A Rapid Reaction to O'Bannon: The Need for Analytics in Applying the Sherman Act to Overly Restrictive Joint Venture Schemes

18 Pages Posted: 23 Jan 2016

See all articles by Stephen F. Ross

Stephen F. Ross

The Pennsylvania State University (University Park) – Penn State Law

Wayne S. DeSarbo

Pennsylvania State University

Date Written: 2015

Abstract

This Article reviews the recent and highly publicized district court decision holding that NCAA rules, which bar student-athletes from any compensation for image rights, violated the Sherman Act, and that big-time athletic programs could lawfully agree among themselves to limit compensation to $5,000 annually in trust for each athlete upon leaving school. This Article briefly discusses why the decision correctly found the current rule to be illegal, but also details why, under settled antitrust law, the critical question of how much compensation would significantly harm consumer appeal for college football and basketball is a question better left to marketing science experts. This Article then explains why neither the flawed survey offered in evidence by the NCAA, nor the anecdotal testimony of NCAA officials, should have been credited. Rather, this Article proposes, as a superior alternative, the use of conjoint analysis, a well-recognized technique of marketing science analytics employed to answer the critical legal question that the antitrust doctrine asks in cases like this.

Suggested Citation

Ross, Stephen F. and DeSarbo, Wayne S., A Rapid Reaction to O'Bannon: The Need for Analytics in Applying the Sherman Act to Overly Restrictive Joint Venture Schemes (2015). 119 Penn State Law Review, Penn Statim 43 (2015), Penn State Law Research Paper No. 15-2015, Available at SSRN: https://ssrn.com/abstract=2719863

Stephen F. Ross (Contact Author)

The Pennsylvania State University (University Park) – Penn State Law ( email )

Lewis Katz Building
University Park, PA 16802
United States

Wayne S. DeSarbo

Pennsylvania State University ( email )

University Park
State College, PA 16802
United States

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