Abstract

Paper Five established that the new enforcement body lacks legitimacy from any of its three possible sources and that the deficit could be closed only by statute or by bargaining with a genuine representative of the athletes. This paper takes up the legal exposure that the legitimacy deficit leaves uncovered, and arrives at the same two routes by a different road. It argues that the restraints at the center of college sports — the cap on athlete compensation, the rules barring outside payments — are concerted restraints of trade by horizontal competitors in a labor market, and that the breadth of the Association’s membership was what allowed those restraints to be defended as the rules of a joint venture rather than condemned as a price-fix among dominant firms. From this follows the paradox the paper is named for: a narrower breakaway entity faces more antitrust exposure, not less, because narrowing the group concentrates market power, strips away the heterogeneity that lent the restraints the coloring of governance, and makes the concerted action look exactly like what antitrust law most readily condemns. The conferences’ intuition that a smaller bloc could evade challenge confuses the ease of internal coordination with legal defensibility; what smallness actually offers is not reduced exposure but the feasibility of the one move that grants real immunity. That move is collective bargaining, which supplies antitrust cover through the labor exemption just as it would supply legitimacy through the consent of the governed — so that the two escapes from legal exposure are the same two routes that close the legitimacy deficit. The paper then shows why both are foreclosed: the statutory route has stalled despite a razor-thin procedural advance, the labor route is resisted by conferences unwilling to recognize the athletes as employees and is obstructed besides by a labor-law structure that places most of the relevant schools outside its reach, and a separate sex-equity exposure runs orthogonal to both and is escaped by no structure at all.

1. From legitimacy to legality

The previous paper closed on a convergence it did not yet name. The two routes that could close the new body’s legitimacy deficit — a statute, or a bargained counterparty representing the athletes — are, this paper will show, the same two routes that could close the enterprise’s antitrust exposure. This is not a coincidence but a structural fact with a single root: both legitimacy and legality, in the end, require either the authorization of the state or the genuine agreement of the governed, because those are the only two ways a restraint imposed by some on others can acquire a title that the others are bound to respect. Legitimacy asks whether the governed have reason to obey; legality asks whether the law will enforce. Both questions have the same two answers, because a restraint that the state has authorized is both legitimate and lawful, and a restraint to which the governed have genuinely agreed is both legitimate and, through the labor exemption, lawful as well. The convergence is the paper’s central finding, and it explains why the conferences’ difficulties on the two fronts have moved in lockstep.

The turn from legitimacy to legality is therefore a turn to the same strain seen through its legal face. Where Paper Five asked by what title the new body governs, this paper asks by what title its restraints survive a court. The restraints in question are the familiar ones: the cap on what schools may pay athletes, and the rules barring the outside payments that the clearinghouse polices. These restraints are the whole point of the enforcement apparatus, and they are, in the plainest terms antitrust law recognizes, agreements among competitors to limit what they pay for an input. The question this paper pursues is why such agreements survived for so long, why they are failing now, and why the move the conferences contemplate to save them would make their legal position worse rather than better.

2. The argument in brief

The paper advances five claims. First, the restraints at the center of college sports are concerted restraints of trade by horizontal competitors in the market for athlete labor, and the defense that the competitors are really a single entity incapable of conspiring with itself is unavailable to them. Second, the breadth of the Association’s membership supplied the antitrust buffer of Paper One in its precise legal form: breadth and heterogeneity let the restraints be analyzed under the rule of reason as the rules of a legitimate joint venture producing a distinctive product, rather than condemned as a naked agreement among dominant firms to suppress the price of labor. Third, the paradox follows directly — a narrower breakaway entity faces more exposure, not less, because it loses the breadth defense, concentrates market power, and makes the concerted action look like the monopsony it is; the conferences’ contrary intuition mistakes coordination for cover. Fourth, the only durable escapes from the exposure are a statutory antitrust exemption or the non-statutory labor exemption that flows from bargaining with a recognized union, and these are the same two routes that Paper Five identified for the legitimacy deficit. Fifth, both routes are foreclosed: the statute has stalled despite a one-vote procedural advance and carries internal contradictions, the labor route is refused by the conferences and obstructed by a labor-law structure that cannot reach most of the relevant schools, and a separate sex-equity exposure runs across both and is resolved by neither.

