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College athletics: the chink in the Seventh Circuit's "Law and economics" armor

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TitleInfo
Title
College athletics: the chink in the Seventh Circuit's "Law and economics" armor
Name (authority = orcid); (authorityURI = http://id.loc.gov/vocabulary/identifiers/orcid.html); (type = personal); (valueURI = http://orcid.org/0000-0001-8494-775X)
NamePart (type = family)
Carrier
NamePart (type = given)
Michael A.
Affiliation
Dean's Office (School of Law-Camden), Rutgers University
Role
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author
Name (type = personal)
NamePart (type = family)
Edelman
NamePart (type = given)
Marc
Affiliation
City University of New York
Role
RoleTerm (authority = marcrt); (type = text)
author
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NamePart
Dean's Office (School of Law-Camden)
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School of Law-Camden
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Article, Non-refereed
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2019
Abstract (type = Abstract)
If any court is linked to the “law and economics” movement, it is the Seventh Circuit, home of former Judge Richard Posner, the “Chicago School,” and analysis based on markets and economics.1 It thus comes as a surprise that in college-athletics cases, the court has replaced economic analysis with legal formalisms. In adopting a deferential approach that would uphold nearly every rule the National Collegiate Athletic Association (NCAA) claims is related to amateurism, the court recalls the pre-Chicago School era, in which courts aggressively applied “per se” illegality based on a restraint’s form, rather than substance.2 While the Seventh Circuit’s detour of deference has taken several stops, this Essay focuses on the most recent, the 2018 decision in Deppe v. NCAA.3
In Deppe, a college football punter who believed he would receive an athletic scholarship began pursuing transfer opportunities after learning that he would not. Pursuant to the NCAA’s “year-in-residence” rule, however, the punter would have been forced to sit out for one year before he could play for his new school.4 The punter claimed that the NCAA’s rule violated antitrust law. But the district court dismissed the claim, and the Seventh Circuit affirmed, finding that the rule was “presumptively procompetitive.”
The Seventh Circuit’s ruling suffered from four critical flaws. First, the court misread antitrust precedent, relying on dicta from a decades old Supreme Court case addressing a different issue to manufacture a wholly new analytical framework. Second, the court is construed antitrust law by neglecting the longstanding “Rule of Reason” analysis that involves burden shifting and emphasizes consumer welfare. Third, the Seventh Circuit ignored the procedural setting of a motion to dismiss, making up facts benefiting the defendant rather than—as hornbook law makes clear—applying facts in the light most favorable to the plaintiff. And fourth, the court neglected the economics that would have shown the anticompetitive nature of the year-in-residence restriction on student athletes’ movement between schools.
Language
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English
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application/pdf
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1 online resource (14 pages)
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DescriptiveEvent
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Citation
DateTime (encoding = w3cdtf)
2019
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Michigan Law Review Online
Type
Journal
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Has part
Detail
90-103
Identifier (type = volume and issue)
117
Reference (type = url)
http://michiganlawreview.org/wp-content/uploads/2019/04/117MichLRevOnline90_Carrier-Edelman.pdf
RelatedItem (type = host)
TitleInfo
Title
Carrier, Michael A.
Identifier (type = local)
rucore30244100001
Location
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NjNbRU
Identifier (type = doi)
doi:10.7282/t3-ss3d-da68
Genre (authority = ExL-Esploro)
Journal Article
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Copyright for scholarly resources published in RUcore is retained by the copyright holder. By virtue of its appearance in this open access medium, you are free to use this resource, with proper attribution, in educational and other non-commercial settings. Other uses, such as reproduction or republication, may require the permission of the copyright holder.
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Copyright protected
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Open
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Permission or license
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Permission or license
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Multiple author license v. 1
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I hereby grant to Rutgers, The State University of New Jersey (Rutgers) the non-exclusive right to retain, reproduce, and distribute the deposited work (Work) in whole or in part, in and from its electronic format, without fee. This agreement does not represent a transfer of copyright to Rutgers.Rutgers may make and keep more than one copy of the Work for purposes of security, backup, preservation, and access and may migrate the Work to any medium or format for the purpose of preservation and access in the future. Rutgers will not make any alteration, other than as allowed by this agreement, to the Work.I represent and warrant to Rutgers that the Work is my original work. I also represent that the Work does not, to the best of my knowledge, infringe or violate any rights of others.I further represent and warrant that I have obtained all necessary rights to permit Rutgers to reproduce and distribute the Work and that any third-party owned content is clearly identified and acknowledged within the Work.By granting this license, I acknowledge that I have read and agreed to the terms of this agreement and all related RUcore and Rutgers policies.
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1.3
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2019-04-15T14:54:42
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2019-12-03T09:19:01
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