Abstract
The House Settlement introduces a new regulatory architecture for college sports: Universities may now share revenue directly with athletes but only within a capped system accompanied by centralized oversight of third-party name, image, and likeness (NIL) transactions. The newly formed College Sports Commission (CSC), working with Deloitte, has operationalized these rules through NIL Go, a data-driven platform that evaluates whether athlete deals fall within a permissible “reasonable range of compensation.” This article situates NIL Go within a broader set of industries turning to algorithmic tools to structure markets, including rental housing and hospitality, where shared pricing systems have recently come under judicial antitrust scrutiny. By comparing the CSC’s model to these emerging forms of algorithmic coordination, the article identifies the key questions NIL Go raises for universities implementing the settlement and considers how developments in algorithmic-pricing litigation may shape future governance of athlete compensation.
Introduction
The Supreme Court’s decision in NCAA v. Alston and the class action and settlement that followed in House v. NCAA have ushered in a new era in intercollegiate sports. Alongside new roster limits, controls over third-party name, image, and likeness (NIL) deals with college athletes,3 and $2. billion in damages for lost earnings, the House Settlement requires the National Collegiate Athletic Association (NCAA) to change its rules and permit—for the first time since its formation in 1906—direct payments from universities to athletes, commonly called “revenue sharing.”
But this new right for athletes comes with a catch. The House Settlement also created a regime modeled after salary caps in professional sports leagues. It puts a uniform “pool limit” on university revenue sharing, which acts as a ceiling on the amount of revenue schools are allowed (but not required) to distribute to their athletes. The pool limit is ostensibly designed to create more parity between the NCAA’s member institutions, dampening the advantage of those blessed with larger budgets. However, third-party payments to athletes, like those received from an advertiser or NIL collective, do not count against it. Thus, the House Settlement excludes donations from boosters, alumni associations, or corporations from the “Average Shared Revenue” calculations that serve as the basis for the pool limit. The settlement also explicitly allows the NCAA and defendant conferences to “adopt rules that prohibit any transaction, payment, or agreement designed to defeat or circumvent” the pool limit,8 seemingly to prevent pay-for-play schemes similar to the one that the Los Angeles Clippers are alleged by the National Basketball Association (NBA) to have created to compensate star Kawhi Leonard beyond the NBA’s salary cap.
This article explores how the Collegiate Sports Commission’s (CSC’s) reported use of centralized, algorithm-driven oversight creates antitrust exposure—not only for those entities themselves, but also for the NCAA and its member institutions. The agreements between the conferences and universities to abide by the CSC’s rules and excommunicate athletes who violate them are an explicit price-fixing cartel and group boycott under section 1 of the Sherman Act, and their use of an algorithm to police the cartel places it squarely in the zone of several hub-and- spoke conspiracies being challenged in court today. By comparing the NCAA’s new scheme to these cases, it becomes clear that the CSC and NIL Go may find difficulty surviving if faced with antitrust scrutiny. Despite those cases existing in different industries and somewhat different contexts, the same theories are in play—especially those related to data sharing and algorithmic coordination.
Part I of this article will provide an overview of the NIL Go system, explaining what the House Settlement allows and how the CSC has operationalized the settlement’s provisions into a new world order for college sports. Part II surveys the growing legal scrutiny of algorithmic price fixing, focusing on the various actions that have been taken, are currently ongoing, and may yet still be filed against algorithmic price-fixing software firms and their clients and that represent the first major doctrinal tests of this antitrust theory. Part III then applies the logic of that litigation to the evolving NIL landscape, exploring who might bring antitrust claims against the CSC, what theories they might rely on, and how the use of shared pricing algorithms complicates the analysis. The article then concludes by identifying potential exposure points for member institutions and suggesting how they might navigate a compliance environment increasingly shaped by algorithmic price coordination.
I. HOW THE NCAA (TRIES TO) STOP CAP CIRCUMVENTION
A. The New Enforcement Regime
In the first half of 2025, the Power Four conferences used these provisions to create the CSC, tasked with “ensur[ing] that name, image and likeness (NIL) deals made between student-athletes and third parties are fair and comply with the [new] rules.” The CSC, in turn, hired accounting firm Deloitte, which created a clearinghouse called “NIL Go.” As the CSC’s primary oversight tool, the NIL Go system is more than just a clearinghouse—it is the enforcement arm of a newly brokered financial order in college sports. Its mandate is to ensure that athlete compensation from third parties does not become a backdoor route around the cap on institutional payments. To that end, NIL Go and Deloitte are collectively charged with screening and flagging NIL deals that appear inconsistent with the settlement’s narrowly defined standards of legitimate compensation. All Division I college athletes are required to submit NIL deals worth $600 or more to the CSC and Deloitte “to determine whether [these] deals are made with the purpose of using a student-athlete’s NIL for a valid business purpose and do not exceed a reasonable range of compensation.”
But the NCAA and CSC are not concerned with advertisers like Gatorade and Nike. They are concerned with “Associated Entities and Individuals.” That terms is defined in the House Settlement to capture alumni associations, booster clubs, and NIL collectives. And the settlement specifically allows the NCAA to prohibit deals with those groups that are not “for a valid business purpose related to the promotion or endorsement of goods or services provided to the general public for profit, with compensation at rates and terms commensurate with compensation paid to similarly situated individuals with comparable NIL value who are not current or prospective student-athletes at the Member Institution.” 17 The CSC, deputized by the NCAA to effectuate the settlement, screens all NIL deals to determine first if they are with an “Associated Entity” and second if they are for “a valid business purpose” and within a “reasonable range of compensation.” Athletes who go forward with deals that have not been cleared can lose eligibility, and under certain circumstances, their schools can be punished as well.
