More on the Less Restrictive Alternative

Rick’s latest post gives me a perfect opportunity to shamelessly plug my new article, “The Misuse of the Less Restrictive Alternative Inquiry in Rule of Reason Analysis,” which was recently published in the American University Law Review and can be found here.

As Rick notes in his post, Mountain West’s proposal could be seen as a less restrictive alternative to the current BCS system. How is that relevant to the antitrust analysis of the BCS? Well, virtually every court (except the Supreme Court) has adopted a form of the less restrictive alternative inquiry as an independent and dispositive prong of the rule of reason analysis under Section 1 of the Sherman Act. Under the traditional rule of reason test (which, by the way, is still the only rule of reason test the Supreme Court has used since 1918), courts are asked to determine the net competitive effect of a restraint by balancing its procompetitive benefits and anticompetitive effects. If the restraint is net procompetitive, it is legal. If it is net anticompetitive, it is illegal. Lower courts, however, have added another step to the rule of reason. Even if the restraint is net procompetitive, it is illegal if there is a less restrictive alternative for achieving the procompetitive benefits. So, if the NCAA could prove that the current BCS system achieves significant procompetitive benefits and is net procompetitive, a plaintiff could still argue that the current BCS system is illegal under Section 1 if there is a less restrictive alternative (for example, Mountain West’s proposal) for achieving these benefits.

As I argue in my article, this use of the less restrictive alternative is fatally flawed from both a practical and theoretical perspective, is inconsistent with almost 100 years of Supreme Court precedent, and creates an unworkable standard for Section 1 analysis. For those interested in reading more, the abstract and full article can be found here.