Are Conference-Level Student-Athlete Scholarship Limits Safe from Antitrust Scrutiny? (Guest Post)

This is a follow-up Guest Post by Professor Sherman Clark of the University of Michigan:

Are Conference-Level Student-Athlete Scholarship Limits Safe from Antitrust Scrutiny?

Sherman J. Clark

Following up my recent post about the line-drawing difficulties faced by courts dealing with antitrust challenges to NCAA amateurism requirements, I address here one potential solution—conference-level scholarship limits.

It is sometimes suggested that the invalidation of current NCAA amateurism rules would not lead to a full free market for players’ services. Instead, it is suggested that: 1) conference-level limits on scholarships or other payments to players would be legal under the Sherman Act; and 2) major conferences would adopt limits far short of a full free market. Neither of those assumptions, however, is warranted. 

I am not taking a position here as to whether or to what extent a full free market for the services of college football and basketball players would be good idea, or would alter or undercut the nature or appeal of college sports. My point here is simply that the slope to such a free market is more slippery than many seem to recognize, and that conference-level scholarship limits might not provide a safe stopping point.

Begin with the legal issue—assuming, for the moment, that conferences would in fact maintain scholarship limits. It is suggested that such limits would not present antitrust problems because conferences lack market power. That misunderstands the law.  A threshold showing of market power is requisite in Section 2 claims, and in many Section 1 claims.  But Section 1 claims involving proven price-fixing or wage-fixing do not, properly understood, require a separate showing of market power.  The extent of market power can be relevant as part of the rule of reason inquiry—although courts create confusion when they frame it that way; but proof of wage-fixing alone, which is itself proof of market power, can support a Section 1 claim without additional evidence of market power.

In particular, as litigation involving Ivy League schools two decades ago demonstrated, colleges are potentially liable under Section 1 of the Sherman Act for conference-level agreements fixing or limiting scholarships and financial aid. A purported lack of market power does not automatically shield them from such liability. And it is perhaps helpful to understand why this makes sense.

Antitrust law requires a showing of market power in many types of cases because it is often not clear whether a challenged practice will cause the kind of harm that antitrust law seeks to avoid.  In product market cases, that harm is the raising of prices and the reduction of output, which signals an inefficient allocation of resources and thus dead-weight loss. In labor market cases, the harm we are worried about is precisely analogous—lowering of wages, which leads to a misallocation of labor resources.  So, in some labor market cases, courts need to determine whether there is sufficient market power to cause the harm we are worried about—a lowering of wages. But if the case involves direct wage-fixing, there is no need for separate proof of market power.

Perhaps the better way to put it is this: the ability to fix wages is itself proof of sufficient market power. If conspirators have enough market power to fix wages, they by definition have enough market power to be potentially liable for it.

In evaluating conference-level limits on payments to players, therefore, courts would need to do at least some rule of reason analysis. And that in turn would hinge on nature of the particular limit. If major conferences were to impose only modest restrictions on the market, avoid depress wages more than necessary, and can show legitimate pro-competitive benefits, conference-level scholarship restrictions of some sort might survive Section 1 scrutiny.  But if conference rules are highly restrictive and attempt to retain something like the current scholarship-only regime, those rules might very well not survive that scrutiny. Keep in mind that the pro-competitive benefits to which conferences would point would be essentially the same as those that courts seem unwilling to accept in current cases involving the NCAA.

And yes, this does mean that even current athletic scholarship prohibitions or limits agreed upon by schools in conferences such as the Ivy League, and by Division III schools, are not necessarily immune to antitrust challenges.  Such challenges are unlikely, given that players in those leagues generally would have very little value in a competitive market.  And for the same reason, collusive restrictions in such leagues would likely survive rule of reason scrutiny if challenged—given the minimal negative effect on competition. But strict restrictions imposed by major conferences that do employ players with potential market value would be at risk of being found illegal.

Of course, the major conferences might not be eager or able to maintain strict restrictive limits, even if they could withstand a Section 1 challenge—at least not if they hope to remain major conferences. The logic behind the belief that such rules might survive antitrust scrutiny is that inter-conference competition will offset the intra-conference anti-competitive effect. Setting aside the legal merits and sufficiency of that argument, which are questionable, it does reveal something critical—the assumption that conferences would in fact compete.

