Friday, December 5, 2014

O'Bannon, the Rule of Reason, and the Less Restrictive Alternative Test

Applied Reason to College Athletics

Earlier this year, in O'Bannon et al. v. NCAA, the U.S. District Court for the Northern District of California invalidated the NCAA's policy governing compensation that colleges and universities may provide football and basketball players. (Here is a link to the decision.)  That policy allowed schools to provide players a full grant-in-aid, namely, full tuition, fees, room and board, and the cost of textbooks.  Moreover, the policy also allows schools to provide additional compensation to the neediest student athletes --- those who qualify for federal Pell grants.   

Ordinarily, agreements between rivals regarding the compensation paid to input suppliers are unlawful per se.  Ditto for agreements that govern non-price aspects of the relationship between rivals and input suppliers.  If Ford, Toyota, Honda and General Motors agreed on the salaries or working conditions provided their engineers, for instance, courts would rightly declare the arrangement a buyers' cartel and condemn it as unlawful per se under the Sherman Act.  Ditto if, say, several silicon valley firms or an academic trade association agreed not to hire or "poach" individuals employed by rivals

In NCAA v. Board of Regents of the University of Oklahoma, 468 U.S. 85 (1984), the Supreme Court rejected the analogy between the NCAA's policy on player compensation and the sort of buyers' cartel just described.  As explained in much greater detail here, the Court, in an opinion by Justice John Paul Stevens (pictured above), recognized that, unlike buyer cartels, the NCAA is a legitimate joint venture, the existence of which is necessary to produce a product, college football, that many consumers find attractive.  The Court also recognized that unbridled rivalry between colleges and universities for student-athletes would transform college athletics into semi-pro athletics, thereby undermining consumer demand for the joint venture product.  Thus, the Court expressly noted that, in order to protect the integrity of this product, members of the NCAA must collectively set limits on player compensation.  In so doing, the Court rejected the "cartel" label for such restraints.  (For additional discussion of the NCAA decision by this blogger, go here.) According to the Court:

"The identification of this 'product' with an academic tradition differentiates college football from and makes it more popular than professional sports to which it might otherwise be comparable such as, for example, minor league baseball.  In order to preserve the character and quality of the 'product,' athletes must not be paid, must be required to attend class, and the like.  And the integrity of the 'product' cannot be preserved except by mutual agreement: if an institution adopted such restrictions unilaterally, its effectiveness as a competitor on the field of play might soon be destroyed.  Thus, the NCAA plays a vital role in enabling college football to preserve its character, and as result enables a product to be marketed which might otherwise be unavailable.  In performing this role, its actions widen consumer choice --- not only the choices available to sports fans but also those available to athletes -- and hence can be viewed as procompetitive."

See NCAA, 468 U.S. at 101-102 (emphasis supplied).  

More technically, the Court essentially held that unbridled competition between NCAA member schools to attract and retain student athletes would result in a market failure and reduce economic welfare, including the welfare of consumers.  Such rivalry, one suspects, could result in six figure salaries for some players at some schools, over and above a full grant-in-aid.  The prospect of such a market failure, the Court believed, distinguished the NCAA's limits on player compensation from otherwise analogous forms of collective wage setting such as the hypothetical agreements between automobile manufacturers mentioned above.  (See this essay by this blogger explaining the role of the market failure paradigm in the antitrust jurisprudence of Justice Stevens, including his opinion in NCAA.) 

The NCAA court did not hold that agreements governing student-athlete compensation are lawful per se.  Instead, such agreements are to be analyzed under Standard Oil's Rule of Reason. After conducting this analysis, the district court in O'Bannon agreed with the NCAA (and the Supreme Court) that the NCAA's limits on student-athlete compensation produce significant procompetitive benefits by, for instance, enhancing consumer demand for college football and basketball.  These benefits, the court apparently assumed, would suffice to justify the restraints.   Nonetheless, the court invalidated the limits, holding that a "less restrictive alternative" would achieve the same benefits.  In particular, the court held that increasing the limit to "cost of attendance" (which includes grant-in-aid plus transportation and supplies), plus $5,000 per year, to be derived from "licensing revenue generated from the use of their names, images, and likenesses during college[,]" would be "less restrictive of competition, while at the same time achieving the same admitted benefits as the current policy.