These claims complete the legal half of the volume’s pressure analysis. The remaining pressure dimension, broadcasting, is the asset over which the whole contest is fought, and Paper Seven takes it up; the antitrust treatment here prepares that paper by establishing that the media inventory is the prize whose value the labor restraints exist to protect.

3. Concerted restraint as the core problem

Antitrust law’s central hostility is to agreements among competitors that restrain trade, and the restraints at the heart of college sports are agreements among competitors of exactly the kind the law most distrusts. The schools and conferences compete, in the relevant market, to acquire the services of athletes; an agreement among them to cap what any of them may pay those athletes is an agreement among buyers to suppress the price of an input — a buyer-side restraint, or monopsony, which the law treats with the same suspicion as a seller-side cartel. That the restraint is dressed in the language of educational mission does not change its economic character, and the highest court has now said as much: the compensation caps were held to violate the prohibition on contracts in restraint of trade, and a concurring opinion questioned whether the schools could justify declining to pay the athletes a fair share of the revenue they generate, suggesting that legislation would be one route to address the matter.

A natural defense against the charge of concerted action is to deny that the action is concerted at all — to argue that the schools and conferences are not separate competitors but a single integrated enterprise, and that a single entity cannot conspire with itself any more than a corporation’s divisions can. This defense, the single-entity defense, is foreclosed to college sports by the same doctrine that forecloses it to the professional leagues. The governing analysis treats the separately owned, separately governed members of a sports league as distinct entities capable of conspiring for antitrust purposes, because each pursues its own interests and competes with the others off the field even as they cooperate to produce the games. The conferences and their member universities are, if anything, more plainly separate than the franchises of a professional league: they are independent institutions with their own revenues, their own brands, and their own competing interests, cooperating through an association rather than fused into one firm. The concerted-action element is therefore satisfied, and the restraints stand or fall on whether they can be justified, not on whether they are agreements at all.

This is the exposure in its irreducible form. The enterprise rests on agreements among competitors to restrain the price of athlete labor; those agreements are concerted action; and concerted action restraining trade is the precise thing the law exists to scrutinize. Everything else in the antitrust story is about whether that scrutiny ends in condemnation or in justification — and the answer, the next sections show, turns on the breadth of the group doing the restraining.

4. Breadth and the rule of reason

Not every restraint among competitors is condemned. The law distinguishes naked restraints, which serve only to suppress competition and are condemned without elaborate inquiry, from restraints ancillary to a legitimate cooperative venture, which are judged under the rule of reason by weighing their harm to competition against the genuine benefits of the venture they serve. A joint venture that produces something its members could not produce alone — a league, a shared product, a competition that requires common rules — may impose the restraints genuinely necessary to produce it, and those restraints are assessed on balance rather than condemned outright. The whole legal survival of college sports has depended on its restraints being placed in this second category: not naked agreements to hold down wages, but the rules necessary to produce the distinctive product of intercollegiate athletic competition.

Breadth was what made that placement plausible, and this is the legal buffer of Paper One stated in its doctrinal form. When a restraint on athlete compensation is promulgated by an association of more than a thousand institutions of every size, resource level, and competitive ambition, it can be presented as the membership defining the terms of a shared enterprise — a genuine joint venture with a genuine product, whose rules apply across a vast and varied field and serve purposes beyond the enrichment of any few. The heterogeneity of the membership is itself part of the justification, because it makes the restraint look like governance of a broad common undertaking rather than collusion among the handful who profit most. The protected zone the courts long extended to amateurism-defining rules rested on exactly this: the breadth and diversity of the Association lent its restraints the coloring of joint-venture rule-making, and the rule of reason, applied to such rules, tended to sustain them.

