The NCAA Can’t Outrun Its Antitrust Problem

The National Collegiate Athletic Association has an antitrust problem. And it’s not going away. The association’s best shot at dispelling the morass faded on Friday when the Senate failed to vote on the Protect College Sports Act, a bill that, among other things, grants the NCAA an antitrust exemption. The earliest time senators will consider it again will be in September. After that, the midterm frenzy kicks in, and who knows when the bill will be back on the floor? The antitrust carve-out would allow colleges to act and negotiate as a collective but is far from a silver-bullet solution. But if it’s unsuccessful, the NCAA will continue to get pummeled with lawsuits.

At the same time, not passing the act could open a seat at the table for student athletes.

Two cases capture the scale of the problem and the NCAA’s legal battering so far: NCAA v. Alston and NCAA v. House. These lawsuits relate to the association’s restrictions on athlete eligibility and compensation. The rules have the greatest impact on football and basketball players in Division I, where all the money is. Collegiate sports are built on the service of unpaid college athletes because for decades the NCAA has claimed it is an amateur league. But judges take a different view: By not compensating athletes while raking in billions, the NCAA is denying students a fair-market value for their labor.

Supreme Court Justice Brett Kavanaugh summed up this perspective in his 2021 concurring opinion in the Alston case. “Those enormous sums of money flow to seemingly everyone except the student athletes. College presidents, athletic directors, coaches, conference commissioners, and NCAA executives take in six- and seven-figure salaries,” he wrote. “Colleges build lavish new facilities. But the student athletes who generate the revenues, many of whom are African American and from lower-income backgrounds, end up with little or nothing.”

The Supreme Court ruling in NCAA v. Alston barred the association from restricting education-related benefits, such as scholarships for athletes. But soon came NCAA v. House, which combined three antitrust cases into one. The athletes argued the NCAA violated antitrust rules by restricting the amount of money they could earn for their name, image and likeness in television broadcasts, video games and third-party endorsements. The NCAA settled the case in 2025 and agreed to pay $2.8 billion in lost NIL money to athletes. It also let colleges share a certain percentage of their revenue streams (media rights, ticket sales, sponsorship and licensing, etc.) with players and set NIL payments from third parties, such as booster clubs, at a “fair market value.”

As quickly as the case was settled, a group of female athletes appealed the decision, saying that the 90 percent of the back damages set to be distributed to football and men’s basketball players violated Title IX. In June, 17 states filed an antitrust suit against the NCAA and its $20.5 million cap on revenue-sharing from the House settlement, arguing the terms violated their own laws on NIL payments.

This antitrust quagmire was the backdrop for a webcast discussion I led earlier this week with Karen Weaver, an adjunct assistant professor at the University of Pennsylvania Graduate School of Education and the academic director of the New Athletics Enterprise: Leadership, Risk, and Institutional Strategy certificate program at Penn, and Makan Delrahim, a former assistant attorney general for the antitrust division of the U.S. Department of Justice.

“It seems like every time we have a confirmed agreement, something else is coming up,” said Weaver, who referenced yet more antitrust litigation: U.S. District Judge Charlotte N. Sweeney ruled Monday to deny the NCAA’s stay on her nationwide injunction permitting thousands of Division I college athletes to play another season.

“We’ve got a real issue with what’s going to happen to the athletes who could get to come back for a fifth year, as well as the new folks that are coming in, either as transfers or freshmen,” Weaver said of the ruling, adding that the House settlement capped rosters for every Division I school that “opted in.”

Delrahim pointed out that the same antitrust conflicts surface elsewhere for the NCAA. In negotiating media rights with ESPN, ABC and others, the NCAA has been accused of stifling competition. And as the NCAA’s power erodes, both financially and in court, the Power Four conferences—the SEC, Big Ten, Big 12 and ACC—step in to inherit the influence. “They will become the targets because they will now start controlling things,” Delrahim said. “The question then becomes: Will they have the market power? Are they subject to the same Alston rules? Or because they’re not all over the country like the NCAA and only a small region, do they not have the same market power?”

For Delrahim, the Protect College Sports Act, or something like it, is the best way out of the antitrust death spiral in collegiate athletics. “I really do think the only way to solve this is through a congressional response on a nationwide basis, not through piecemeal litigation that goes on for years.”

Weaver is less certain. “The question I would ask is: Is Congress the right place for us to go to solve our problems? I think that’s a real question that higher ed leaders should be thinking about right now.” Weaver suggested a plan B, an out that wouldn’t give colleges an antitrust reprieve but would release some pressure: Allow students to bargain collectively. Student welfare is the highest priority in the classroom and off the field, so why would colleges treat athletes differently when they’re on the field generating revenue, she said. “One of the things that higher ed leaders need to think about is how is our athletic experience is consistent with our academic experience. Who better to ask than the athletes as to what their needs are?”

Weaver continued, “Even if it’s just athlete health and wellness, negotiating the standards around that, so that everybody has to operate in the same way with athlete care—that’s a good start.”

The NCAA’s refusal to pay athletes because they’re amateurs no longer reflects the reality of college sports. And by acting as a single bloc in negotiating standards, NIL payments, scholarships and media rights, the NCAA runs into antitrust law at every turn. The Protect College Sports Act could shelter the organization from antitrust challenges, but it would take agency away from student athletes. Collective bargaining could give athletes greater voice in how their time and bodies serve the athletics enterprise, but college leaders are fearful of the costs.

Until a solution is found, legal cases will keep piling up, and the only winners will be the antitrust lawyers.