This blogger has joined a brief amicus curiae by fifteen antitrust scholars taking issue with the district court's application of the less restrictive alternative test.  (Here is a link to the brief.  See here for a story about the brief on ) The brief does not question the role that a properly-applied less restrictive alternative analysis can play in rule of reason analysis.  At the same time, the brief contends that the district court misapplied this test.

Ordinarily the less restrictive alternative test involves identification of a different type of agreement, actually existing somewhere in the marketplace, that produces the same benefits as the agreement under scrutiny.  Thus, in the context of product distribution, courts evaluating vertically-imposed exclusive territories could conceivably conclude that so-called "location clauses" are less restrictive of competition and produce the same benefits in a particular setting as exclusive territories.  Cf. Continental T.V. v. GTE Sylvania, 433 U.S. 36 (1977) (describing location clause and holding that courts should evaluate such restraints under the rule of reason).  However, the O'Bannon court did not identify any such categorically different alternative actually existing in the marketplace.  Instead,  the court simply amended somewhat (upward) the level of compensation that players can potentially receive, without questioning the need for a collectively-set limit on such compensation.

Not surprisingly, then, the brief argues that the district court improperly treated the less restrictive alternative test as a license to substitute its own judgement about appropriate compensation for the judgment of market participants who adopted policies that, according to the court's own findings, produced significant economic benefits. Thus, the district court's approach empowers judges to function as regulatory commissions, recalibrating otherwise reasonable levels of compensation.  Such quasi-regulators would displace beneficial agreements that produce significant economic benefits, simply because the judge believes that a hypothetical variant of the agreement, in this case one involving somewhat higher compensation for some players, would produce marginally greater net benefits than the agreement the parties actually adopted.  However, as Judge Frank Easterbrook --who argued NCAA for the defendants -- once explained when applying the rule of reason in a subsequent case: "the antitrust laws do not deputize district judges as one-man regulatory agencies."   See Chicago Professional Sports Ltd. Partnership and WGN v. National Basketball Association, 95 F.3d 593, 597 (7th Cir. 1996).  Instead, courts must simply ask whether a restraint is "reasonably necessary" to produce the benefits in question.   Hopefully the Ninth Circuit will agree with Judge Easterbrook and properly apply the rule of reason that has, thanks to NCAA and Justice Stevens, been applicable to such restraints for the past three decades.

Thursday, November 27, 2014

FDR's 1942 Thanksgiving Proclamation

Fighting for Liberty

Including the Liberty to Give Thanks

By the President of the United States of America

A Proclamation

It is a good thing to give thanks unto the Lord.  Across the uncertain ways of space and time our hearts echo those words, for  the days are with us again when, at the gathering of the harvest, we solemnly express our dependence upon Almighty God.

The final months of this year, now almost spent,   find our Republic and the Nations joined with it waging a battle on many fronts for the preservation of liberty.   In giving thanks for the greatest harvest in the history of our Nation, we who plant and reap can well resolve that in the year to come we will do all in our power to pass that milestone; for by labors in the fields we can share some part of the sacrifice with our brothers and sons who wear the uniform of the United States. 

It is fitting that we recall the reverent words of George Washington, "Almighty God, we make our earnest prayer that Thou wilt keep the United States in Thy holy Protection," and that every American in his own way lift his voice to heaven.

I recommend that all of us bear in mind this great Psalm:

"The Lord is my shepherd; I shall not want.

"He maketh me to lie down in green pastures; he leadeth me beside the still waters.

"He restoreth my soul: he leadeth me in the paths of righteousness for his name's sake.

"Yea, though I walk through the valley of the shadow of death, I will fear no evil: for thou art with me; thy rod and thy staff they comfort me,

"Thou preparest a table before me in the presence of mine enemies: though anointest my head with oil; my cup runneth over.

"Surely goodness and mercy shall follow me all the days of my life: and I will dwell in the house of the Lord forever."

Inspired with faith and courage by these words, let us turn again to the work that confronts us in this time of national emergency: in the armed services and the merchant marine; in factories and offices; on farms and in the mines; on highways, railways, and airways; in other places of public service to the Nation; and in our homes.

