President Obama Won't Pardon Ohio State

Can't Pardon Ohio State and Won't Try

Would Agree

 Ditto

NBC Sports is reporting that Ohio State fans have petitioned President Obama unilaterally to lift the NCAA's ban on post-season play by the Buckeyes, who are currently 11-0 and ranked number 4 in the Associated Press poll.  (See also here for an earlier story by FoxSports).  In particular, the fans' petition includes the following language:

         “The Ohio State University football team is one win away from an undefeated season. However, due to imposed sanctions, they are not allowed to participate in their conference’s championship game or the following bowl season. While a punishment for past indiscretions is to be expected, a bowl season ban is too harsh for a few young men trading memorabilia for tattoos and some change. The offending players and coach who covered it up are no longer part of the program. Please exercise your executive power to pardon the NCAA’s excessive sanctions placed on The Ohio State Buckeyes to enable a rightful, satisfying culmination to the college football season for the American people.”  (emphasis added)

Unfortunately for Buckeye fans, it seems highly unlikely that President Obama will intervene.  To be sure, the President has shown great interest in the NCAA post-season Bowl structure, even going so far as to encourage an unwarranted antitrust investigation of the BCS.  However, the President has no authority to intervene.  Article II of the Constitution merely empowers the President to "grant reprieves and pardons for offenses against the United States, except in cases of impeachment." (emphasis added).  The Buckeyes committed no offense "against the United States."  Instead, the NCAA, a private organization, found that Ohio State violated certain standing rules of the organization.  These violations were not criminal offenses but were instead analogous to breaches of contracts between Ohio State and other members of the NCAA.

To be sure, Article II also confers upon the President the "Executive power," which the petition also invokes.  From the beginning, scholars and pundits have disagreed about the nature and scope of the power conferred by this provision.  According to some, this power merely includes the authority to execute pre-existing laws passed by Congress, in addition to the express grants of power included in Article II, such as the power to serve as Commander-in-Chief of the Armed forces and the power to negotiate treaties.  James Madison, pictured above, was an early proponent of this view.  Others, however, contend that the "Executive power" includes, in addition to the powers just described, all authority that is inherently "executive" in nature, particularly the power to conduct foreign affairs.  Alexander Hamilton, also pictured above, was an early proponent of this view.  Indeed, Madison and Hamilton debated the question, albeit through pseudonyms, during the early 1790s, in the context of President Washington's 1793 Neutrality Proclamation.  (See here for a summary of that debate, including the primary documents.)  

In this blogger's view, Hamilton probably got the best of this particular argument, and history has vindicated the Nation's first Secretary of the Treasury.  For one thing, the text itself seems to support Hamilton's view.  While Article I confers upon Congress all legislative power "herein granted," Article II's grant of the Executive power is plenary and unqualified.  Moreover, from the beginning, Presidents have entered "Executive Agreements" with foreign powers, without obtaining the Advice and Consent of the Senate, relying upon their "Executive power" to do so.  Finally, as Madison himself advocated while a member of Congress, Presidents have from the beginning exercised the power to remove executive officers, a power that does not expressly appear in Article II.    Thus, Presidents have apparently derived this authority from Article II's grant of "the Executive power." 

Still, neither Hamilton nor Madison articulated a view of the "Executive power" that is broad enough to empower the President to nullify a sanction that a private organization has imposed on one of its members, even if that organization has a substantial effect on interstate commerce.  Such power instead would reside in the Congress, which the Constitution authorizes to regulate commerce "among the several states."  Any Presidential effort unilaterally to nullify such a sanction would quite properly suffer a fate similar to President Truman's unlawful effort to seize the Nation's private steel mills during the Korean War.  See Youngstown Sheet & Tube Co. v. Sawyer,  343 U.S. 579 (1952) (rejecting this seizure as an unlawful exercise of Presidential power).

Is The NCAA an Illegal Cartel?

Greedy Cartelist?

