The Sherman Act protects sellers of goods and services, including workers who sell their labor, from powerful purchasers. Gregory J. Werden, Monopsony and the Sherman Act: Consumer Welfare in a New Light, 74 Antitrust L.J. 707, 714 (2007). Senator Sherman himself stated that trusts and monopolies “regulate prices at their will, depress the price of what
they buy and increase the price of what they sell.” Cong. Rec. 2461 (1890). Accordingly, “[t]he [Sherman Act] does not confine its protection to consumers, or to purchasers, or to competitors, or to sellers.” Mandeville Island Farms, Inc. v. American Crystal Sugar Co., 334 U.S. 219, 236 (1948). To ensure protection of upstream market participants, antitrust
analysis under the rule of reason is carefully circumscribed. It “does not open the field of antitrust inquiry to any argument in favor of a challenged restraint that may fall within the realm of reason.” National Society of Professional Engineers v. United States, 435 U.S. 679, 688 (1978).
The Ninth Circuit undercut both the Sherman Act’s protection of sellers and this Court’s guidance on analyzing restraints of trade. The respondents— current and former college basketball and football players—sell their athletic services to the member colleges of the National Collegiate Athletic Association (NCAA). They allege that the NCAA and its member
colleges collusively restrained intercollegiate competition for their athletic services by capping compensation for players at the cost of attendance and thereby deprived them of the right to earn competitive pay for their hard work and talent. Once the college athletes established a prima facie case under the rule of reason,3 the district court allowed the NCAA to
rebut this presumption by showing benefits to other groups, such as viewers of college sports, and credited one of these justifications: purported viewer interest in college sports on account of limited player compensation. The Ninth Circuit affirmed the district court’s ruling, including its balancing of harms to the college athletes from the NCAA’s trade restraints against their supposed benefits to viewers of college sports.