Now, Therefore, I, Franklin D. Roosevelt, President of the United States of America, do hereby invite the attention of the people to the joint resolution of Congress approved December 26, 1941, which designates the fourth Thursday in November of each year as Thanksgiving Day; and I request that both Thanksgiving Day, November 26, 1942, and New Years Day, January 1, 1943, be observed in prayer, publicly and privately.

* * * * * 

Americans understandably take both Thanksgiving and the liberty to give thanks, in their own way, for granted.  But in November 1942, less than a year after the Axis Powers initiated war on the United States, liberty was in peril throughout the world.  Fortunately, America and her allies, including the United Kingdom, were fighting back.  Leaders like FDR and Winston Churchill, both pictured above on the HMS Prince of Wales concluding the Atlantic Charter, understood the threat and rallied their respective Nations to victory.  As we give thanks today, let us also remember leaders such as these and the innumerable sacrifices by those who followed them in a war that preserved both Democracy and Liberty.

Friday, November 21, 2014

William and Mary and Richmond to Meet for 124th Time

Tomorrow William and Mary and Richmond will continue their gridiron rivalry.  Unlike rivalries that some believe to be contrived, the Tribe/Spider rivalry is the oldest in the South.  The teams first played in 1898, and tomorrow's game will mark the 124th time the two have met.  The two schools will thus tie the Wisconsin-Minnesota rivalry for the fourth most prolific in college football history, behind Lehigh-Lafayette (150 games), Princeton-Yale (136 games), and Harvard-Yale (131 games). Once known as the I-64 bowl, the teams now play for the Capital Cup, in recognition of the fact that both Richmond and Williamsburg have served as capitals of the Commonwealth. 

William and Mary leads the series 61-57-5.  Richmond has shut out the Tribe 23 times, and the Tribe has returned the favor 19 times. The teams have played to three zero-zero ties, and the Tribe holds the record for the most points scored in a game, 59, in 2003.  (For the source of these data, adjusted to reflect last year's result, go to this source, updated in 2012.)

The rivalry's 124th game has more than historical significance.  Both CAA teams are 7-4 and rank 21 (Richmond) and 22 (William and Mary), respectively in the Sports Network Poll of FCS teams.  One observer has speculated that the winner of tomorrow's game (and only the winner), will earn a playoff spot.  Kickoff will be at 7:30 PM, and tickets are still available!  (For detailed game notes, go here.)  Those unable to attend the game in person can watch on the NBC Sports Network.  Good luck to both teams, and Go Tribe! 

Will Georgia Reject Liberty for Tesla (and Consumers)?

Protecting Economic Liberty


The nation's automobile dealers are at it again, attempting to thwart basic economic freedoms in a manner that protects themselves, and their manufacturers, from fair competition.  The battleground this time is Georgia, where the state's automobile dealers' association has filed a petition seeking to bar Tesla from selling automobiles in the Peach State to willing purchasers from outlets owned by Tesla.  The petition claims that Tesla, which holds an automobile dealership license in Georgia, has violated the state's Automotive Franchising Law by selling automobiles to willing consumers from a single Tesla-owned retail store.  That law makes it unlawful for any automobile manufacturer to:

"own, operate, or control, directly or indirectly, more than a 45 percent interest in a dealer or dealership in this state[.]"

Just last week, Tesla filed a motion to dismiss the dealers' anti-liberty complaint. (See here, for a report about Tesla's filing).  Hopefully the Georgia courts will look north for guidance on how to rule on Tesla's motion.  Earlier this fall, the Supreme Judicial Court of Massachusetts struck a blow for economic liberty and the welfare of consumers, by rejected a similar petition by automobile dealers demanding coercive economic protection.  See Massachusetts State Automobile Dealers' Association et al. v. Tesla Motors, MA, Inc. and Tesla Motors, Inc.   As in Georgia, the plaintiffs, an association of automobile dealers and an individual dealer, claimed that Tesla's direct sales to willing consumers violated Massachusetts' own statute governing automotive franchising, General Law Chapter 93B, entitled: "Regulation of Business Practices Between Motor Vehicle Manufacturers, Distributors and Dealers."