That protected zone has narrowed as the amateurism justification has weakened, and the recent litigation is best read as the rule-of-reason balance tipping against restraints that can no longer claim to serve a genuine educational product rather than a commercial one. The recognition that much of the enterprise’s model would fail as an unreasonable restraint of trade if fully subjected to antitrust scrutiny is now widely shared, and it is precisely this recognition that drives the search for some external source of immunity. But the point to carry into the paradox is structural and prior to any particular case: whatever protection the restraints retain under the rule of reason flows from the breadth and heterogeneity of the group imposing them. Breadth is the defense. And the breakaway proposes to discard exactly that.

5. The paradox stated

The paradox can now be stated plainly. The conferences contemplating a breakaway suppose that a smaller, self-governing bloc would be better positioned against legal challenge — that a tight group of sixteen institutions, free of the unwieldy thousand-member association, could set and enforce its own rules with less exposure. The supposition is exactly backwards. A narrower group faces more antitrust exposure, not less, and for three connected reasons that all run through the breadth defense the bloc would be abandoning.

The first reason is the loss of the joint-venture coloring. A restraint on athlete compensation imposed by sixteen of the wealthiest programs cannot plausibly be presented as the governance of a broad and varied common enterprise; it presents instead as an agreement among the dominant buyers of athlete labor to hold down its price, which is the naked restraint the law condemns most readily. The heterogeneity that lent the thousand-member association’s rules the appearance of governance is gone, and with it the strongest argument that the restraints serve a product rather than a wage-suppression scheme. The breakaway does not shed a legal burden; it sheds the legal defense.

The second reason is the concentration of market power. The rule-of-reason analysis weighs the restraint against the market power of those imposing it, and a smaller bloc that controls the most valuable programs concentrates rather than dilutes the relevant power in the labor market. A restraint imposed by a group with overwhelming power over the market for elite athlete labor is harder to justify, not easier, because the harm to competition is greater and the procompetitive justification thinner. The bloc’s very dominance, which is its commercial strength, is its antitrust weakness.

The third reason is the nakedness of the action. A small group of evident competitors agreeing among themselves on what they will pay is the paradigm case of horizontal price-fixing, and the smaller and more obviously self-interested the group, the more the agreement resembles the paradigm. The thousand-member association could hide its restraints behind the breadth of its membership and the language of its mission; sixteen revenue-driving programs agreeing on a wage cap can hide behind nothing. The action is naked in the precise legal sense, and naked restraints invite condemnation without the forgiving balance of the rule of reason.

The conferences’ contrary intuition is not baseless, but it identifies the wrong benefit. The thinking attributed to the breakaway leagues is that a bloc of sixteen schools might evade antitrust challenges by virtue of its size and bargain with players more efficiently. The bargaining-efficiency half of that thought is sound; the evasion half is confused. A smaller group is indeed easier to organize into a bargaining relationship, and bargaining is the path to real immunity. But it is the bargaining, not the smallness, that supplies the cover, and smallness without bargaining supplies only heightened exposure. The conferences sense correctly that a tighter bloc could do something the sprawling association could not, and misname that something as evasion when it is in fact the feasibility of collective bargaining. What they would gain by narrowing is not protection from antitrust but the practical ability to reach the agreement that alone confers protection — and only if they take the step that agreement requires.

6. The two escapes and the convergence

There are exactly two durable escapes from the antitrust exposure, and naming them reveals the convergence promised at the outset. The first is a statutory exemption: an act of Congress declaring the enterprise’s restraints lawful or immunizing them from challenge, which removes the exposure by legislative fiat. This is the legal-rational authority of Paper Five seen from the antitrust side; a statute that authorizes the restraints makes them both legitimate and lawful at once. The second is the non-statutory labor exemption: the doctrine, settled in the professional-league context, that restraints on the labor market which grow out of a bona fide collective-bargaining relationship are governed by labor law rather than antitrust, and so are immune from antitrust attack even when they cap wages. A salary cap agreed through arm’s-length bargaining with a recognized union of the workers is shielded; the same cap imposed unilaterally is not. This is the consent of the governed of Paper Five seen from the antitrust side; an agreement to which the athletes, through their representatives, have genuinely assented is both legitimate and, through the labor exemption, lawful.

