University of Nebraska head football coach Matt Rhule told media on Saturday that his program is likely to cancel its spring game, a televised intrasquad game played in April that is popular with fans, because he worries rival programs will use it to scout and poach Cornhuskers players.
It was the latest sign that as barriers to players’ economic opportunities are lifted on account of antitrust law, “big time” college sports are—for good or bad—more closely resembling professional sports.
“The word ‘tampering’ doesn’t exist anymore … it’s just an absolute free open common market,” Rhule complained. He’s mindful that after last year’s spring game, six of his players entered the transfer portal. It has become common for colleges to eye other schools’ players and, aided by boosters and collectives, recruit and present NIL offers to them in hopes they transfer.
Rhule’s frustrations were explicit. “So you go out and bring in a bunch of new players and showcase them for all the other schools to watch?” he rhetorically asked. “Doesn’t make a lot of sense to me.”
Rhule’s comments reflect the realities of modern college sports. Players are recruited by rival programs with offers that are ostensibly about NIL, which is supposed to reflect the commercial use of a player’s right of publicity (like an endorsement deal or sponsorship). Substantively, NIL offers often resemble inducements akin to signing bonuses in pro sports employment contracts.
The NCAA permits this arrangement out of legal necessity. The association has faced repeated antitrust challenges over athlete compensation rules. The core antitrust problem for the NCAA stems from the fact that its member institutions, colleges and conferences are competing businesses. When competing businesses join hands to restrain a market—here, the market for players’ services—they can run afoul of antitrust law.
A college or conference, left to act without an NCAA rule, could more aggressively recruit athletes by offering them more money and other benefits. Under an NCAA rule, athletes are thus denied the monetary difference between what they can receive and what they would have received without that rule.
Until the NCAA lost the Alston case at the U.S. Supreme Court in 2021, NCAA rules had generally received deferential review. The underlying logic: College sports are of a fundamentally different character than pro sports and therefore deserve different treatment. College athletes are full-time, degree-seeking students, whose studies are supposed to be the most important feature of their collegiate experience, hence the term “student-athlete.” Further, consumers might be less interested in following college sports if they morphed into an inferior facsimile of pro sports. That logic was criticized by Justice Neil Gorsuch’s majority opinion in Alston and flat-out eviscerated by Justice Brett Kavanaugh’s concurring opinion, which described the NCAA and its member institutions as a cartel that suppresses athlete compensation.
The NCAA’s transfer portal is an attempt to reduce restrictions on athletes who wish to transfer schools, including by making clear the player doesn’t need a coach’s permission to leave. The portal also enables players to effectively declare to other schools they’re interested in moving on. At the same time, the portal features mechanisms that provide colleges some certainty on the timing of transfers and assurances of transparency.
But the portal is still a restraint on athletes’ movement since it regulates them in ways they do not face in their other role as students. Colleges permit student transfers so long as a school decides to admit a student and agrees to accept all or some of their credits–in other words, a transfer is an academic matter that each school decides on its own, rather than by colluding with other colleges on allowable rules.
The NCAA averted a potential antitrust test of the transfer portal in the recent dispute involving former University of Wisconsin-Madison cornerback Xavier Lucas. He joined the University of Miami in a move that Wisconsin bemoaned amounted to “tampering” and outside the boundaries of the transfer portal. Lucas, who retained sports attorney Darren Heitner, could have brought a lawsuit had he been unable to join Miami. He would have likely argued the portal system illegally held his collegiate career hostage in violation of antitrust law.
The NCAA’s ability to regulate transfers was rebuked in Ohio v. NCAA, where a federal judge issued a restraining order against the NCAA’s restriction on athletes who had transferred to a college and then sought to transfer to another college. In that decision, Judge Preston Bailey chastised eligibility rules that deny athletes the chance to pursue “the best environment for their academic, mental, and economic well-being.” The NCAA warned Bailey’s ruling would trigger a “system of perpetual and unchecked free agency” in D-I sports.
Back to Rhule. From the standpoint of a power conference head football coach, his reasoning makes a ton of sense. Signed to an eight-year, $74 million contract, Rhule, who previously coached the Carolina Panthers, is under intense pressure to win. As he observes, the prospect of players who he and his staff invested time and resources to recruit then dropping Nebraska for another school is both counterproductive and frustrating. To the extent the spring game makes losing players more likely, dispensing with the tradition is logical.
But as a college official and mentor to students, Rhule’s comments are more problematic. He appears to want anti-tampering rules, trade secret protections and other measures that could restrain college player movement and that are found in the major pro leagues. However, those measures are exempt from antitrust scrutiny in pro sports because they’re borne through a bargaining relationship between leagues and players, who are employees that are union members.
As of now, college athletes aren’t employees and since unions only consist of employees, those athletes can’t unionize. That means the measures Rhule seeks aren’t possible in college sports without the risk of antitrust litigation. The other option for the NCAA, conferences and colleges would be to recognize athletes as employees who in turn unionize, but as shown through the Dartmouth and USC matters at the NLRB, college sports leaders adamantly oppose college athletes forming unions.
The NCAA, meanwhile, is defending against Johnson v. NCAA. The case involves athletes who seek employment recognition within the meaning of the Fair Labor Standards Act. Don’t be surprised if Rhule’s comments appear in a future court filing by the plaintiffs. His comments are consistent with the plaintiffs’ thesis that the relationship between at least some D-I athletes and their schools is viewed by their coaches as functionally the same as the relationship between pro athletes and their teams.
The NCAA also hopes to reduce its legal challenges by negotiating a settlement to resolve the House, Carter and Hubbard antitrust litigations and is lobbying Congress to provide both an antitrust exemption and a declaration that college athletes aren’t employees. The NCAA continues to insist that college sports are fundamentally different from pro sports and the law ought to recognize the distinction. A major college football coach describing college football like the NFL probably won’t help.
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