Section 3 of chapter 93B prohibits what it calls "Unfair Methods of Competition and Unfair or Deceptive Acts of Practices."  Section 4 in turn defines various practices that violate Section 3. Section 4(c)(10) provides that it shall be a violation of Section 3 for:

"a manufacturer, distributor or franchiser representative to . . . own or operate, either directly or indirectly through any subsidiary, parent company or firm, a motor vehicle dealership located in the commonwealth of the same line [or]  make as any of the vehicles manufactured, assembled or distributed by the manufacturer or distributor.”

Tesla obviously manufactures automobiles, and it distributes such vehicles in Massachusetts via Tesla Motors of Massachusetts, a wholly-owned subsidiary.  Nonetheless, the Supreme Judicial Court concluded that the legislature did not mean to protect the state's dealers from competition by unrelated manufacturers.  Instead, the court said: "93B is aimed primarily at protecting motor vehicle dealers from injury caused by the unfair business practices of manufacturers and distributors with which they are associated, generally in a franchise relationship."  In other words, if a manufacturer, say Ford, relies on independent dealers to distribute its vehicles, it may not then open its own dealerships that compete with such dealers.  On the other hand, a manufacturer such as Tesla that only engages in self-distribution is perfectly free to do so, even if the resulting sales reduce the profits of established manufacturers and their dealers.  As the court put things later in the opinion:

Chapter 93B "was intended and understood only to prohibit manufacturer-owned dealerships when, unlike Tesla, the manufacturer already had an affiliated dealer or dealers in Massachusetts."

While the court couched its ultimate holding as resting upon the plaintiff's lack of standing, the opinion's rationale also suggests that Tesla's self-distribution does not violate the statute in the first place.  If so, then a party that did have standing to challenge a purported violation would nonetheless lose any challenge to Tesla's practice on the merits.

Of course, the ruling by the Supreme Judicial Court is not binding on Georgia courts interpreting their own statutes.  Moreover, the operative language of the Georgia statute is somewhat different from that of the Massachusetts statute.  Still, both statutes govern the franchising relationship between manufacturers and existing independent dealers.  Moreover, both statutes ban numerous practices that manufacturers might employ to the detriment of such independent dealers.  Read as a whole, then, neither statute seems designed to govern manufacturers that, like Tesla, have no independent dealers whatsoever.  Perhaps the Georgia courts will recognize this apparent function of the statute and reiterate the Massachusetts approach.  Failure to do so would place red-state Georgia in the embarrassing position of rejecting a form of economic liberty recognized in blue-state Massachusetts, an a potentially ironic twist given credible rankings finding that Massachusetts otherwise lags far behind Georgia when it comes to protecting basic economic freedoms.

Even if courts in both states embrace a pro-liberty position, the respective state legislatures are still perfectly free to amend their statutes so as to abridge basic economic liberty by banning self-distribution by firms like Tesla.  Indeed, less than a year ago, and as reported here, a member of the Massachusetts legislature introduced a bill intended to "clarify" Chapter 93B. The bill included the following language that would have banned Tesla's strategy of self-distribution.

"The blanket prohibition on manufacturer ownership applies notwithstanding whether a manufacturer has used independently owned or operated dealerships to distribute its vehicles."

Hopefully both legislatures will resist any temptation to alter their statutes in this way.  As previously explained on this blog, free societies respect the rights of entrepreneurs to distribute products as they see fit, so long as the method chosen does not impose inefficient harms on third parties.    Like some other manufacturers, Tesla has chosen to rely upon complete vertical integration, a practice that can reduce the transaction costs that sometimes result from reliance upon independent dealers. While such dealers can provide valuable services, some consumers choose to forgo such services and purchase directly from the manufacturer.  Proponents of legislation imposing blanket bans on such vertical integration by automobile manufacturers have offered no plausible account of how integration by modestly-sized firms such as Tesla can produce economic harm. (See here, discussing and refuting arguments in favor of such a ban.)  Thus, some commentators have properly concluded that statutes banning Tesla's self-distribution "reduce competition in [the state's] automobile market for the benefit of its auto dealers and to the detriment of its consumers."  As a result, they conclude, such statutes amount to "protectionism for auto dealers, pure and simple." Such protectionism, of course, also raises barriers to entry for firms such as Telsa, who apparently believe that self-distribution is less costly than reliance upon independent dealers.  A state anxious to maximize the liberty and welfare of its citizens will reject such coercive protectionism.

Saturday, September 13, 2014

Tribe Home Opener Tonight!

