Sam C. Ehrlich

Noticeably absent from this group: the SEC and Big Ten. In a letter today to presidential committee members, SEC commissioner Greg Sankey says the league plans to review the Senate bill’s language before offering any position. The Big Ten filed a similar response.

Big Ten commissioner Tony Petitti’s reply to presidential committee members about a potential Senate bill: “We are not in position to publicly support legislation that we have not seen.”

I need to see the actual bill, but let's say I am no longer a skeptic of something passing and instead curious. The political coalition required to pass a broad college sports antitrust exemption — and without an antitrust exemption, this thing is utterly meaningless — has been unusually unstable for years. Plaintiffs' antitrust bar, state attorneys general, the labor movement, and conservatives suspicious of granting market-distorting privileges to large institutional actors have historically combined to block every prior attempt. The Cruz-Cantwell framing changes the calculus. Cruz brings conservative cover, Cantwell brings progressive cover, and the White House committee provides executive branch endorsement. That is the strongest configuration the NCAA has seen since Alston. But I remain very much a skeptic of caps on coaching salaries, though, and not because I think the spending is sustainable. I don't. I think it is ridiculous how much schools — especially public ones — have gotten away with paying coaches ridiculous salaries. The problem is that the cap cannot be achieved through legislation without raising serious constitutional questions, which means this question should probably be left to the market if we want progress. A federal statute authorizing a private commission of industry insiders to set prices in a multi-billion-dollar market runs directly into the private non-delegation doctrine of Carter Coal and the more recent Department of Transportation v. Association of American Railroads. Also, the First Amendment is implicated because coaching contracts routinely include speech-related compensation — endorsements, media appearances, speaking obligations, book deals — that cannot be capped on the same terms as pure salary. And the Fifth Amendment takings analysis under Penn Central and its regulatory takings progeny becomes live the moment existing contracts are modified, with grandfathering creating its own two-tier market problems. The deeper structural point is that the antitrust exemption and the coaching salary cap are doing two different kinds of work that depend on each other. The exemption shields the existing rules from Sherman Act challenge. The cap is itself a horizontal price-fixing arrangement among competitors that would violate the Sherman Act without the exemption. Congress is being asked to authorize, through statutory immunity, what would otherwise be a per se Section 1 violation administered by a private body whose members are the regulated industry. That is constitutionally novel, and the novelty is the point at which the bill becomes interesting rather than routine. I say let the market handle the coaching salaries and avoid the potential litigation. Whether the political coalition holds is one question. Whether what it produces survives constitutional review is another. I am genuinely curious about the first now. I remain skeptical about the second.

A hearing on House settlement class counsel's motion to enforce the settlement (and declare that deals with MMR companies are not subject to CSC clearance requirements) has been set for June 10 at 11:30 AM PT. The hearing will be a public Zoom call.