DOJ critical of NCAA on antitrust stance
NCAA President Mark Emmert on Saturday said in a letter to the Justice Department’s antitrust division leader that he has “strongly recommended” to association governing groups that they delay votes scheduled for this week on proposed changes to rules regarding athletes’ ability to transfer and to make money from the use of their names, images and likenesses.
Emmert said in the letter the association believes its rules are “fully compliant” with antitrust law but that when it considers changes it takes input from many sources and that it will now seek to get the Justice Department’s before moving forward.
On Saturday evening, Assistant Attorney General Makan Delrahim offered a sharply worded reply in which he not only appeared to take issue with Emmert’s assessment of the association’s antitrust compliance but also raised the issue of how that situation impacts athletes of color and from challenging socioeconomic circumstances. He seemed to criticize the NCAA not for delaying a vote on the current transfer and name, image and likeness rules proposals, but for not developing proposals that would allow the NCAA to comply with antitrust law.
“As I indicated in my correspondence to Dr. Emmert, the NCAA, as a collective rule-making body is not immune from the antitrust laws,” Delrahim said in an email to USA TODAY Sports. “Its rules must be the least restrictive possible so as not to illegally harm competition.
“The Division welcomes further discussion of these matters with the NCAA, however, it is troubling that the NCAA continues its process delays to avoid addressing antitrust concerns to the detriment of college athletes, many of whom come from African American and other diverse communities or come from economically disadvantaged backgrounds.”
Emmert’s letter was in response to a letter sent to him Friday by Delrahim – and first reported by USA TODAY Sports – that expressed strong concerns about the association’s direction on rules regarding athletes’ ability to transfer and to make money from the use of their names, images and likenesses (NIL).
Proposed changes in transfer and NIL rules have been scheduled to be on the agenda of Monday’s meeting of the Division I Council and Thursday’s meeting of the Division I board of directors. But Delrahim said in his letter that one part of the NCAA’s prospective approach to regulating athletes’ involvement in NIL deals “may raise concerns under the antitrust laws.” Delrahim also raised concerns about aspects of the NCAA’s existing transfer rules that are not being addressed by the proposed rules changes that have been up for consideration this week.
Emmert’s response was first reported on by The New York Times, and a copy of his letter subsequently was obtained by USA TODAY Sports.
After thanking Delrahim for his letter and saying the NCAA appreciates the Justice Department’s interest, Emmert wrote:
“The NCAA and its member schools are committed to ensuring that NCAA rules comply with all applicable laws, including federal antitrust law. We believe, as courts have regularly held, that our current amateurism and other rules are indeed fully compliant. Whenever we consider revisions to the rules, however, we of course receive input from many interested parties, and we welcome your invitation to consult with the Department so that we can hear and fully understand its views as well.
“I have strongly recommended to the NCAA governing bodies that it delay the upcoming votes on the issues you describe and Donald Remy, the NCAA’s Chief Operating Officer and Chief Legal Officer, has contacted your office to schedule a mutually convenient time to meet with you and your staff.”