Collegiate athletic conferences generate billions of dollars annually. With conferences competing for $300 million plus television contracts, it has become increasingly important that conferences align themselves with the highest quality institutions possible. As a result, individual institutions have shifted from one conference to another with hopes of cashing in on higher revenue opportunities. The regional athletic conferences that govern these individual institutions are different from most commercial actors because their very nature requires that they be regulated on a national/regional level if they are to exist at all. Each member of a conference voluntarily agrees to be bound by the conference’s constitution and by-laws. As such, it is imperative that the by-laws and rules be applied uniformly across the conference in order to have any possibility of functioning effectively.
However, subjecting regional athletic conferences to state antitrust laws imposes an excessive burden on the conference without a corresponding local benefit. If regional athletic conferences were subject to state antitrust claims, the member institution’s state with the strictest antitrust laws would effectively regulate the activities of the member institutions in other states. In effect, a conference would be stripped of its ability to freely adopt and enforce its own procedural regulations. To avoid these burdens, regional athletic conferences should be able to seek protection by invoking the dormant side of the Commerce Clause in the face of state antitrust claims. The trajectory of case law on the subject suggests that it is logical that regional athletic conferences should enjoy the protection of the dormant Commerce Clause.
Sean R. Madden, Out of Bounds: Commerce Clause Protection from State Antitrust Statutes for Regional Athletic Conferences, 38 Campbell L. Rev. 109 (2016).