If so, it is not clear that major conferences could or would maintain substantial limits on payments to players. The race for the bottom would be difficult to resist. In a world where teams in the SEC are paying players, would the Big Ten really concede the top talent by sticking to a scholarship-only policy—even assuming it were legal?  Many schools have great deal invested and at stake in being part of big time college football and basketball. It would take real fortitude to hold out.

I cannot predict how conferences would react if required or permitted to set their own athletic scholarship rules. No one can. It might take decades of realignment and readjustment to sort out. My point here is simply that both the forces of competition and the desire to avoid antitrust liability would tend to drive major conference scholarship rules in the direction of a full free market.

Again, it is a separate question whether a full free market for the services of college athletes would be a good thing—whether it would alter or undercut the nature or appeal of college sports and kill the goose that lays the golden eggs. But if we are at all concerned about the implications or consequences of heading in that direction, we should not assume that conference-level limits will provide a safe haven on the road from here to there.

Sherman J. Clarkis the Kirkland & Ellis Professor of Law at the University of Michigan Law School.

Guest Post -- NCAA Academic Requirements: A Lesson for Antitrust Analysis of Amateurism

The following is a guest post by Sherman Clark, Kirkland & Ellis Professor of Law at the University of Michigan:

NCAA Academic Requirements: A Lesson for Antitrust Analysis of Amateurism 

Sherman J. Clark 

Here is hypothetical but I think illuminating question. If courts determine that it violates antitrust law for NCAA schools to collude in refusing to pay players, might it also violate antitrust law for schools to collude in requiring players to be full-time students? It  might seem obvious that academic eligibility and academic progress requirements do not implicate antitrust law; but it seemed equally obvious a generation ago that amateurism requirements do not implicate antitrust law.  It seemed obvious; but it was wrong.  The logic from Board of Regents to Law to O’Bannon was inexorable. And it does not stop there.

Let me be clear. Courts are not likely to hold that NCAA academic eligibility and academic progress regulations violate the Sherman Act—not any time soon, at least. Rather, my point is that such a ruling would actually make some sense—and would in some sense follow logically from a conclusion that collusive amateurism requirements are illegal. In this light, thinking about why the courts would probably not find eligibility requirements illegal can help us think about the amateurism cases.

One might be tempted to dismiss this comparison out of hand on the grounds that eligibility rules are fundamentally different from amateurism requirements; and that such rules do not amount to price fixing. But price fixing is not the only thing that violates the Sherman Act.  Any restraint of trade that has a substantial impact on competition is illegal if its anti-competitive effects outweigh its pro-competitive benefits.

So, next one might  assert that academic eligibility requirements do not have any substantial anticompetitive effect. But they do. They exclude completely from that labor market anyone is not able to be a full-time student. If all the coffee shops in the United States were to agree to hire only full-time college students, that would be anticompetitive, and thus a violation of the Sherman Act.

Here one might say that college sports are different. Exactly. Being a college student has nothing inherently to do with working as a barista, but it has everything to do with playing college sports. What makes college sports what they are is that they are played by student athletes. And that is the point. Colleges are allowed to collude in this market in a way that would be illegal in other labor markets because the nature of the labor is essential to the nature of the product in a way that is not true in other markets.  Where a restraint is necessary to define a product, it is not illegal.

But is it necessary that players be full-time students? Bear with me here. Would it really alter the nature of the product to let part-time night students play. Granted, if teams were made up of players who are not students at all, even in name, that might well alter the nature and appeal of the game. But it would probably not make a measurable difference to the character or appeal of college sports if the current academic progress requirements were relaxed a bit.

So does that make it illegal for the NCAA to refuse to relax these restraints? Of course not. Courts are not going to get in the business of drawing lines about how much relaxation of the academic progress requirements would ultimately alter the nature of the game too much. There would be no principled place to draw the line.  And besides, such regulations must be seen not in isolation, but in conjunction with other rules, which together define the endeavor—and thus the product. 