The CSC defines “valid business purpose” as “the use of the student-athlete’s NIL … to sell a good or service to the public for profit.” A “reasonable range of compensation” is one “commensurate with compensation paid to similarly situated individual[s].” The range is determined “based on multiple factors, including but not limited to, the deal’s performance obligations, the student-athlete’s athletic performance and social media reach, the local market and the market reach of his or her institution and program.” Athletes are compared to “similarly situated individuals with comparable NIL value who are not current or prospective student- athletes at the institution the student-athlete is currently enrolled in or being recruited to attend.” If a deal fails to satisfy these criteria, athletes can attempt to negotiate a new deal, abandon the deal entirely, or appeal the decision through an arbitration process. Athletes and schools who fail to adhere to this process risk losing eligibility for NCAA athletics.
Deloitte has developed an algorithm to manage these reviews, which involve over eight thousand deals valued at $79. million. While the specific algorithm used is proprietary, Deloitte’s determinations rely heavily not only on the specifics of the athlete and third-party deal, but also on comparisons to “similar types of NIL deals” previously submitted to the clearinghouse. The algorithm has since become the CSC’s primary enforcement mechanism against athlete compensation that might circumvent the House Settlement’s pool limits. It determines what NIL deals the CSC will accept as compliant, effectively substituting data-driven thresholds for the more categorical boycott it initially preferred.
NIL Go presents serious antitrust issues for both the CSC itself and for its institutional stakeholders. Its “anti-circumvention” measures simply replace the NCAA’s old compensation cap—a strict prohibition on NIL deals—with a new, higher tech one.
The CSC’s focus on “Associated Entities” matters because NIL collectives and boosters are the primary source of income for college athletes under the House Settlement regime. Yes, the stars of college athletics command huge contracts with the most recognizable brands, but the rank and file of college athletics report far less. According to data from the NCAA, the average value of disclosed NIL deals for the 2024–25 academic year was just under $3000 and the median deal was just under $700. Around eighty percent of those deals are with NIL collectives. Targeting those income sources is targeting college athletes’ main source of financial support.
B. Implementation and Compliance
Deloitte’s role in the CSC, which primarily involves administering the NIL Go algorithm, has been met with skepticism and scrutiny—in large part due to its role in determining whether a third-party deal is properly within that “reasonable range of compensation.” Deloitte has made clear that calculating this value will be achieved through data aggregation, logic models, and algorithmic flagging tools that create acceptable “compensation ranges” for these third-party deals. While the specifics of the algorithm remain a black box, it is expected to include factors like athletic performance, social media reach and following, and the relative market size and “reach” of the athlete’s school. For example, while both Georgia State and the University of Georgia are located in the rich Atlanta market, an athlete at Georgia Tech will be considered to have more reach in that area than an athlete at Georgia State due to the greater popularity of the University of Georgia in the area. Preliminary tests of the algorithm against presettlement deals revealed that a startling seventy percent of past deals from NIL booster collectives would have been denied while ninety percent of deals from public companies are approved.
Others have critiqued the potential privacy concerns with a required clearinghouse. NIL agent, attorney, and outspoken NCAA critic Darren Heitner pointed out in a blog post that Q&As provided by the NCAA are “silent on controls to prevent downloading or misusing sensitive deal terms outside the scope of compliance review”—a lack of clarity that is a “red flag.” He questions whether access to the clearinghouse database will be limited to Deloitte and the CSC “or could schools, conferences, or even individuals who may have the intention to become these agents’ rivals peek at these contracts.” Even advertisers or NIL collectives who obtained the data could use a separate algorithm to artificially suppress the market rate for college athletes’ NIL. He also predicted that the lack of clear confidentiality in the database could lead to issues where an athlete’s contract prohibits disclosure and that some brands could be deterred from engaging with college athletes altogether “if they fear their proprietary terms will be exposed.”
Many also wonder what state legislatures will continue to do to try to give their in-state schools a competitive advantage. Tennessee, for example, passed a law in May 2025 barring athletic associations like the NCAA and CSC from interfering with a Tennessee athlete’s ability to earn compensation or punishing a Tennessee institution “and its affiliated foundation” for activities like paying players. New Jersey passed a similar bill in July 2025,40 and a similar bill has been proposed in Oregon. Various bills have been proposed at the federal level to curb the inconsistencies of these individual state actions, but only the most recent effort— the Student Compensation and Opportunity through Rights and Endorsements Act (SCORE) Act—has been able to find much traction in Congress (and even this bill seems unlikely to receive bicameral support).
Finally, even more have expressed deep skepticism as to whether the CSC and NIL Go will actually be able to bridle an NIL collective market that reached $1. billion in 2024–25. A June 2025 article in The Athletic (the sports department of the New York Times) quoted several unnamed athletic directors and player personnel directors questioning whether the CSC will actually be able to flex power the NCAA had not been able to show for the past several years, especially if (and when) athletes simply do not report their deals (or report their deals inaccurately) to the clearinghouse.
To counter these concerns, the CSC released a memo shortly after it took power making clear its position that NIL collectives—as entities that “ha[ve] a business purpose to pay student-athletes associated with a particular school or schools”— cannot reach deals that meet the “valid business purpose” standard unless the deal facilitates performance at a more “valid” business entity. This guidance, effectively a boycott of the enterprises, was immediately met with harsh critique, with commentators suggesting that the CSC may be risking antitrust litigation in categorically excluding NIL collectives in this fashion. The director of Utah State’s NIL collective, the Blue A Collective, noted on social media that a deal he signed with an athlete for $2,333. was denied in accordance with this guidance, sparking further critique and discussion. House v. NCAA class counsel quickly threw gasoline on this fire with a letter to the CSC threatening to bring the matter in front of Judge Wilken’s appointed special master, Magistrate Judge Nathanael Cousins, if the guidance was not retracted, eventually settling when the CSC agreed to drop their categorical exclusion of collective deals eleven days later.