The convergence is now visible in full. The two routes that Paper Five identified as the only sources of legitimacy the new body could draw upon — statute and the consent of the governed — are identically the two routes that this paper identifies as the only durable escapes from antitrust exposure. They coincide because both legitimacy and legality reduce, in the end, to the same pair of titles: the authorization of the state, or the genuine agreement of those bound. A restraint backed by neither is illegitimate in Paper Five’s sense and exposed in this paper’s sense, and it is illegitimate and exposed for the same reason — that it is power imposed by some on others without title. The enterprise’s legitimacy crisis and its antitrust crisis are not two problems but one problem with two faces, and they have one pair of solutions because they have one root.

This convergence sharpens the stakes of the breakaway. The bloc that narrows its membership worsens its antitrust exposure, as Section 5 showed, and gains nothing toward either escape merely by being small — except the feasibility of the second route, collective bargaining. A breakaway that narrowed the group and then bargained with a recognized representative of the athletes could close both the legitimacy deficit and the antitrust exposure together, through the single instrument of a collective-bargaining agreement. A breakaway that narrowed the group and did not bargain would have discarded the breadth defense while acquiring no replacement, leaving itself more exposed than the association it left. The breakaway’s wisdom thus depends entirely on whether it is a prelude to bargaining or a substitute for it, and the remaining sections show that the conferences want it to be neither — that they seek the statute they cannot pass and refuse the bargaining the statute is designed to prevent.

7. Why the statutory route is blocked

The statutory route is the one the conferences prefer, because it would grant immunity without requiring them to recognize the athletes as employees, and they have pursued it for years. The Association has lobbied Congress for an exemption establishing that the athletes are not employees, and the legislative effort has sought, in its fullest form, to grant the enterprise’s bodies immunity from both antitrust and state-court challenge. The effort has nonetheless stalled, and the manner of its stalling is revealing.

The legislation came closer than the volume’s earlier papers might suggest and then faltered at the threshold of enactment. A bill that would have prohibited the athletes’ classification as university employees and granted the Association, the new enforcement commission, the conferences, and the schools immunity from antitrust and state-court suits arising from their rules passed a procedural vote by a single vote, two hundred ten to two hundred nine, in December 2025, before drawing bipartisan opposition as a final vote approached. A one-vote procedural margin followed by bipartisan resistance is not the signature of a measure on its way to law; it is the signature of a measure that has reached the limit of its support. After more than a dozen congressional hearings and a dozen drafts, the enterprise remains no closer to the federal bill it has long sought, and the recurring assessment is that congressional clarification is nonexistent and that the courts, agencies, and bargaining processes will determine the matter in the legislature’s absence.

The bill’s internal structure compounds its political difficulty and connects the statutory route to the labor route in a way that deserves notice. The legislation sought simultaneously to bar employee status and to grant antitrust immunity — that is, to close the labor-exemption escape while opening the statutory one. This pairing is coherent from the conferences’ standpoint, since barring employee status would foreclose the unionization they wish to avoid while the statutory immunity would supply the antitrust cover that the foreclosed labor route would otherwise have provided. But the pairing also means that the bill’s failure is doubly consequential: a failed bill not only denies the statutory escape, it leaves the labor escape as the only remaining option while the same coalition that wrote the bill continues to resist taking it. The conferences have legislated against their own fallback. Having sought a statute that would make bargaining unnecessary and employee status impossible, they are left, when the statute fails, needing the very bargaining and the very recognition the statute was meant to render moot.

8. Why the labor route is obstructed

The labor route — recognizing the athletes as employees, bargaining with their representatives, and securing immunity through the resulting agreement — is the escape that the conferences refuse and that the structure of labor law partly forecloses regardless of their preferences. Both obstacles must be understood, because together they explain why the route that would solve the problem most completely is the least likely to be taken.

