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Page Number

79

Abstract

The NCAA has enjoyed being the primary provider of college athletics for over a century. It has used this dominant position to impose its authority over member universities in a wide variety of areas. The NCAA has a plethora of enforcement measures and has enjoyed extensive judicial protection for its regulations, despite the fact that it essentially operates as a cartel. It has withstood an overwhelming majority of the charges alleging that it violates the Sherman Act by unreasonably restraining competition and it appears that this has resulted in the NCAA developing a feeling of immunity.

The NCAA's most restrictive punishment is appropriately known as the "death penalty." The NCAA uses the "death penalty" to exclude a university from competing in a certain sport for a period of at least one year. While this appears to be a blatant restraint of competition, the "death penalty" has never been successfully challenged. In 2012, the NCAA considered imposing the "death penalty" on Penn State University following the revelation of a child molestation scandal surrounding the Penn State football team. Ultimately, the NCAA decided to institute different sanctions on Penn State; however, the threat of the NCAA freely imposing the "death penalty" in this type of situation continues to exist. The Penn State situation serves as an important example because this is the first time the NCAA has contemplated implementing the "death penalty" for strictly social policy reasons.

This Note proposes that the use of the "death penalty" against Penn State would have violated the Sherman Act. The NCAA likely would not be able to advance any sustainable justifications for using the "death penalty" against Penn State, resulting in the punishment being declared an unreasonable restraint of competition. While this Note concludes that the "death penalty" would not have been an appropriate sanction in this particular case, it provides examples as to when it may be used by the NCAA as a viable punishment in the future. This Note should serve as a reminder to the NCAA that it is not immune from Sherman Act scrutiny and should consider the antitrust implications of its actions in the future.

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