At the same time, it is understandable to some degree why the NCAA and the CSC would firmly insist on including anticircumvention measures alongside the revenue-sharing cap. Almost all of the professional sports leagues that have a salary cap have an accompanying anticircumvention provision in the league collective bargaining agreement that makes clear that third-party deals cannot be used to circumvent those caps. And while the use of endorsement deals to circumvent salary caps is extraordinarily rare in professional sports, it is not unprecedented. In 2024, the WNBA (Women’s NBA) opened an investigation when the Las Vegas Convention and Visitors Authority announced that they would give each player on the Las Vegas Aces $100,000 to make “appearances on Las Vegas’ behalf” and to “wear Las Vegas-centric gear,” after previously finding in 2023 that the Aces circumvented the cap through under-the-table payments and impermissible benefits. As of the writing, the NBA is investigating the Los Angeles Clippers for allegedly circumventing their salary cap through a “no-show job” NIL deal that purportedly used money funneled through a now-bankrupt company in which Clippers owner Steve Ballmer had invested.
In the same vein, the Power Four conferences are treating the NIL Go system very seriously and are empowering it with the critical resources, personnel, and tools they say are needed to rein in what they see as an out-of-control NIL labor market. The conferences named former Major League Baseball executive Bryan Seeley as chief executive officer, drawing on Seeley’s decade of experience leading MLB’s Department of Investigations where he oversaw cases pertaining to domestic violence, performance-enhancing drugs, and age fraud. Seeley added former Washington Nationals chief of staff and senior vice president John Bramlette as the CSC’s head of operations and deputy general counsel, expanding the Commission’s legal bona fides and manpower. The Power Four have also written into the governing agreements some degree of subpoena power—a much lesser degree of subpoena power than in a courtroom, but one that officials believe would still force access to necessary records in arbitration. And they have worked to compel universities to sign contracts waiving their right to pursue legal challenges against the CSC, even if their state law is contradictory, threatening schools with expulsion from Power Four conferences if they do not sign or breach the agreement. This has already received pushback from the Attorney General for the state of Texas, citing a host of other legal barriers to enforcement of a proposed contract between the CSC and Division I schools.
Seeley and the CSC have been given the authority and flexibility to issue penalties they see fit from “a wide range of options,” not just against the athletes’ eligibility but against universities, coaches, and administrators as well. Those could reportedly include fines of multiple millions of dollars, suspensions, postseason bans, and even a reduction of transfers a school can acquire from the transfer portal. Yet perhaps the most pressing legal concerns lie not in the penalties themselves, but in the coordinated, data-driven compensation system they are designed to enforce—a system with striking and potentially dangerous parallels in other industries.
II. ALGORITHMIC PRICE FIXING
Just like the CSC, firms across sectors are increasingly deploying software tools that allow independent entities to share pricing logic, exchange competitively sensitive data, and outsource decision-making to algorithmic “clearinghouses.” This trend has already drawn antitrust scrutiny, most recently in litigation against RealPage—a property management software firm accused of facilitating horizontal price fixing among its landlord clients through centralized rent-setting algorithms. As the NIL market enters its next phase, the structural and functional similarities between the CSC’s enforcement system and prior actions against algorithmic coordination models demand closer examination.
An algorithm is simply a set of steps used to complete a specific task or solve a mathematical problem. A pricing algorithm can use information such as supply, demand, costs, and competitor pricing to maximize a seller’s profits. Today, sophisticated pricing algorithms use machine learning and vast amounts of data to perform this function in real time and on a customer-by-customer basis. Often, the data consists of competitively sensitive, highly granular, nonpublic information that is voluntarily submitted by competitors, usually with the understanding that everyone in the industry is actively participating. And while these algorithms could be used to increase sales by undercutting competitors or to poach valuable employees with higher wages, they almost universally respond to competitors’ higher prices and lower wages by following suit. For example, as Berkeley Research Group’s Hassan Faghani recently noted in a white paper, Algorithms using reinforcement learning can adopt supracompetitive pricing strategies through trial and error, even in the absence of preprogrammed coordinated pricing strategies. This occurs faster and more effectively in algorithmic pricing than in traditional oligopolies, where firms must rely on market signals or assumptions about competitors.
Algorithms can “quickly observe, synthesize, and respond to vast amounts of sales, purchases, and transaction data,” making it much easier to know if a conspirator is “cheating on its cartel partners” by pricing outside of agreed terms. They “tamper[] with price structures,” fostering illegal price-fixing and wage- fixing cartels and helping monopolies illegally maintain their market power over their industries.
In light of the many threats that algorithms pose to free and open markets, their use is increasingly drawing scrutiny from legislatures and law enforcement at the federal and state levels. In a February 2023 speech to GCR Live, then- Principal Deputy Assistant Attorney General Doha Mekki called out industries that facilitate “high-speed, complex algorithms can ingest massive quantities of ‘stale,’ ‘aggregated’ data from buyers and sellers to glean insights about the strategies of a competitor.” She noted that the Justice Department’s concern “is only heightened” when competitors adopt the same pricing algorithms, as studies have shown that these algorithms “can lead to tacit or express collusion in the marketplace, potentially resulting in higher prices, or at a minimum, a softening of competition.” In August 2024, the Justice Department, along with several state attorneys general, filed a lawsuit against rental housing software management company RealPage accusing the firm and its clients of distorting markets, harming customers, and creating a monopoly in the market for commercial revenue management software. As a result, firms like RealPage in the rental housing industry and a number of other industries are facing class actions, discussed below, challenging these schemes and the skyrocketing housing costs they allegedly helped create.
Algorithmic price fixing has also drawn the eye of Congress. In February 2024, Senator Klobuchar and eight Democrat cosponsors introduced the “Preventing Algorithmic Collusion Act,” which would ban the use of a pricing algorithm “that uses, incorporates, or was trained with nonpublic competitor data” a presumptive violation of section 1 of the Sherman Antitrust Act. While the bill stalled in committee, it was reintroduced in January 2025, demonstrating the continued focus on the issue. Several state legislatures and local city councils are all also taking on pricing algorithms, whether through bans on their use in rental housing, surveillance pricing proscriptions, or more general prohibitions. The state of California recently banned the coercive use of algorithms across markets,74 and the state of New York banned the use of algorithms to “set or adjust rental prices, lease renewal terms, occupancy levels, or other lease terms and conditions … [for] residential rental properties.”