In the same way, it will probably make little difference to the nature and appeal of college basketball or football if players are paid a $3,500 stipend, or even $20,000.  But at some point it might.  And how are the courts to draw the line? Of course, courts could simply draw a line by fiat; but the line will be arbitrary and the cases unpredictable. There is no coherent stopping point short of a full free market.  In such a market, stars would be paid large amounts and most other players much less—perhaps less even than what their scholarships are now worth.  And that might well alter the nature and appeal of the game.

Or it might not.  I am trying to highlight a problem here, not solve it. The essential problem is that it will be difficult or impossible for the NCAA ever to show that any one particular thing about who plays college sports is by itself essential.  The risk, therefore, is that the courts will declare aspects of NCAA regulation—one by one—to be inessential in defining the product, and thus illegal restraints of trade.

It is helpful to remind ourselves that there is no law of nature that says people will pay billions to watch semi-pro level sports. No one watches the NBDL. There is some combination of tradition and mystique that makes college football and basketball different and appealing. We should try figure out what that is—and what if any role amateurism plays in it—before we dismantle it one seemingly-inessential element at a time.

If we continue to proceed step by step, asking whether this or that particular restraint is necessary, we may well end reminiscing about the old days when college sports were a big deal—and wondering which was the straw that broke the camel’s back.  And those who started out trying to make sure players get a piece of the pie may find that there is a much smaller pie to divide up. 

Sherman J. Clark is the Kirkland and Ellis Professor of Law at the University of Michigan Law School.

New Article: Navigating the Legal Risks of Daily Fantasy Sports

It's my pleasure to announce the online publication of sections 1-4 of my newest law review article "Navigating the Legal Risks of Daily Fantasy Sports: A Detailed Primer in Federal and State Gambling Law."   This article explores the legal status of "daily fantasy sports" in light of both federal and state gambling laws.  The full version of this article will be published in the January 2016 edition of University of Illinois Law Review.

The NCAA Business Enterprise: Crumbling Under its Own Success?

We just enjoyed perhaps the most exciting college sports weekend of the year: the Regional Finals of the NCAA's March Madness Tournament. Four men's basketball games are played, in sold out arenas (or domes), in front of a staggering number of television viewers. The demand for this event is so large that the broadcast rights of the March Madness tournament were contracted to CBS/Turner for $10.8 billion over 14 years. And therein lies the rub: is the NCAA about to crumble under its own success?

This weekend, three articles were published that addressed this very issue. First, Mark Alesia, an outstanding reporter for the Indianapolis Star, dug into the financials of the NCAA and wrote that the NCAA is "poised to top the eye-popping mark of $1 billion in annual revenue." As the NCAA's annual revenue has increased each year since 2001, legal claims have arisen on behalf of college athletes looking to share in this economic growth.

Our own Michael McCann spoke with Alesia for this article, and aptly stated "This is a transformative era for the NCAA, and at the end, the student-athlete will have a different role. There will be changes to amateurism." But what about defining this seemingly simple concept of 'amateurism?' Allen Sack, professor at the University of New Haven, states that "amateurism is whatever the NCAA arbitrarily decides to call it."

The second article over the weekend was an opinion piece written by Smith College economist Andrew Zimbalist titled "Paying College Athletes: Take Two." While everyone tries to frame the debate as 'should we pay college athletes?', Zimbalist accurately reminds us that "college athletes have been paid since the 19th century."

Perhaps the heart of his article can be summarized in the following quote:

"If we want to preserve the educational model of intercollegiate athletics, here's a more attractive option: Take the definition of amateurism away from its current arbitrary, hypocritical and morphing state imposed by the NCAA and follow the lead of the AAU and other amateur organizations. The working definition should be simple: an amateur athlete is one who is not paid a salary for playing his or her sport."

This definition, under Zimbalist's concept, would allows institutions the ability to: 1) provide full cost of attendance; 2) year-round health insurance; 3) lifetime health insurance for athletically related injuries; 4) disability insurance and; 5) due process. YES PLEASE!

The third article demanding your attention is the wonderfully written piece "A March Madness Underdog: Free Enterprise" by Allysia Finley in the Wall Street Journal. In her article, Finley interviews none other than noted NCAA critic Jay Bilas who explains why players should be paid, and how to overhaul the 'exploitive' NCAA.