The first obstacle is refusal, and it is the same reluctance Paper Five traced: to bargain with the athletes is to recognize them as the parties bargaining requires, and the conferences resist that recognition. The recognition is contested in active litigation. A pending case argues that the athletes are employees within the meaning of federal wage law, owed unpaid wages, with the schools and the Association functioning as joint employers; were the athletes to prevail, the schools could face damages in the billions and a discovery process more invasive than the antitrust litigation they have already endured. A federal appeals court has supplied a multi-part test for when the athletes may count as employees under that law, and the question remains open and consequential. But the political and administrative winds have turned against recognition. Players dropped a prominent unionization effort, a players’ association withdrew its unfair-labor-practice charges, and the labor board’s general counsel who had asserted that the athletes should be recognized as employees was dismissed; the current administration has directed agencies to reinforce the position that the athletes are not employees, and the acting general counsel rescinded the memoranda that had supported employee status. The recognition that would unlock the labor exemption is thus receding rather than approaching, pushed back by both the conferences’ resistance and the prevailing administrative stance.

The second obstacle is deeper and structural, and it would obstruct the labor route even if the conferences embraced it and the agencies favored it. The non-statutory labor exemption was built for the professional leagues, in which every team is a private employer subject to the national labor law, so that a single league-wide union and a single collective-bargaining agreement can cover the entire enterprise. College sports is not structured that way. A labor-board regional finding that one school’s basketball players were employees entitled to vote on unionization signaled union risk for private institutions, but the national labor board’s jurisdiction does not reach public universities, which fall outside it entirely. The great majority of the power-conference programs are public universities, subject not to the national labor law but to a patchwork of state public-sector labor regimes that vary widely and in many states do not provide for athlete bargaining at all. A single national collective-bargaining agreement covering both the private and the public schools cannot be assembled the way the professional leagues’ agreements were, because the public schools sit beyond the reach of the law that makes such agreements possible. The labor exemption presupposes a unified bargaining structure that the public-private composition of college sports forbids.

This is a structural obstacle of the first importance, and it has no counterpart in the professional model that the labor exemption was designed around. The escape that most completely resolves the antitrust exposure — bargaining, which supplies both immunity and legitimacy at one stroke — is the escape that the federal structure of labor law renders nearly impossible to assemble across an enterprise most of whose members are state instrumentalities outside the relevant law. A breakaway bloc could, in principle, sort itself toward feasibility here, but only by confronting the same public-private divide internally, and only after extending the recognition it currently refuses. The labor route is therefore obstructed twice over: by the conferences’ refusal, which a change of will could remove, and by the architecture of labor law, which a change of will cannot.

9. The exposure no structure escapes

One exposure stands apart from the antitrust analysis and is resolved by neither escape, and it must be named because it qualifies every conclusion the paper has reached. Sex-equity law conditions the schools’ federal standing on balanced provision of athletic opportunity and resources between men and women, and the allocation of the compensation cap collides with that requirement no matter how the antitrust question is resolved. The three-way bind of Paper Four reappears here in its legal-exposure form: an allocation of the cap toward the male revenue sports, which the market dictates, invites sex-discrimination challenge; an even allocation, which avoids that challenge, invites the argument that the schools have paid female athletes far above any market measure; and either path interacts with the roster contraction that the cap compels. This exposure is orthogonal to the antitrust escapes. A statutory antitrust exemption would not cure it, because it is not an antitrust problem. The labor exemption would not cure it, and a collective-bargaining agreement negotiated by a bargaining unit dominated by the male revenue sports might deepen it, by entrenching an allocation that the sex-equity law would then measure against the opportunities provided to women.

The sex-equity exposure thus runs across the whole structure and is escaped by no configuration the volume has examined. It does not depend on whether the enterprise stays in the Association or breaks away, whether it secures a statute or bargains a contract, whether it narrows or remains broad. It attaches to the allocation of money among athletes of both sexes, and that allocation must be made under any structure that pays athletes at all. The recognition matters because it sets a limit on what any of the antitrust escapes can accomplish: even the bloc that narrowed its membership, bargained with a recognized union, and secured the labor exemption — the configuration that would close both the legitimacy deficit and the antitrust exposure — would still face the sex-equity exposure undiminished, and might face it intensified by the very agreement that solved its other problems. No route resolves everything, and the route that resolves the most resolves this least.