Neither the NCAA nor the CSC have been deterred by these new developments or the multitude of lawsuits challenging older and existing rules. So as the NIL market for college athletes enters its next phase, the structural and functional similarities between the CSC’s enforcement system and these lawsuits demand closer examination.
A. Understanding Algorithmic Pricing as Collusion
The Sherman Act is the cornerstone of U.S. antitrust law. The Supreme Court has called it “the Magna Carta of free enterprise” and “a comprehensive charter of economic liberty aimed at preserving free and unfettered competition as the rule of trade.”
Section 1 of the Sherman Act prohibits “[e]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade.” It applies to “any concerted action ‘in restraint of trade or commerce,’ even if the action does not threaten monopolization.” This includes “all forms of combination, old and new.” Concerted action, or “agreements,” are either horizontal or vertical. Horizontal agreements are “between competitors at the same level of the market structure,” like manufacturers of the same product or employers of the same labor. In the CSC context, for example, universities and their respective conferences—who compete in the markets for athletic talent; advertising, broadcasting, and merchandising revenue; student enrollment; and prize money (to name a few)—have entered into horizontal agreements to abide by the rules and regulations promulgated by the NCAA and CSC, including NIL Go’s criteria for NIL deals.
Vertical agreements involve “combinations of persons at different levels of the market structure, e.g., manufacturers and distributors.” In RealPage, the plaintiffs allege individual vertical agreements by the housing owners to use RealPage’s pricing algorithms for “pricing and price-monitoring” of their rental properties. The NCAA and CSC similarly have vertical agreements with the athletic conferences and universities related to how NIL deals are governed and evaluated, including conference and university agreement to submit to and abide by that governance.
The combination of these horizontal and vertical agreements is known in antitrust parlance as a “hub-and-spoke” conspiracy. Courts have found “all participants in ‘hub-and-spoke’ conspiracies liable when the objective of the conspiracy was a per se unreasonable restraint of trade.” In college athletics, there are currently three “hubs”—the NCAA, the CSC, and the conferences. There are also two separate sets of “spokes,” reaching out to the conferences and then the universities. The horizontal agreements between the universities and between the conferences are known as the “rims” that form the wheels and create significant exposure to liability under the Sherman Act.
B. Presumptive Illegality vs. Fact-Specific Assessments
To understand why the rim of the hub-and-spoke conspiracy is so important, we have to look at how courts differentiate between horizontal and vertical agreements under the Sherman Act. Despite section 1’s broad language, the Supreme Court has limited its application to concerted action that is “unreasonable.” Horizontal agreements are usually considered “per se,” or presumptively, unreasonable due to their “pernicious effect[s] on competition and lack of any redeeming virtue.” They are “so plainly anticompetitive that no elaborate study of the industry is needed to establish their illegality.” This standard is typically applied to price-fixing, bid rigging, and market allocation agreements between horizontal competitors.
Vertical agreements, on the other hand, are reviewed under the Rule of Reason. This involves “‘a fact-specific assessment of market power and market structure’ aimed at assessing the challenged restraints’ ‘actual effect on competition ….’” The Rule of Reason asks “whether the restraint imposed … merely regulates and perhaps thereby promotes competition or whether it … may suppress or even destroy competition.” In a hub-and-spoke agreement, this distinction matters because, absent some agreement among the “spokes” (the horizontal competitors), the conduct only receives “rule of reason” analysis, a process that defendants win about 90 percent of the time.
For most hub-and-spoke cases, proving the existence of the horizontal agreements can be extraordinarily difficult when algorithms are involved. Even with direct evidence of information exchanges between competitors, information exchanges are not, standing alone, per se violations of the Sherman Act. They certainly create significant opportunities for price fixing, but courts have required evidence that “the exchange indicates the existence of an express or tacit agreement to fix or stabilize prices” or that “the exchange is made pursuant to an express or tacit agreement that is itself a violation of §1 under a rule of reason analysis.”
Of course, cartels do not typically commit their agreement to fix prices and allocate markets to pen and paper. Instead, it is usually established through circumstantial evidence, which “must include both parallel conduct [for example, simultaneous price increases] and at least one ‘plus factor,’” like motive, opportunity to collude, or conduct that would ordinarily be contrary to the party’s economic self-interest. Otherwise, courts view parallel price increases (or wage decreases) as a lawful “common reaction of ‘firms in a concentrated market [that] recogniz[e] their shared economic interests and their interdependence with respect to price and output decisions.’”
Pricing algorithms, usually evaluated as hub-and-spoke conspiracies,101 are even more challenging. Plaintiff are tasked with proving that market competitors’ parallel adoption of pricing algorithms amounts to unlawful concerted action,102 but “companies need not meet or even communicate directly to demonstrate to each other that they are complying with the agreement.” Thus, the question for courts— whether the conduct “joins together separate decisionmakers” and “deprives the marketplace of independent centers of decisionmaking”—becomes harder.
C. Pricing Algorithms in the Courts
Plaintiffs bringing antitrust lawsuits against algorithm operators and users allege that there is a “tacit agreement” to collude between the spokes—via acceptance of an invitation from the algorithm operator to participate in the scheme—with the understanding that their competitors (and codefendants) are doing the same. This type of conduct, though achieved with cutting edge is technology, is hardly novel. As former FTC Commissioner Maureen Olhausen described it, “a group of competitors sub-contracting their pricing decisions to a common, outside agent … is fairly familiar territory for antitrust lawyers.” “[A]ntitrust laws do not allow … using an intermediary to facilitate the exchange of confidential business information.” She quipped, “Everywhere the word ‘algorithm’ appears, please just insert the words ‘a guy named Bob.’”
