Department of Justice Antitrust Division Plan in Response to Executive Order 14322 “Saving College Sports”

On July 24, 2025, President Trump issued Executive Order 14322 “Saving College Sports” (“EO”).[1]  The EO explains that escalating developments within the college sports ecosystem present an existential threat to the institution of collegiate athletics.  At the core of this “uniquely American institution” is the “life-changing educational and leadership-development opportunities” that more than half a million student-athletes receive each year, many with the benefit of academic scholarships.[2]

College athletics “provide substantial support to local economies and form an indelible part of family activities, pastimes, and culture in many communities.”[3]  These community benefits across the country have also generated great commercial success.  As a result, competition in college athletics has spawned an arms race among collegiate athletics programs (and affiliated booster groups) to attract revenue-generating student-athletes.  The EO explains that escalating competition for revenue-generating student-athletes threatens the long-term viability of many non-revenue-generating college sports programs—with an acute risk to women’s sports.  Moreover, a “race to the bottom” among states to promulgate permissive name, image, likeness (“NIL”) laws further risks undermining the non-professional, educational character of college sports that is valued by students and fans alike.[4]  Absent robust and innovative responses across the college sports ecosystem, the EO cautions that the institution of college sports “will soon cease to exist.”[5]  The loss of the historical institution of college sports or a reduction in the output or quality of college sports would harm student-athletes, fans, and local college communities.

To address these concerns, the EO sets forth a framework for preserving and expanding the output and quality of all college sports, allowing student-scholar athleticism to flourish as a national institution and consumer product distinct from professional sports.[6]  The EO tasks the Department of Justice (“DOJ”) with developing a plan to advance the policies set forth in the EO.[7]  The DOJ Antitrust Division has therefore developed a plan that includes applying the below legal precedents in its enforcement involving college sports, in a manner consistent with the policies and purposes of the EO.[8]

To start, the innovative private ordering necessary to realize the various purposes and policies reflected in the EO is likely to require some level of horizontal coordination among collegiate athletics programs.  While the Sherman Act prohibits unreasonable restraints of trade, the Supreme Court has provided a robust and flexible legal framework for analyzing collaboration in collegiate athletics.  See NCAA v. Alston, 594 U.S. 69 (2021).  The rule-of-reason framework adopted in Alston is sufficiently flexible to account for procompetitive justifications that may arise in response to the EO’s policy directives, and thus serves as a lodestar for legal evaluation of competitive restraints in the college sports ecosystem.

1. The Antitrust Rule of Reason Is Likely to Apply to Conduct Implicated in the EO.

The vast majority of restraints involving college sports “are subject to the rule of reason” because college sports is an industry in which some “horizontal restraints on competition are essential if the product is to be available at all.”  Alston, 594 U.S. at 88, 91 (quoting NCAA v. Bd. of Regents of Univ. of Okla., 468 U.S. 85, 101-02 (1984)).  An appropriate rule-of-reason analysis must always be an “enquiry meet for the case, looking to a restraint’s circumstances, details and logic.”  Cal. Dental Ass’n v. FTC, 526 U.S. 756, 758 (1999).

Under traditional rule-of-reason analysis, a “burden-shifting framework” is used “to distinguis[h] between restraints with anticompetitive effect that are harmful to the consumer and restraints stimulating competition that are in the consumer’s best interest.”  Ohio v. Am. Express Co, 585 U.S. 529, 541 (2018) (alteration in original) (quoting Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877, 886 (2007)).  Under this three-step framework, “the plaintiff has the initial burden to prove that the challenged restraint has a substantial anticompetitive effect that harms consumers in the relevant market.”  Id.  If the plaintiff establishes such an effect, the burden at step two “shifts to the defendant to show a procompetitive rationale for the restraint.” Id. at 541-42.  “If the defendant makes this showing, the burden shifts back to the plaintiff” at step three “to demonstrate that the procompetitive efficiencies could be reasonably achieved through less competitive means.” Id. at 542.  If the plaintiff does not identify such alternatives, the court must balance the anticompetitive and procompetitive effects of the restraint.  Epic Games, Inc. v. Apple, Inc., 67 F.4th 946, 994 (9th Cir. 2023).