10. Conclusion

The restraints at the center of college sports are concerted restraints of trade by competitors in the market for athlete labor, and the single-entity defense that might deny their concerted character is unavailable. The breadth of the Association’s membership supplied the antitrust buffer of Paper One in its doctrinal form, lending the restraints the coloring of joint-venture governance under the rule of reason; and the paradox follows that a narrower breakaway entity faces more exposure rather than less, because it discards the breadth defense, concentrates market power, and makes the concerted action look like the naked wage-suppression it is. The conferences’ intuition that smallness brings safety mistakes the feasibility of bargaining for a reduction in exposure; smallness without bargaining brings only greater risk. The two durable escapes from the exposure are a statutory antitrust exemption and the non-statutory labor exemption that flows from collective bargaining, and these are the same two routes — statute and the consent of the governed — that close the legitimacy deficit, because legitimacy and legality share the single root of requiring either the state’s authorization or the governed’s agreement. Both routes are foreclosed: the statute has stalled at a one-vote margin against bipartisan resistance and is built to bar the employee status its own failure makes necessary; the labor route is refused by conferences unwilling to recognize the athletes and obstructed by a labor-law structure that cannot reach the public universities composing most of the enterprise; and a sex-equity exposure runs across every configuration and is cured by none. The enterprise is caught — worsening its exposure if it narrows, unable to pass the statute it prefers, unwilling and partly unable to take the bargaining that alone would immunize it, and exposed on a further front that no escape touches.

What remains to be examined is the asset over which this entire contest is fought. The labor restraints exist to protect the value the enterprise generates, and that value is overwhelmingly the value of the broadcast inventory the conferences hold. Paper Seven turns to broadcasting as the real organizing force of the enterprise — the asset whose contracts dictate the shape of any breakaway, whose networks function as principals in their own right, and whose pursuit created the have-and-have-not gap that set the whole strain in motion. The antitrust analysis of this paper has shown why the restraints on the labor market are so hard to defend; the next paper shows why the parties cling to them anyway, by showing what they are defending.

Notes

1. The single-entity question is governed by the principle that separately owned and managed members of a sports enterprise are distinct actors capable of concerted action, applied to a licensing arrangement among professional-league members. The college enterprise’s members — independent universities cooperating through an association — are at least as plainly separate, so the defense is unavailable and the concerted-action element is satisfied.
2. The per se / rule-of-reason distinction and the ancillary-restraints doctrine are standard antitrust frameworks; the protected zone long extended to amateurism-defining rules derives from the foundational decision subjecting the enterprise’s restraints to rule-of-reason analysis while sheltering rules said to define the amateur product. The erosion of that zone is the through-line of the recent litigation.
3. The non-statutory labor exemption shields labor-market restraints that grow out of a bona fide collective-bargaining relationship from antitrust attack, on the ground that national labor policy rather than antitrust governs the terms reached through bargaining. Its application presupposes employee status, a bargaining representative, and a bargaining relationship — the elements college sports presently lacks.
4. The public-private obstacle in Section 8 is structural and underappreciated. The national labor law reaches private employers; public universities are state instrumentalities outside the labor board’s jurisdiction and subject instead to varied state public-sector regimes. A single national bargaining agreement across a majority-public membership cannot be assembled on the professional-league template, which assumed uniformly private employers.
5. The statutory and labor routes are partly mutually exclusive as a political program: legislation barring employee status would foreclose the unionization that the labor exemption requires. A failed bill therefore leaves the labor route as the sole remaining escape while the coalition that authored the bill continues to resist it — the bind described in Section 7.
6. The sex-equity exposure of Section 9 is developed in its distributive dimension in Paper Four; here it is treated as a legal exposure orthogonal to the antitrust escapes. The interaction by which a collective-bargaining agreement might deepen rather than relieve it is noted as a limit on what even the most complete antitrust escape can accomplish.

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