Using eloquence and humor, Bilas argues for a system that allows college athletes to be paid what the market deems them to be worth. Note the term 'allows' as he states "I'm not advocating and never have that some athletes should be paid. It might be a distinction without a difference to some, but what I'm saying is that it shouldn't be disallowed."

Last month at the MIT Sloan Sports Analytics Conference, I was lucky enough to moderate a panel titled "Amateurs or Industry: NCAA Reform." Joining me on the panel was the NCAA's Oliver Luck, Northwestern AD Jim Phillips, the NBA's Rod Thorn, and some sports lawyer named Michael McCann. MIT has just released the conversation and, while I'm biased, I think it's well worth your time to watch.

As you get ready for this coming weekend's Final Four in Indianapolis (note: that's where the NCAA is headquartered) I encourage you to read these three articles and watch this video. Think. And then debate with others. What's right and where does college athletics go from here?

The First Amendment and the Redskins Tradement, part I: Government speech

The following post is by Robert L. Tsai and Christine Haight Farley (both of American); it is the first several guest posts on the Washington Professional Football Team trademark case. It is cross-posted at PrawfsBlawg.

The ACLU recently filed an amicus brief in the Washington Redskins trademark case, arguing that the Patent and Trademark Office’s (PTO) cancellation of Redskins registrations constitutes viewpoint discrimination contrary to the First Amendment, and urging the federal court to strike down those portions of Section 2(a) of the Lanham Act that prohibit the registration of “immoral,” “scandalous,” or “disparage[ing]” marks.  We are deeply concerned with the ACLU’s position.  Its proposal to thrust First Amendment law into an area of commercial regulation in unprecedented ways would wreak havoc with trademark law’s careful balance of concerns for property rights, economic exchange, and consumer protection.  We believe that the ACLU’s fundamental misunderstanding of trademark law has caused it to misapply First Amendment doctrine.

In this first post, we wish to focus on the ACLU’s invocation of two First Amendment doctrines: viewpoint discrimination and unconstitutional conditions (we leave for a separate post whether the commercial speech doctrine might be appropriate).  The ACLU’s position erroneously elides the various forms of government regulation and their contexts, treating trademark law like criminal law, municipal ordinances dealing with protests, laws creating public fora, and public subsidies.  But the strongest First Amendment doctrines designed to ensure robust public debate simply don’t map on to trademark regulation without creating a major upheaval in trademark law.  First Amendment doctrine requires strict scrutiny whenever there is a direct, content-based regulation of private speech.  The federal trademark registry, however, does not operate like a direct regulation of private speech, nor does it create a forum for the expression of private speech.



Congress’s power to regulate trademarks flows from, and is constrained by its constitutional authority over interstate commerce.  Federal registration of a mark confers certain benefits (e.g., registration is treated as prima facie evidence of validity and ownership of a mark, gives a nationwide priority over subsequent users, and offers access to certain remedies), but it does not create rights. These advantages are more procedural in nature than substantive, closer to internal court rules than criminal laws, permit ordinances, or public subsidies.  Trademark rights are instead established by common law from the actual commercial use of the mark; these rights can be asserted in federal court without a registration.  It is in this crucial sense that the Lanham Act does not directly regulate expression as such—certainly not in the same way that a criminal law preventing offensive speech, a regulation banning parades without a permit, or even laws that subsidize private speech do.  Section 2(a) does not prohibit the utterance of the word “Redskins” or attach any conditions on anyone’s use of that term.

This provision simply refuses to confer the benefits of registration on the Washington football team.  The team would still retain the right to assert itself as the first and exclusive user of the term for commercial purposes under federal law.  Consequently, the provision offers the Native American challengers in this case only the possibility of a symbolic victory—there would be no need for the team to change its name as it may still use and enforce the mark.  Section 2(a) neither chills the free expression of ideas nor inhibits robust public debate.

