Elbert RobertsonThis year’s “March Madness” coincides with a National Labor Relations Board ruling that Northwestern University football players qualify as “employees” eligible to unionize and on a related Sherman Act case filed against the NCAA in Federal District Court.

Suffolk University Law School Professor Elbert Robertson is available to comment on:

  • The NLRB ruling that student-athletes truly are employees of the NU football program based on the total hours of football-related work they perform relative to studying and because their labor is totally controlled by the University.
  • The class-action lawsuit claiming that the NCAA has acted as a price-fixing cartel that monopolizes the economic benefits of college sports. The suit is specific to student-athletes engaged in Division 1 men’s basketball and football and aims to eliminate rules limiting their “compensation” to tuition, meals and related fees. The suit argues that these student-athletes earn vast sums of money for athletic conferences and the NCAA.

“These Northwestern football players may be employees, depending on the outcome of an appeal, but they are undeniably also ‘students,’” said Robertson. “The student-athlete ideal, fact or fiction, necessarily restrains the extent and ways in which full-time students who are recipients of university scholarships may advance their individual financial interests in violation of the NCAA rules or in any way contrary the University's educational mission.

“‘Bidding wars’ between universities for unlimited and astronomical ‘salaries’ for star athletes above and beyond the costs of their educations would be both a financial and educational disaster for the non-profit university given its core educational mission,” said Robertson. “Universities already have made this mistake, with compensation of athletic coaches outstripping the salaries of university presidents, distinguished faculty and key administrators in some cases. University athletics programs’ roles as ‘farm teams’ for professional sports further exacerbate this problem.”

Robertson said that the ruling and the lawsuit raise a number of questions:

  • Should the "free market" determine student-athlete "salaries"?
  • What about prospective "bidding-wars" for outstanding athletes and their potentially deleterious budgetary effects on scholarship availability for other needy students?
  • Should student athletes become a wealthy and privileged class on campus, further alienated from their academic peers than is already (sadly) the case?
  • What is the non-profit university truly seeking to maximize: Athletic prestige and financial gain or academic excellence and educational access?

“The NCAA is a cartel without which there would be no college sports as we know it” because the NCAA makes the rules of the games and enforces regulation for all collegiate sports, a fact recognized by the U.S. Supreme Court in the 1984 NCAA antitrust case in holding that price-fixing and output restrictions by the NCAA could not be condemned per se, according to Robertson.

He also referenced the 1993 U.S. v. Brown University case involving tuition and financial aid price-fixing, which he wrote about in, “Antitrust as Anti-Civil Rights?” in Yale Law and Policy Review.

Robertson teaches antitrust law and related topics. He has served as a special antitrust attorney and adviser in the Competition Division of the Office of General Counsel of the Federal Communications Commission.

He is a member of the International Association for the Philosophy of Law & Social Philosophy; the American Society for Political and Legal Philosophy; the Association for Public Policy Analysis & Management; and the Massachusetts State Advisory Committee of the U.S. Civil Rights Commission.