Just Hours Away! 

The Tribe opens its home football schedule tonight against the Norfolk State Spartans.    The unranked Spartans are 0-2, having lost to nationally-ranked Maine in a defensive struggle, 10-6 and Liberty, 17-0.  Ranked 16th in the Sports Network Poll and 19th in the Coaches Pollthe Tribe is 1-1, having lost to Virginia Tech on opening day and defeated Hampton, 42-14, last week.  William and Mary leads the series with the Spartans 4-0.  (For the Tribe's all-time record against other 2014 opponents, go here.) 

Good luck to both teams, and GO TRIBE! 

Tuesday, September 2, 2014

A "Win Win" for American Workers

Wants to Make Work Pay

Ditto, But Has a Better Plan 

Speaking in Wisconsin on Labor Day, President Obama reiterated his call for a higher national minimum wage. The President claimed that such coercive wage fixing will help ensure that "hard work pays off --- with higher wages, and higher incomes."  The President did not mention a recent report by the Congressional Budget Office predicting, consistent with economic science, that the President's proposal to mandate a minimum wage of $10.10 per hour would throw 500,000 Americans, and perhaps more, out of work.  Nor did the President mention other scientific evidence rebutting his previous claims that raising the minimum wage will stimulate the economy and increase employment.

President Obama is right to be concerned about the economic plight of America's working poor. Fortunately a resident of Wisconsin has offered an alternative plan that would improve the living standards of millions of Americans without the various negative consequences of higher minimum wages.  In particular, Congressman Paul Ryan has proposed expanding the earned income tax credit ("EITC") for workers without children, thus significantly raising the effective wage that such individuals receive.

As currently structured, the EITC provides an annual tax credit of $5,500 to an individual with two children who works full time at minimum wage.  When combined with the current federal minimum wage of $7.25 per hour and the refundable child tax credit of $1,000 per child, the EITC pushes the effective wage for such individuals to just under $11.00 per hour.  (See this tax calculator to generate these data.)  Individual workers without children fare far worse under the current tax code, however.  Such individuals are of course not eligible for the child tax credit.  Moreover, the EITC provides such individuals only $503 per year, less than one tenth what individuals with two children receive.

Congressman Ryan's proposal would double the $503 credit for such employees, lower the eligibility age from 25 to 21 and raise the income cap that limits participation in the program. The Ryan proposal would be superior to increases in the minimum wage in several ways. First, the proposal would not throw any Americans out of work.  Second, raising the EITC would confer its benefits only on individuals who need assistance.  By contrast, raising the minimum wage would confer benefits on all minimum wage employees, including, say, teenagers and college students in high income households.  Indeed, most individuals who work for minimum wage are not in or near poverty, with the result that higher minimum wages redistribute income from businesses and consumers (some poor) to individuals in the middle and upper classes.  Third, the burden of an increased EITC would fall on the community as a whole, and not merely upon those employers (and their consumers) that happen to occupy low wage industries.  Fourth, the cost of increasing the EITC would be transparent, unlike the cost of the minimum wage and other labor regulations.   Fifth, the EITC would preserve a level playing field between employers competing with one another in the marketplace. By contrast, mandating a higher minimum wage would disproportionately burden small, labor-intensive firms vis a vis those with capital-intensive production processes, thus protecting large incumbent firms and distorting firms' choices of production technology.  (See pp. 293-95 of this article for additional detail regarding how minimum wages and other labor regulation can disadvantage firms with labor-intensive production processes.)   It is thus no surprise that leading economists, such as Christina Romer, have endorsed the EITC as superior to the minimum wage as a means of ensuring that hard work pays off.  Nor is it surprising that various newspapers, including the Washington Post and Baltimore Sun, have endorsed Congressman Ryan's plan.  (See here and here).  Indeed, President Obama has himself advocated such an increase in the EITC, albeit in addition to a job-killing minimum wage.

It should be noted that, even if Congressman Ryan's plan becomes law, the effective wage of a childless American earning the minimum wage will still be less than $10.00 per hour.  Perhaps there is room for a compromise of sorts between the President and Congressman Ryan.  That is, President Obama could back off his demand that Congress increase the minimum wage, and Congressman Ryan could propose a more generous increase in the EITC. Such a plan would be a "win win" for millions of American workers.