Unable to point to a public forum or a direct inhibition of expression, the ACLU contends that the PTO registry imposes an unconstitutional condition on speech.  In support of this proposition, the ACLU cites Legal Services Corporation v. Velazquez, where the Supreme Court struck down a federal law that prevented publicly-funded legal services lawyers from challenging “existing law.”  As Robert has discussed elsewhere, this restriction of subsidized advocacy was tantamount to a ban on anti-government speech.  But there is nowhere near the same threat to freedom of expression entailed by Section 2(a) of the Lanham Act—it is not even in the same ballpark.  After cancellation of its registration, the Washington football team remains just as free to use the Redskins marks, in commerce or political discourse.  Moreover, the fact that registration is cancelled in no way inhibits the mark user’s legally-oriented expression or distorts the normal operations of the legal system, two findings central to the Velazquez ruling.  Section 2(a) does not restrict what lawyers can say in court and does not even prevent the mark’s owner from relying on statutory and common law trademark doctrines.  It imposes no condition whatsoever on non-commercial expression.  As Adam Cox and Adam Samaha have shown, truly unconstitutional conditions are rare, and virtually every constitutional issue can be reframed as an allegedly unconstitutional condition (as the ACLU has done).  It is a mistake to do that here.

Closer examination of the idea of viewpoint discrimination shows that it doesn’t really capture how Section 2(a) of the Lanham Act actually works.  That concept has been invoked in cases where there is a serious fear of chilling of political speech, i.e., when one side in a debate has to fight with an arm tied behind her back.  But there’s no serious concern that anyone’s ideological message is hampered or distorted by the Lanham Act.

Section 2(a) does not turn on a speaker’s actual perspective on an issue.  It instead permits an objective determination that a mark, regardless of the owner’s viewpoint, will be perceived as disparaging by the referenced group when used in commerce.  Someone who wishes to coopt a disparaging term for positive ends may be barred from registry just as someone whose intended use is to disparage.  Thus, Section 2(a) operates without regard to the ideological intention of a speaker.  For example, the PTO refused the registration of the mark “The Slants” finding it was disparaging to Asian Americans despite the fact that the applicant was a band whose members are Asian and who intended to take on stereotypes about Asians.  The applicant’s viewpoint was irrelevant.
Moreover, enforcement of Section 2(a) does not prevent the utterance of noncommercial pro-Redskins speech, just as it does not prohibit the utterance of non-commercial anti-Redskins speech.  Decisions like Rosenberger v. Rectors of Virginia, and R.A.V. v. City of St. Paul are simply inapposite.

We think that the best analogue for this type of government regulation is government speech.  Under that body of caselaw, the PTO registry constitutes “government speech” rather than regulation of private speech.  The doctrine permits government-wide latitude to design its own programs and express its own views, consistent with Congress’s mix of commercial and ideological goals.  Reliance on this doctrine would recognize that the PTO registry simply is not a forum created for the exchange of private ideas; rather, it is a tool to facilitate Congress’s goals of regulating interstate commerce and protecting a diverse population of consumers from business practices that foster racial discrimination and stereotyping.  These core programmatic goals place Section 2(a) well within the reasoning of two government-speech rulings by the Supreme Court: Rust v. Sullivan, where Congress barred government-funded doctors from advising about the availability of abortion, and FCC v. Pacifica Foundation, which permitted Congress to protect listeners from “obscene, indecent, or profane” broadcasts.

Accepting the ACLU’s invitation to apply First Amendment law maximally to the PTO registry would improperly convert the registry into a free speech forum.  It would force the PTO to register all manner of marks, interfering with the government’s delicate balance of regulatory objectives.
A ruling in this case against the football team does express the government’s belief, after careful fact finding, that the term “Redskins,” as used by the Washington football team in commerce, is disparaging to an entire group of people.  Under the government speech doctrine, Congress is free to express the view that racially-inflected commerce is wrong, that certain ideas harm consumers in a pluralistic marketplace, and that government sanction of the trademark’s usage might inhibit commercial activity.  The PTO, relying on Section 2(a), has expressed that view here, leaving private actors at liberty to agree or disagree.