1. Understanding RealPage
The ongoing litigation against RealPage presents an illustrative example. As noted, the firm and some of its largest rental housing clients are facing litigation on multiple fronts, including a joint action filed by the U.S. Department of Justice and the attorneys general of ten states in addition to actions filed separately by other states’ attorneys general and private plaintiffs. Many of these lawsuits are still ongoing, and the Tennessee district court hearing the class action claims denied a motion to dismiss the multifamily tenant class members’ claims back in 2023. As a result, multiple codefendant landlords have already settled some of the claims arising from their participation with RealPage. In RealPage, rental housing owners and operators—who compete in the market for multifamily rental housing— allegedly entered into horizontal agreements to use the same “revenue management software” to fix the cost of housing throughout the United States. The lawsuits argue that RealPage and its clients, which are owners or managers of large multifamily residential properties (such as apartment complexes) that compete against each other, are violating antitrust laws by using RealPage’s collection and analysis of the nonpublic and competitively sensitive data of competing properties, via a pricing algorithm, to maintain high rent prices when the supply and demand pressure in a particular market would otherwise lead to decreases in the rental prices offered to potential tenants.
The lawsuits also allege that RealPage’s algorithm is not the only part of its operation that artificially inflates housing costs. To foster compliance, RealPage requires the internal revenue managers of its clients to be trained by RealPage to adhere to the reporting and price recommendation acceptance policies. RealPage employs pricing advisors who meet with internal revenue managers daily and review client requests to override RealPage price recommendations (with the power to engage the landlord’s regional manager if the RealPage price advisor disagrees with the decision of the internal revenue manager). Additionally, RealPage coordinates meetings and conversations amongst competitors for the purpose of coordinating their activity and ensuring their mutual comfort with the collective mission to enjoy the benefits of the “rising tide” of RealPage’s rental price recommendations. To the extent these efforts relate to the pricing for rental listings or similar matters that affect the offerings available to tenants, the lawsuits argue that these acts by RealPage are anticompetitive and unlawful. And, at least in the initial stages, the district court has approved the RealPage plaintiffs’ legal theories. It largely denied RealPage’s motions to dismiss, and the private class action is in discovery, with the cooperation of a number of defendants who reached early settlements.
The Justice Department’s settlement of its RealPage lawsuit includes injunctive relief barring a host of activities that reflect the anticompetitive concerns of the business. These include banning the use of “nonpublic, competitively sensitive information” for the operation of RealTime’s algorithm; ceasing the use of “active” data for training the algorithm; and removing design features that “align[] pricing between competing users of the software.” One can easily see parallels with the CSC’s collection of college athletes’ nonpublic NIL deals, the input of the information into NIL Go, and setting of what it deems reasonable rates for NIL deals.
2. Lessons from Other Algorithm Challenges
The Department of Justice and Federal Trade Commission have since gotten involved in two other algorithmic price-fixing class actions—one (Duffy v. Yardi Systems) involving a competitor to RealPage, and another (Gibson v. Cendyn Group) involving a company employing a similar system for the hotel industry. In statements of interest filed in each case, they argued that “an invitation for collective action followed by conduct showing acceptance” has always equated to concerted action within the meaning of section 1. Quoting Supreme Court language from back in 1939, the agency noted that It [is] enough that, knowing that concerted action was contemplated and invited, the distributors gave their adherence to the scheme and participated in it. Each distributor was advised that the others were asked to participate; each knew that cooperation was essential to successful operation of the plan. They knew that the plan, if carried out, would result in a restraint of commerce, … and knowing it, all participated in the plan.
To participate independently, without one’s competitors, would be illogical because the algorithm would raise your prices above the market rate. So— particularly when coupled with “plus factors” like parallel price increases, the exchange of confidential and commercially sensitive information, adherence to the algorithm’s pricing recommendation, changes in policies to prioritize maximizing revenue over occupancy, acting against their own self-interest, and policing by the operator or competitors to ensure compliance—courts have found these allegations of concerted action sufficient to state a claim under section 1. And at least one has applied the per se standard of liability.
Long-standing Supreme Court precedent also makes clear that the temporal requirements to form an agreement under the Sherman Act are flexible. “[A]n unlawful conspiracy may be and often is formed without simultaneous action or agreement on the part of the conspirators.” Second, “[t]he test is not what the actual effect is on prices, but whether such agreements interfere with ‘the freedom of traders and thereby restrain their ability to sell in accordance with their own judgment.’” Thus, compliance does not have to be perfect, and the absence of ultimate success, or some “cheating” on price, will not “absolve [a cartel] from their violation of the law.” Third, algorithms can still artificially inflate prices above competitive levels, or in the case of NIL, suppress compensation below competitive levels. As former Assistant Attorney General William Baer explained at a congressional hearing on this topic, rapidly advancing technology allows algorithms to “gather[] publicly available pricing information about its competitors; and ‘learn’ in nanoseconds that price competition does not get you there, stop[] discounting, and stabilize[] prices—even in markets where the number of firms previously would have made oligopolistic pricing—tacit collusion—unsustainable.”
To be sure, these things are not easy to allege or prove. The hoops that plaintiffs must jump through to prove a hub-and-spoke conspiracy are complex and challenging, even before introducing the complexity of a price algorithm. In the two lawsuits attacking the algorithm used by casinos in Las Vegas and Atlantic City, the district courts dismissed the claims, finding allegations of concerted action—particularly with respect to the time between each hotel’s adoption of the algorithm, the use of nonmandatory price “recommendations,” and the more limited use of confidential information—insufficient. The plaintiffs in Gibson v. Cendyn lost their appeal to the Ninth Circuit, in large part because they abandoned their horizontal conspiracy claims,129 but questions abound, there and in Cornish- Adebiyi, about whether the casinos actually agreed with each other to set prices using the algorithm and whether that agreement was binding.
No such questions exist regarding NIL Go. That is what makes the NCAA generally, and the CSC’s use of the NIL Go algorithm specifically, so remarkable. Their agreements are explicit, and they carry all of the plus factors seen in RealPage and Duffy with none of the problems identified by courts in the Cendyn Group litigation.
