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New NBA Age Rule: It's Not Okay If It's A Three-Way
This is because Commissioner Silver believes it is okay for him to negotiate the new age rule as a three-way conversation among NBA team owners, the players union, and the leaders of college basketball.
Antitrust law, however, would likely disagree. Under antitrust law, the new NBA age rule would not be okay if its a three-way.
The new rule wont stay if its a three-way.
Put Mark Emmert in the middle and theres no leeway. The NBA cant collude with the NCAA.
The federal statute that prevents the NBA from entering into a three-way conversation over the leagues minimum age rule is Section One of the Sherman Antitrust Act. That statute, in pertinent part, states that [e]very contract, combination or conspiracy, in the restraint of trade or commerce is declared to be illegal.
Based on this statutory language, courts have long prohibited any sports league with market power from unilaterally implementing a league-wide age requirement. For instance, in the early 1970s California federal courts struck down an NBA rule that had attempted to require high school basketball players to wait four full years after their graduation before entering the league.
Over time, courts have come to recognize the need for a narrow exemption from Section One of the Sherman Act to protect collectively bargained agreements between employers and their unions if reached through the proper workings of collective bargaining. Many courts have further limited this exemption from antitrust law to aspects of those agreements that primarily affect only the parties to the collective bargaining relationship.
Many of todays sports leagues age requirements seem to fall under this exemption.
Nevertheless, the three-way negotiation proposed by Adam Silver to the NCAA and its players union does not fit as neatly into the non-statutory labor exemption. Reason being, there is no labor law duty for the NCAA to negotiate with the NBA players over terms for entering the NBA.
To the contrary, the NCAA is a potential competitor of the NBA for the limited purposes of securing the services of college-age athletes. Thus, the NCAAs involvement in a bargaining negotiation with the NBA over a new league age rule seems a lot more like an illegal market allocation than a permissible form of labor cooperation.
Indeed, even under antitrust law, the suggestion of a three-way is generally a bad idea.
Marc Edelman is an Associate Professor of Law at the City University of New Yorks Baruch College, Zicklin School of Business, where he has published more than 25 law review articles on sports law matters. His most recent articles include A Short Treatise on Amateurism and Antitrust Law and The Future of Amateurism after Antitrust Scrutiny.
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