Finally, consider what actually happens when the PTO refuses to register a mark on the ground that it is “disparaging.”  It means that the mark owner cannot claim that the federal government has endorsed or supported that expression for commercial reasons.  But he or she can continue to use it in public debate.  Moreover, to the extent that the benefits of registration hinder the mark owner from excluding others from using the term in commercial activity, the absence of a registration guarantees a more robust public debate.  That result seems far more consistent with ensuring wide-open conversation on matters of public importance than a federal court ruling invalidating this portion of Section 2(a).

Tomorrow: "New Era in Gaming Law" Symposium

The Northern Kentucky Law Review and the W. Bruce Lunsford Academy for Law, Business and Technology will host "The New Era in Gaming Law" Symposium on Friday, March 20, 2015, at Northern Kentucky Law School. Featuring some of the country's leading gaming law experts, including Sports Law Blog Contributors Ryan Rodenberg and Marc Edelman, this symposium will explore emerging regulatory and legalization issues regarding sports betting, fantasy sports, and online gambling. I will be speaking about the latest developments in the New Jersey sports betting controversy and how the path to legalized sports betting has taken a unpredictable due to the emergence and popularity of daily fantasy sports and the "partial repeal" strategy employed by New Jersey (with the apparent blessing of the Third Circuit and the federal government). The symposium will also include a student scholarship showcase of law review students presenting their student notes on gaming law issues.

The symposium has been approved for 5.5 hours of general CLE credits in Ohio, and is anticipated to e approved for 5.5 hours of general CLE credits in Kentucky and Indiana. Registration is complimentary and includes the anticipated CLE credits, breakfast, lunch, reception, and all published materials.

To register and to learn more about this symposium, click here. You can also register by contacting the symposium administrator, Jeannine Abukhater Lambert, at centers-institutes@nku.edu or by calling her (859) 572-6403. Hope to see you there!

Schedule of Events

George and Ellen Rieveschl Digitorium

9:00 a.m.  WelcomeDean Jeffrey A. Standen, Northern Kentucky University Salmon P. Chase College of Law
Editor-in-Chief Brian Morris, Northern Kentucky Law Review

9:15 a.m. – REGULATING FANTASY SPORTSProfessor Marc Edelman, Zicklin School of Business, Baruch College, City University of New York

Attorney Kate Lowenhar-Fisher, Dickinson Wright PLLC, Las Vegas, Nevada

Dean Jeffrey A. Standen, Northern Kentucky University Salmon P. Chase College of Law

10:55 a.m. BREAK

11:15 a.m. THE FUTURE AND PROLIFERATION OF GAMINGProfessor I. Nelson Rose, Whittier Law School, Costa Mesa, California

Attorney Daniel Wallach, Becker & Poliakoff, Fort Lauderdale, Florida

Attorney Kate Lowenhar-Fisher, Dickinson Wright PLLC, Las Vegas, Nevada

The remainder of the symposium will be in the Student Union Ballroom

1:00 p.m. STUDENT SCHOLARSHIP SHOWCASE LUNCHEONJay Wampler, Northern Kentucky Law Review, “Every Time I Call It a Game, You Say It’s a Business. Every Time I Say It’s a Business, You Call It a Game”

Jonah Ottley, Northern Kentucky Law Review, “Fantasy Sports and Gambling: Drawing a Line in the Sand Between Pete Rose’s Gambling and Daily-Play Fantasy Sports” 

2:10 p.m. THE LANDSCAPE OF GAMING REGULATIONS
Professor Walter Champion, Texas Southern University Thurgood Marshall School of Law, Houston, Texas

Professor Ryan Rodenberg, The Florida State University, Tallahassee, Florida

3:30 p.m. ROUNDTABLE

4:30 p.m.  RECEPTION

Testing the NBA Draft Waters in 2015

As you fill out your brackets for the 2015 NCAA March Madness tournament, it's time for my yearly rant on the preposterous rules that the NCAA imposes on men's basketball players and their ability to properly evaluate their option in leaving early for the NBA. Want to know how absurd the NCAA's rule regarding their deadline for early-entry into the NBA draft is?  It has been called "one of the silliest, most cynical and least student-athlete-friendly decisions ever." [And there is a significant amount of competition by the NCAA for this award.]