III. NIL GO AS ALGORITHMIC-BASED COLLUSION
A. The CSC’s “Hub-and-Spoke-and-Spoke-and-Spoke” Model
With the passage of the House Settlement, the NCAA, the CSC, Deloitte, and the conferences and universities have explicitly agreed to three collusive price-fixing mechanisms: first, to limit the amount of revenue they can share with their athletes; second, to restrict the allowable NIL deals to vague “valid business purpose” and “reasonable range of compensation” standards; and, third, to condition athletes’ eligibility to participate in NCAA-sanctioned athletic events—and enjoy the economic benefits that follow—on compliance with these rules.
The NIL Go algorithm determines acceptable rates of compensation for college athletes, via the exchange of ordinarily confidential data the athletes are required to submit for analysis. NIL Go’s rulings are strictly enforced through the threat of a group boycott. Conferences and schools agree to ban college athletes from play if they fail to rescind an NIL deal that exceeds them—and conferences are in turn threatening schools who do not go along with the scheme with expulsion. The agreements are published on the internet and openly agreed and adhered to. They are direct evidence of a horizontal agreement to artificially suppress athletes’ NIL earnings below competitive levels and boycott schools and athletes that don’t adhere to the scheme.
The end result is a well-defined multilayered hub-and-spoke (or, in this case, “hub- and-spoke-and-spoke-and-spoke”) conspiracy with antitrust-relevant information and directives flowing in two different directions, as demonstrated by Figure 1: FIGURE 1: NIL GO AND THE CSC AS A “HUB-AND-SPOKE-AND-SPOKE- AND-SPOKE” MODEL OF PRICE COORDINATION. involved a guild of clothing designers, manufacturers, suppliers, and retailers to boycott retailers who colluded to push back against manufacturers who systematically flooded the market with lower priced copycat designs. Id. at 461. Much like the vilification of the NIL collectives and boosters within college athletics, the guild called the rival manufacturers’ practices “unethical and immoral, and [gave] it the name of ‘style piracy.’” Id. at 462–63. It also had a number of other anticompetitive rules, like a prohibition on retail advertising (similar to prior NCAA rules banning NIL agreements) and regulation of the amount and availability of discounts that retailers could offer (similar to current NCAA rules governing NIL). Finally, the guild employed secret shoppers, auditors, and an elaborate tribunal (like the CSC and Deloitte) to ensure compliance. Id.
The Court found this conduct contrary to the Sherman Act in a multitude of ways, including by narrowing who guild members could do business with, boycotting violators, and requiring disclosure of sensitive commercial information. Id. at 464. It also rejected the guild’s claim that their attempts to stop “piracy” justified the boycott: “The purpose and object of this combination, its potential power, its tendency to monopoly, the coercion it could and did practice upon a rival method of competition, all brought it within the policy of the prohibition declared by the Sherman and Clayton Acts.” Id. at 467–68.
The anticircumvention provisions in the House Settlement operate similarly as a horizontal maximum price-fixing mechanism and group boycott. While the relationships between the NCAA, the CSC, conferences, schools, athletes, and third parties may contain vertical elements, the functional outcome is horizontal: conferences and schools, through the CSC, coordinate around shared limits on athlete compensation by collectively rejecting NIL deals that exceed an algorithmically defined “reasonable range of compensation.” Though framed as cap enforcement, the system effectively restrains third parties from paying market rates and suppresses athlete compensation across the board, with athlete reporting requirements serving as the enforcement trigger. This is a clear restraint of trade. In fact, in any other market, this would be per se illegal under section 1 of the Sherman Act. It indisputably gives rise to a colorable claim under the Sherman Act by either the athletes or the NIL collectives and boosters excluded and restrained by the rules. It may also be a violation of California’s new ban on the coercive use pricing algorithms, given that the CSC conditions both athlete and university eligibility for NCAA athletics on participation and compliance.
At first blush, antitrust litigation by a booster or collective against the CSC, the schools and their conferences, or the NCAA based on the House Settlement’s anticircumvention measures could be seen as a rather strange and perhaps unlikely application of antitrust law. In the third-party NIL market, athletes act as sellers of their NIL rights while the third parties act as buyers. From the booster’s perspective, it follows that the anticircumvention measures create a price ceiling for those offered NIL rights.
True, affected associated entities and individuals are inarguably saving money by being artificially prevented from paying more than the “reasonable range of compensation” of a prospective NIL deal. Yet of course, and as discussed, these boosters do not see this development as a positive, considering that their goal is to actually pay more, as a form of institutional or competitive support. The result is paradoxical: Boosters may be receiving some financial benefit from NIL Go, but it is one they did not ask for and do not want. The anticircumvention provisions in the House Settlement operate as a horizontal maximum price-fixing mechanism and potential group boycott,135 and they are suffering some form of harm.
And it is well established that antitrust law is not exclusively concerned with cartels that set price floors. Price maximizing cartels can also violate the Sherman Act—a fact that the Supreme Court has made this clear in Arizona v. Maricopa County Medical Society, rebutting the dissent’s argument that maximum price- fixing schemes can have significant procompetitive and pro-consumer benefits. The majority wrote that this argument “indicates a misunderstanding of the per se concept” as even if there were benefits to the scheme there are other, legal ways to accomplish the same goals. Regardless, the Court also reasoned that making the per se rule clear serves to also “enhance the legislative prerogative to amend the law.” The arguments made by the doctors “are better directed to the Legislature” as “Congress may consider the exception that we are not free to read into the statute.” Barring that, the Supreme Court made clear that all horizontal price- fixing initiatives—including horizontal maximum price-fixing initiatives—must be found as per se violations of antitrust law.