June 6, 2021 Update:

Earlier today I posted on this blog a forthcoming paper entitled: Requiem for a Lightweight: How NCAA Continues to Distort Antitrust Doctrine, 56 Wake Forest L. Rev. _____ (2021) (forthcoming).  (See here).  The paper critiques several aspects of the Supreme Court's decision in NCAA v. Board of Regents of the University of Oklahoma, 468 U.S 84 (1984), including the Court's decision to exempt all restraints imposed by sports leagues from per se condemnation as well as dicta suggesting that courts should subject some restraints that avoid per se condemnation to a "Quick Look" version of Rule of Reason.  The paper also endorses NCAA's dicta to the effect that horizontal restrictions on rivalry for the services of student-athletes can produce redeeming virtues, with the result that such restraints should survive per se condemnation.  The paper calls on the Supreme Court to correct these and other errors in NCAA v. Alston and thus ensure a more coherent jurisprudence under Section 1 of the Sherman Act that better reflects the teachings of modern economic theory.

An Op-Ed in Sunday's New York Times entitled "The College Sports Cartel," Joe Nocera decries the fact that NCAA student athletes cannot receive more than a full scholarship, room and board, and stipend to cover living expenses.   As the author notes, NCAA rules --- the product of an agreement between competing member schools --- forbid schools to pay student-athletes a salary analogous to what, say, a minor league baseball team would pay its players.  (Put another way, NCAA rules require student-athletes to remain amateurs.)  The author characterizes this agreement as "collusion" of the sort ordinarily forbidden by the antitrust laws, collusion that enriches member schools at the expense of purportedly "shackled" student athletes.   He ends by opining that "[I]t certainly would be worthwhile to see someone challenge [the NCAA's] cartel behavior in court."

And yet, as Nocera himself perceptively admits: "Sports leagues can’t exist without at least some [so-called] collusion."   A classic example, of course, the agreement between a league's members on the number of games in a season.  Thus, the NBA's decision that each team will play "only" 82 games in the regular season is a horizontal agreement on the output of games, a limitation that could be unlawful in other circumstances.  Ditto for members' agreement on the length of the playoffs, including how many games are in the finals.  (Imagine if Ford, GM and Chrysler announced they were agreeing on the number of pickup trucks they would produce in the coming year.)  Indeed, calling such agreements between members of the NBA "collusion" would deprive the word of any useful descriptive value in this context, as the term would become a synonym of "contract" or "cooperation."

Sports leagues are not unique in this sense.  All sorts of welfare-increasing economic activity is the result of agreements between rivals, agreements that economists and antitrust courts call "horizontal."  For instance, the formation of a partnership is a horizontal agreement that eliminates rivalry between the new partners.  Such partnerships often include explicit agreements between the partners not to "moonlight" and thus compete with the partnership.    Ditto for franchising, which many economists properly conceptualize as an agreement between actual or potential rivals (think of the numerous independent McDonalds franchisees in a medium-sized town).  Such agreements set product standards, decide what products members of the chain will offer, what ingredients each product will contain, etc.  Without such (horizontal) agreements, what consumers currently experience as a well-run franchise system would rapidly devolve into a loose confederation of business establishments that, while operating under the same trademark, would offer varying products and varying degrees of quality, sowing confusion in the mind of consumers and defeating the purpose of operating under a single trademark.  Thus, while such agreements reduce rivalry in some sense between members of a franchise system, they can ultimately enhance the quality of the products offered by a particular franchise system and thus further useful competition with other such systems, to the ultimate benefit of consumers and the rest of society. 

In short, like many productive ventures, the NCAA and other sports leagues entail cooperation between rivals, cooperation that could be problematic in other contexts when viewed in isolation.  The key question from the perspective of the antitrust laws is whether the cooperation in question, while nominally reducing competition between rivals, might in fact overcome a market failure and thus increase the welfare of society by inducing a more efficient allocation of resources.  That, in short, is the focus of antitrust's "Rule of Reason, " announced in Standard Oil v. United States.  (See this article for a more in depth explanation of the connection between market failure and Rule of Reason analysis.)