Consider the following:

1. To set the framework, the NBA's draft eligibility rules, found in Article X, Section 1 of the CBA, require that a player be 19 years old, thus the concept of "one and done";
2. In a rare moment of logic, the NCAA allows prospects to "test the waters" by working out with teams and getting an appraisal from the NBA's Undergraduate Advisory Committee on their draft potential. However, this value of this opportunity is greatly reduced when taking into account NBA and NCAA deadlines;
3. The NBA has several events and deadlines regarding entry into the 2015 Draft, they are: 
• April 8-11th: Portsmouth Invitational Tournament (seniors only)
• April 26th: Early-entry candidate deadline to declare for the NBA draft
• April 29th: NBA teams can conduct or attend workouts with early-entry players
• May 12-17th: NBA draft combine
• May 19th: NBA draft lottery
• June 15th: Deadline to withdraw from the NBA draft
• June 25th: 2015 NBA Draft
4. The NCAA also has a deadline by which players must declare their intention to return to college. The kicker? The NCAA requires that college athletes announce by April 12th.  A full 65 days before the NBA requires they do so.

Thus, the obvious incongruity of these deadlines: the NCAA requires a decision before ANY of the NBA dates kick in. It is no coincidence that the NCAA deadline of April 12th is early; it's so that college coaches are able to know who is returning to their rosters before the April 17th men's basketball signing period. This imposed deadline was created with the direct purpose of assisting in recruiting; yet another example of the scales tipping in favor of coaches rather than their players.

The NCAA program which allowed prospects the ability to work out and get an unbiased and informed perspective on their pro potential is nearly moot. Why?  Because NBA teams won't work out players until their deadline (April 26th) has passed and someone has declared for the draft. And despite NBA Commissioner Adam Silver's intent on having the NBA, NBPA, and NCAA all in a room agreeing upon dates, age eligibility requirements, and other issues (as reported here at a 2014 Boston College's Chief Executives Club event) there is the legal barrier to this conversation ever taking place: collusion. The NCAA is not a legally recognized bargaining entity.

The bottom line is that in order to allow college coaches the ability to evaluate their roster needs for the fall, college students are handcuffed in their ability to get an unbiased evaluation of their NBA prospects. Yet somehow in the sports of baseball, football and hockey, league draft rules and NCAA bylaws enable players to take their time in weighing this career choice. If the mission of higher education is to educate and allow for career development, why does the NCAA choose college basketball recruiting needs over the best interests of the students?

There has been plenty written about the absurdity of these rules:

1. In 2011 I wrote a law review article outlining the history of the NBA draft and arguing for change;
2. This past week, noted agent Arn Tellem wrote this important article in Grantland titled "D-League Reconstruction: The Necessary Plan to Fix the NBA's Farm System." The proposals are sound, with many industry leaders applauding Tellem's vision. Among the recommendations, Tellem argues for greater investment in the D-League, changes in the draft system, and an ability for undrafted college players to return to the NCAA. All I can say is "hope springs eternal...."
3. One wrinkle in 2015 to this debate is the role that Michele Roberts, newly appointed Executive Director of the National Basketball Players Association (NBPA) will play. Given the strength of the union, her public positions on a variety of hot topics, and the increased engagement of NBA stars such as Chris Paul and LeBron James in the strategic direction of this organization, one can only assume greater advocacy on behalf of the players than has been seen in recent years.
   
4. In recent years, several others have weighed in: Darren Heitner wrote this piece. Marc Isenberg penned this article. Andy Katz here and here, Eamonn Brennan here.
5. There was, of course, the great and path-breaking law review article written in 2004 by our own Michael McCann titled "Illegal Defense: The Irrational Economics of Banning High School Players from the NBA Draft."  McCann was the first person to show through empirical analysis of both on and off the court performance that players skipping college were the best players in the NBA and that an age restriction is irrational. McCann followed up Illegal Defense in 2005 with an empirical study on NBA players who have been arrested and their education level.
6. The best news is that there is on-going dialogue to address the draft withdrawal date. ESPN's Andy Katz does a great job here, in outlining the parameters of these discussions which includes pushing back the NCAA's date to withdraw from the draft and an underclassman invite-only combine.

Again, very little new in this post, just a reminder of the asinine nature of the NCAA restricting college students from making an informed choice about their future careers.