2. The Antitrust Rule of Reason Can Accommodate Various Procompetitive Objectives Contemplated in the EO.

For student-athletes, the opportunity to play college sports while earning a degree can be a life-changing experience.  Student-athletes benefit from the complementarity of their education on and off the field.  For example, “a substantial majority of female executives at the largest American companies participated in sports during adolescence, many at the high school or collegiate level.”[9]  The educational benefits of collegiate athletics foster not only personal career success; they spill over into American communities by “forging the leaders that drive our Nation’s success.”[10]  We are reminded of these national benefits every two years when America’s medal winners—the vast majority of whom are current or former collegiate athletes—stand on the Olympic podium.[11]

While some student-athletes earn compensation for NIL, for most, the quality of the educational experience each receives on and off the field is the most significant return.  Consumers, too, value a system of scholar-athletics centered around the educational institution of college: a crucial draw of college-sports viewership is fans’ shared connection to an alma mater where the athletes pursue an education.  The collegiate educational experience thus sits at the heart of college athletics and the institution of college sports.  Courts have long recognized the importance to student-athletes of “integrat[ing] athletics with academics,” McCormack v. NCAA, 845 F.2d 1338, 1345 (5th Cir. 1988), and a meaningful aspect of those players’ experience is competing as a student under the banner of an academic institution, not a professional business.  The EO seeks to preserve and expand these aspects of college sports for all student-athletes. 

Each of these aspects represents a potential procompetitive benefit that may be considered under the rule of reason.  In Alston, the Supreme Court emphasized that “firms deserve substantial latitude to fashion agreements that serve legitimate business interests, including agreements that may include efforts aimed at introducing a new product into the marketplace.” 594 U.S. at 101.  In cases that involve a relevant market defined around student-athletes, several market realities inform legal evaluation of competitive restraints and procompetitive justifications.

It is well established that there are markets for student-athletic labor because “colleges compete for the services of athletic recruits by offering them scholarships and various amenities, such as coaching and facilities.”  O’Bannon v. NCAA, 802 F.3d 1049, 1070 (9th Cir. 2015).  Moreover, schools engaged in intercollegiate athletics competitions must agree on basic aspects of and regulations concerning the competition; without rules to govern a competitive league, there would be no college sports, and by extension, no labor demand for student-athletes.  See Alston, 594 U.S. at 90-91.  The rule of reason accounts for these characteristics of college sports.  College athletics programs implementing policies consistent with the EO thus have an opportunity to present evidence that rules and related restraints “yield a procompetitive benefit,” e.g., increased output or quality in markets for collegiate scholar-athletics.  See Alston, 594 U.S. at 84, 99.

For example, the participation of student-athletes in intercollegiate athletic competitions as part of a broader academic enterprise, distinct from an environment in which student-athletes function as paid professionals divorced from an educational mission, may “widen[] consumer choice” for viewers “by providing a unique product”—an athletic competition in which fans and student-athletes share an allegiance to the educational mission of an alma mater.  Alston, 594 U.S. at 82.

Increased consumer demand for viewing college sports could also lead to increased (and more sustainable) compensation for student-athletes, more educational and athletic opportunities across a range of sports, or increased educational benefits for the student-athlete community.[12]  Indeed, the EO makes this connection explicit: colleges that engage in revenue-sharing with student-athletes should split the upside of higher viewership “in a manner that preserves or expands scholarships and collegiate athletic opportunities in women’s and non-revenue sports.”[13]

3. Conclusion.

In applying the flexible analysis required under the antitrust rule of reason, courts are likely to consider the various procompetitive objectives advanced by the EO.  While DOJ’s exercise of prosecutorial discretion remains fact-specific, multiple benefits contemplated by the EO—increasing output, quality, and consumer choice in college sports—are grounded in well-established legal precedent and will be considered by DOJ in any future enforcement decisions concerning college sports.