Sign Stealing and Antitrust Laws

Yeah, this is worded very poorly and makes it seem like the act of in person scouting is a violation of anti trust laws. Have to assume they mean the prohibition of it. 

On a more basic level, I don't know how the NCAA can prevent anyone from attending a public event.  It's a free country and all that.  They may call it scouting.....I'd call it entertainment.

Here is the relevant part: (highlights mine)

. . . the rule was adopted in 1994 “as a cost-cutting measure designed to promote equity for programs that couldn’t afford to send scouts to other games.” In other words, if Michigan has cheated, it has cheated on a financial rule rather than one concerning the game itself.

To the extent that Bylaw 11.6.1 is intended to prevent schools from competing economically by determining how much to spend on their athletic programs, it runs squarely into Alston, O’Bannon, and Board of Regents {Note: these are antitrust precedents}. The NCAA or Big 10 might have a shot at justifying the rule as equalizing economic expenditures among member schools in order to promote competitive balance. The NCAA has made such arguments in the past, and in O’Bannon the Ninth Circuit accepted that promoting competitive balance may be a legitimate procompetitive justification in theory. The problem is that the courts have rejected the competitive balance justification in practice.

Your question may be revealing the core problem: it's not clear what alternative to the NCAA that NCAA members would agree to.

The antitrust angle won't be part of Michigan's case - that will focus almost entirely on whether the B1G has followed its own rules and norms in sanctioning Michigan.

The antitrust angle is interesting because it would potentially mean the rule would go away. However if the antitrust case were filed and won tomorrow, I don't think it would impact Michigan's case in any way since Michigan's punishment would be based on violations of whatever rules that were in place at the time. 

I can try to break it down - not an antitrust lawyer directly, though I do deal with it in my job as a corporate lawyer and have an interest in this area of law.

Antirust Law

Generally speaking, Antitrust laws concern actions that have an "unreasonable restraint of trade" - this includes the common things you think of such as price fixing, allocation of customers, bid rigging, etc. But most things aren't this obvious as "we won't compete" agreements and so there's a test that's used to determine if actions organization take restrict competition - this is called the "Rule of Reason" as is essentially a balancing test of the impact of the pro-competitive actions and the anti-competitive actions, the market power of the involved parties, impact of buyer of services, etc. This is where the legal arguments almost always focus and where the opinions spend their time analyzing the competitive effects of the agreement. There's a lot of stuff here, but the long and short of it is that the court is generally going to ask "is this beneficial or harmful to the market?"  There's burden-shifting and rebuttable presumptions in this test, but its easiest to think of it as a general analysis of pro-competitive versus anti-competitive results of the actions. There's other things (e.g., M&A) that aren't in scope here so not diving into that.

Alston and O'Bannon

The argument that comes from Alston and O'Bannon is essentially arguing that the NCAA is a group of competitors (schools) getting together (NCAA) to set up specific rules that limit what everyone can do (use their resources to give players educational benefits). Some of those actions are generally allowed by precedent due to the nature of competitive sports (e.g., rules that say how the game is played are needed). The antitrust laws allow cooperation for competitive athletics.

But the extent of that cooperation can be challenged - essentially saying that rules saying you need to score a TD as 6 points is necessary to have a competitive sports league, but a rule restricting whether or not you can give other benefits to student athletes is not necessary to have a competitive sports league.* That means they analyze the pro-competitive and anti-competitive effects of the educational benefit rules.

The Alston and O'Bannon rulings - although couched in rhetoric around exploiting student athletes - was litigated about antitrust law. Alston specifically focused on the restrictions on educational benefits available to student athletes - it did not cover payment to players, but the logic used for it could be supported to challenge bans on direct payments to student athletes as well (and the Court's opinion and especially Kavanaugh's concurrence hinted at this.

What it Means for UM

As far as the implication for UM lawsuit: The argument is that the in-person scouting rules is a purely financial rule - which is similar to say, giving better education benefits to student athletes. It's not a rule necessary to preserve the game (TDs are 6 points), it's a rule that restricts the financial expenditures of universities, which generally has a negative effect on universities are competing with each other (and therefore may fail that Rule of Reason test and be anti-competitive). This is why the article focuses on the history of the rule being to help the small schools from a spending money perspective (e.g., a group trying to regulate competition), rather than from a violating the rules of the game perspective.

*Just a side note: because professional leagues have collective bargaining agreements they are generally not going to be analyzed under antitrust law, because there's a labor exemption to antitrust law. This is why when things get really bad in bargaining between the professional sports unions and the leagues you hear threats of "decertification" - essentially the labor union disbands its certification, which then takes it out of the labor exemption for antitrust - and allows them to potentially sue under antitrust law. This is generally a more expensive option, though not "nuclear" (it happens and is successful).

And the main reason they don’t want to use the helmet technology is so they can continue to steal signs. 

And the NCAA already actively considered rescinding that archaic rule because it had concluded that breaking it conferred "minimal competitive advantage".

If I were at Williams & Connolly, I'd be hammering that point—how can the NCAA (or the Big Ten) make a big stink about breaking this rule when the NCAA is already prepared to ditch the rule in the first place?

I here you, SSA, it bugs me to.

In the midst of this insanity, we still find the Michigan difference.  

Yeah, good luck with that. "Alumni" used as singular is probably as common now as using "it's" for "its." 

Don’t fight the pedantry.  You’re doing the Lord’s work here.  Plus, you saved me from having to write the same thing. :)

That said, in this case,, neither “alumni” nor “alumnus” is correct; Mr. Crane went to U Chicago.  He is, however, on the faculty at the U of M Law School. :)

Except your shoe is untied and you are sitting in the neighbors car. :)

Will Sparty be in the big league?  

I feel like the kids are getting busted for underage drinking at a party and Sparty is like, "there was a party? I thought we were bowling."