While litigation against the NCAA on this question might enrich antitrust lawyers, the Supreme Court has already explained how it would rule in such a case.  Twenty-five years ago, in NCAA v. Bd. of Regents of the University of Oklahoma, the Court evaluated NCAA rules limiting the number of games that networks could broadcast on television during any given season.  The rules also limited the number of times that any particular school could appear on television.  The Court condemned the rules under the Rule of Reason because they reduced output without any offsetting benefits.

In so doing, however, the Court expressly approved other horizontal restraints imposed by the NCAA, including those fostering amateurism by the players.  The Court's language (previously discussed on this blog) is worth quoting in full:

"What the NCAA and its member institutions market in this case is competition itself -- contests between competing institutions. . . . . [T]he NCAA seeks to market a particular brand of football -- college football. 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 playing field might soon be destroyed. Thus, the NCAA plays a vital role in enabling college football to preserve its character, and as a 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."

The Court then noted (as suggested above) that "a restraint in a limited aspect of a market may actually enhance market-wide competition."

Simply put, the Court concluded that unbridled competition between member schools for players, thereby allowing schools to pay players a salary, would result in a market failure.  That is to say, no individual school would, when setting players' compensation, take into account the impact of that decision on the overall "brand" or "image" of the product being offered.  While players might benefit in the short run, the "brand appeal" of college football would suffer over the longer run, as what was once amateur athletics associated with an academic tradition (and thus a natural fan base) would degenerate into a professional league inferior to the NFL and without a natural fan base.

The result may seem to countenance an unfair distribution of the benefits produced by NCAA football.  Certainly some schools earn millions each year due to the performance of their student athletes.  (At the same time, however, many others lose money on the sport, and no one is proposing that student athletes share in these loses.)  However, antitrust law does not exist to ensure a fair division of the gains from economic activity but instead only bans those agreements or unilateral practices that reduce economic welfare. 

Replay Reversal Robs Danny Coale/Virginia Tech of Sugar Bowl Overtime Touchdown

Great Catch!

The Blogosphere is properly abuzz about the controversial replay reversal during last night's Sugar Bowl.  (See also here.)  During the first overtime, Hokie quarterback Logan Thomas passed to wide receiver Danny Coale for an apparent touchdown.  "After further review," however, replay officials reversed the touchdown call made by an official who was a few feet away from the catch.

In the opinion of this blogger, the reversal was erroneous.

According to the 2011-12 NCAA Football Rule Book:

"A player 'gains possession' when he is firmly holding or controlling the ball while contacting the ground inbounds."   

Moreover, same rules provide that:

"To catch a ball means that a player leaves his feet, firmly grasps a live ball in flight and [then] first returns to the ground inbounds with any part of his body."

According to the replay posted here, Coale left his feet to catch the ball.  (The critical footage begins about 31 seconds into the video.)  Moreover, he was "firmly grasp[ing] the ball" when his left arm (certainly a "part of the body") made "contact[] with the ground inbounds."

To be sure, after his arm contacted the field inbounds, the ball, still firmly in Coale's grasp, made contact with the ground.  However, nothing in the rules just quoted provides or even suggests that mere contact of the ball with the ground in these circumstances deprives the player of a catch. 

Indeed, the very same rules provide that a player may catch the ball even "with the ball first touching the ground inbounds" if, at the time of the touch, the ball is "still in his firm grasp."

(See Rule 2, Section 4 for these definitions of "Catch, Recovery and Possession")

Finally, it should go without saying that, to quote the same 2011-2012 NCAA Rules:

"The replay official may reverse a ruling if and only if the video evidence convinces him beyond all doubt that the ruling was incorrect.  Without such indisputable video evidence, the reply official must allow the ruling to stand."

This blogger is aware of no such "indisputable video evidence."

Update:  Here is an excellent blog post, complete with several stills from the video of the catch, arguing that Coale maintained control throughout the catch and that the ground did not assist in the catch.  The post is on a blog entitled "Tech Superfans."