Of Labor, Antitrust, and Why the Proposed <i>House</i> Settlement Will Not Solve the NCAA’s Problem

The National Collegiate Athletic Association (NCAA) recently settled three antitrust lawsuits. With a significant payout, it hopes to put its antitrust worries behind it. In doing so, the NCAA seeks to follow in the footsteps of the National Football League (NFL), which has enjoyed thirty years of labor peace. But there is a big difference between these two situations.

The NFL’s 1993 settlement in White v. National Football League was shielded from antitrust scrutiny by the nonstatutory labor exemption, which encourages collective bargaining activity. No such exemption protects the NCAA’s settlement. This Essay explains why the NCAA cannot establish a salary cap through its antitrust settlement. If it wishes to do so, it needs to take a page out of the NFL’s handbook: recognize a players union and engage in collective bargaining over the terms of participating in college sports.