeman v. San, Diego Ass'n of Realtors, 322 F.3d 1133,

1149 (9th Cir. 2003) ("Absence of actual competition

may simply be a manifestation of the anticompetitive

agreement itself."); City of Mt. Pleasant v. Associated

Electric Co-op., Inc., 838 F.2d 268, 276 (8th Cir. 1988)

(holding that, in cases under Section 1 of the Sherman

Act, a critical inquiry is whether "any two of the

defendants are, or have been, actual or potential

competitors") (emphasis added).

If this Court were to allow the NCAA to use

labels and its own history to justify its conduct, the

Sherman Act would become a dead letter. Firms and

associations of firms could unilaterally exempt

themselves from the Sherman Act and other antitrust

laws by adopting benign-sounding labels for their

illegal conduct and invoking their history of

lawbreaking. Enabling private prerogative to override

federal legislation would make a mockery of the rule of

law. Timken Roller Bearing Co. v. United States

recognized as much:

Nor do we find any support in reason or

authority for the proposition that agreements

between legally separate persons and

companies to suppress competition among

29

themselves and others can be justified by

labeling the project a 'joint venture.' Perhaps

every agreement and combination to restrain

trade could be so labeled.

341 U.S. 593, 598 (1951), overruled on other grounds

by Copperweld Corp. v. Independence Tube Corp., 467

U.S. 752 (1984). Because "[p]rivate forces are too

keenly aware of their own interests in making such

decisions," Topco, 405 U.S. at 611, they cannot be

entrusted with legislative judgments.

The scope of the antitrust laws is a matter for

Congress to decide. When Congress wishes to

authorize competitor coordination otherwise

impermissible under the antitrust laws, "it has done

so expressly by legislation." Associated Press v. United

States, 326 U.S. 1, 14 (1945). This prerogative of

Congress should be respected here. See also Andrus v.

Glover Construction Co., 446 U.S. 608, 616-17 (1980)

("Where Congress explicitly enumerates certain

exceptions to a general prohibition, additional

exceptions are not to be implied, in the absence of

evidence of a contrary legislative intent.").

CONCLUSION

The Sherman Act protects sellers of goods and

services, including workers, from buyers' restraints of

trade. In applying the rule of reason, the Ninth Circuit

subverted the Sherman Act's protection of sellers of

goods and services and disregarded this Court's

guidance against turning the rule of reason into an

unbounded social cost-benefit analysis. While the

Ninth Circuit correctly affirmed the NCAA's Sherman

Act liability, it should have evaluated only the

challenged restraint's harms and benefits to the

college athletes—and not considered its effects on

30

other groups. Because the court of appeals concluded

that the challenged restraints had no benefit to college

basketball and football players, the court should have

enjoined all NCAA compensation restraints and not

searched for a less restrictive alternative under the

rule of reason.

Dated: March 10, 2021

Respectfully submitted,

JAY L. HIMES

Counsel of Record

LABATON SUCHAROW LLP

140 Broadway

New York, NY 10005

(212) 907-0700

jhimes@labaton.com

SANDEEP VAHEESAN

OPEN MARKETS INSTITUTE

1440 G Street, NW

Washington, DC 20005

NAJAH FARLEY

NATIONAL EMPLOYMENT

LAW PROJECT

90 Broad Street, Suite 1100

New York, NY 10004

MARKA PETERSON

STRATEGIC ORGANIZING

CENTER

1900 L Street, NW Suite 900

Washington, DC 20036

Counsel for Amici Curiae