Thus, plaintiffs may have antitrust injury, and properly state a claim under the Sherman Act, when they are harmed by those schemes. As the Ninth Circuit noted, “[w]hen horizontal price fixing causes buyers to pay more, or sellers to receive less, than the prices that would prevail in a market free of the unlawful trade restraint, antitrust injury occurs.” Moreover, antitrust law is not exclusively concerned with effects on price. Anticompetitive effects can include decreased output, lower quality goods or services, loss of choice, stifled innovation, and barriers to entry. Here, the NIL Go algorithm is a significant barrier to entry for NIL collectives and is arguably protecting lower quality NIL collectives that offer poorer terms to college athletes for their NIL rights and services from more innovative and better financed competitors.
B. Setting the Standard of Review: Per Se Illegal or Rule of Reason?
As a horizontal maximum price-fixing arrangement, the anticircumvention provisions in the House Settlement revenue-sharing cap fall squarely within the scope of the Supreme Court’s reasoning in Maricopa County Medical Society: that horizontal maximum price fixing is per se unlawful, regardless of any claimed procompetitive justifications. At the same time, however, counterbalancing Supreme Court precedent casts doubt on whether plaintiffs challenging the NIL Go system will find success arguing based on the per se test. Defenders of these measures have an ace up their hole—doctrine from NCAA v. Board of Regents pushing courts away from declaring the rules of sports leagues per se illegal, especially when those rules are focused around creating competitive balance on the playing field. Taking the Court’s reasoning from Regents, college sports “involves an industry in which horizontal restraints on competition are essential if the product is to be available at all,” making the per se test inapplicable for some restraints in competitive sports.
The Alston decision grappled with this exception to per se liability, and other dicta in that decision praising amateurism, head on. The NCAA argued that Board of Regents fully blessed its amateurism rules and that its rules should be given “at most an ‘abbreviated deferential review.’” The Supreme Court rejected this gambit, writing that while they “do not doubt that some degree of coordination between competitors within sports leagues can be procompetitive,” just because “some restraints are necessary to create or maintain a league sport does not mean all ‘aspects of elaborate interleague cooperation are.’” It refused to give the challenged restrictions a “quick look” and instead made clear that “[t]he NCAA’s rules fixing wages for student-athletes f[ell] on the far side of the line,” requiring a “fuller review.” NCAA (or in this case CSC) rules fixing third-party compensation for athletes would undoubtedly be treated under the same principle—especially when those rules are set up to better effectuate “rules fixing wages” for said athletes. Thus, Alston tells us that, if the per se test is inappropriate to analyze antitrust issues with NIL Go, either a quick look test used “as a path to condemnation, not salvation” or (more likely) the full Rule of Reason test must be the focus.
C. NIL Go Under the Rule of Reason—Can the Rules Pass the Test?
Even if a court finds that the per se standard does not apply, the CSC’s NIL Go restrictions will face significant hurdles under the Rule of Reason: that they limit NIL deals to a “fair going market price is immaterial.” As the Supreme Court has noted, [I]n terms of market operations[,] stabilization is but one form of manipulation. And market manipulation in its various manifestations is implicitly an artificial stimulus applied to (or at times a brake on) market prices, a force which distorts those prices, a factor which prevents the determination of those prices by free competition alone.
The compensation limits “provide the same economic rewards to all practitioners regardless of their skill, their experience, their training, or their willingness to employ innovative and difficult procedures in individual cases.” They also intentionally “discourage entry into the market and may deter experimentation and new developments by individual entrepreneurs.” NIL collectives, the newest entrants into the market for college athletes’ NIL and an important source of revenue for athletes, are being forcibly removed from the market. These are blatantly anticompetitive effects that go to the heart of the Sherman Act.
The burden will thus fall on the NCAA to offer a procompetitive justification. Amateurism is unlikely to suffice. It was wholly rejected in Alston. In another recent case challenging the NCAA’s amateurism rules under the Fair Labor Standards Act, the Third Circuit rejected the argument that amateurism precluded a finding that college athletes could be employees, saying it would “not use a ‘frayed tradition’ of amateurism with such dubious history to define the economic reality of athletes’ relationships to their schools.” The Tenth Circuit almost twenty years ago similarly refused to extend the concept of amateurism to assistant coaches in a lawsuit that successful challenged rules limiting their salary. Finally, in the same Board of Regents decision that called amateurism a “revered tradition,” the Supreme Court found that “rules that restrict output are hardly consistent with this role” and invalidated the NCAA’s broadcasting restrictions under the Sherman Act.
And, of course, the Supreme Court made clear in Alston that Board of Regents was not a declaration that “the NCAA’s compensation restrictions [were] procompetitive both in 1984 and forevermore.” The NCAA offered no “consistent definition” of amateurism for the Alston court, and its defense that amateurism was a procompetitive justification for the challenged restraints was rejected. Thus, the limits on compensation challenged in that case, which the Supreme Court called “admitted horizontal price fixing in a market where the defendants exercise monopoly control,” failed the Rule of Reason.
The NCAA would alternatively point to the need to preserve competitive balance as a key rationalization for the rules. This would not be a slam dunk of a procompetitive justification—an excellent 2006 law review piece by Professors Salil K. Mehra and T. Joel Zuercher found that the competitive balance argument in Rule of Reason analysis has yielded a circuit split and overall criticized the use of the concept as a defense to antitrust scrutiny.
And in this specific context there are certainly arguments to be made that the competitive balance rationales supporting the revenue-sharing cap—along with the NIL Go anticircumvention measures used to sustain it—are fairly weak when considering the broader state of competitive balance in college sports and could even be countered as pretextual. The revenue-sharing cap and anticircumvention measures do nothing to address the vast discrepancies in revenue that university athletic departments receive, either naturally through their individual markets and donor bases or more artificially through whether a school is blessed enough under the Rule of Reason and that the district court properly held that the NCAA’s failure to “adopt any consistent definition” of amateurism weakened it as a justification). See also id. at 109 (Kavanaugh, J. concurring) (deeming the NCAA’s amateurism argument “circular and unpersuasive,” framing it as “colleges may decline to pay student athletes because the defining feature of college sports … is that the student athletes are not paid”). to be included in a conference with a $5 million per school television deal or, with respect to the SEC and Big Ten, a $50 million or more per school television deal. Direct (and above-the-table) athlete pay is only the newest of a long history of financial arms races between college athletic programs; the schools who have been able to hire the biggest-name coaches, build the flashiest facilities, and afford the best nutrition programs have dominated college sports well before the House Settlement and NIL.
It also does nothing to address the pervasive and intentional biases in playoff seeding systems that are (increasingly) set to prioritize strength of schedule over actual performance, thus favoring teams in conferences with stronger perceived strengths of schedule and disfavoring teams who have little means of boosting their strength of schedule without a rarely offered invitation to one of those conferences. Regardless of whether there is a revenue-sharing cap or not, the Big Ten and SEC conferences will dominate in many sports (particularly the revenue sports of football and basketball)—a fact that pushes back strongly against the invocation of competitive balance to justify the cap and its anticircumvention measures. In fact, the NIL Go scheme will only exacerbate the problem by making it more difficult for schools with traditionally “weaker” programs but wealthier alumni to bolster their rosters through this recruitment tool.
Finally, the argument for competitive balance ignores that the salary caps used in professional sports leagues are arrived at through collective bargaining with the players’ unions. The revenue-sharing caps enforced by the CSC were agreed upon pursuant to a class action settlement and received significant objections from groups advocating for college athletes. They do not include trade-offs, such as guaranteed scholarships, health care, or improved safety standards. They only use the highest earning schools’ revenue as a basis for calculating the cap, skewing the limits into a higher range that smaller schools will never be able to meet. And they do not give athletes the leverage afforded by labor law to strike in case of bargaining impasse or receive the minimum benefits provided by employment law. Worse still, the NIL Go algorithm uses criteria that were unilaterally arrived at by the CSC and Deloitte. Athletes and boosters had no seat at the table to discuss what would be reasonable. As a result, there are no statutory or nonstatutory labor exemptions available to insulate the NCAA, the CSC, the conferences, or the universities from liability under the Sherman Act. And there are sure to be considerably less restrictive ways to ensure parity between the schools and the conferences.
Still, if a court did find this “competitive balance” rationale persuasive at Step 2 of the Rule of Reason analysis, another critical issue arises—one that implicates both Step 1 and Step 3 of the analysis: the unique structure of the NIL Go anticircumvention mechanism, which relies on algorithmic logic and competitively sensitive pricing data to restrict market behavior. In this light, the concern is not just what the rules do, but how they do it, since the use of a centralized algorithm to evaluate and enforce “reasonable range of compensation” thresholds introduces a coordinated pricing logic across conferences and schools. This structure raises the possibility that the CSC, NIL Go, conferences, and member institutions are engaged not just in traditional horizontal price fixing, but in a more modern and diffuse form of algorithmic collusion—one that both resembles the structure currently under scrutiny in multiple courts, legislatures, and attorneys general offices across the country and also goes even further, using its formulas not just to artificially suppress compensation but also to boycott an entire group of competitors that were previously an innovative, robust, and dynamic part of the market.
D. The Particular Problem with the CSC’s Algorithmic Maximum Price Fixing
One of the first judicial tests for algorithmic price-fixing cases, Gibson v. Cendyn Group,172 did not go particularly well for the plaintiffs. The plaintiff hotel guests had alleged a price-fixing conspiracy focused around a hub-and-spoke model with the pricing recommendation algorithm—offered by a hospitality revenue management software company called Cendyn—at the center. However, the court found that the plaintiffs failed to adequately allege that the defendants in direct competition with each other, the hotel casinos, had entered into an agreement, finding that the pricing software outputs were merely nonbinding recommendations. In other words, there was no agreement to abide by the “fixed” price set by the algorithm— the plaintiffs did not “allege that each spoke—Hotel Defendants—ever agreed to charge a price that the hub—Cendyn—demanded them to charge.”
Allegations against Deloitte and the CSC over alleged third-party NIL price fixing would not suffer from such a deficiency. While this particular scheme has, as illustrated in Figure 1 above, more layers than the Cendyn or RealPage hub- and-spoke conspiracy, it still operates as a hub-and-spoke but simply with more “hubs” and more “spokes.” Deloitte and the CSC, running the pricing algorithm at the center, operate as the hub, providing information to the conferences, schools, and athletes themselves as to what athletes are permitted to charge interested third parties for their NIL services. The conferences and schools act as additional enforcement mechanisms for the CSC, putting pressure on the athletes—the instruments of the price fix—to report deals while agreeing to accept and enforce punishments levied by the CSC. Indeed, the power conferences have pushed their schools into a horizontal agreement to abide by the CSC’s mandates over countervailing state law if necessary.
And the CSC’s directions are just that—mandates, not recommendations. While the CSC’s decisions to prohibit NIL deals are appealable and framed as nonbinding, athletes that accept deals rejected by the CSC face potential enforcement consequences up to and including the loss of eligibility. Similarly, schools that act to circumvent the revenue-sharing cap by facilitating NIL deals outside of NIL Go’s parameters face their own punishment, including multimillion dollar fines, a reduction in transfers that a school can acquire from the portal, and postseason bans. And for schools who follow conflicting state law over CSC mandates, the participation agreement that the CSC is pushing power conference schools to sign means that schools that so much as “support, advocate for or lobby for any change in federal, state or local law that would alters its obligations under” the CSC participation agreement “risk[] the loss of conference membership and participation against other power league programs”—or, in other words, a group boycott. This activity is far closer (and even far beyond) the allegations of “conduct to facilitate and enforce the implementation of the pricing recommendations” that was sufficient to survive a motion to dismiss in the renter cases.
As in those cases, the CSC’s system only works if each athlete “divulges its confidential and commercially sensitive pricing,” allows the CSC “to determine the price” of each NIL deal, and then “adopts that price with very little, if any, second guessing.” And while the court in Gibson agreed with the defendants that “Plaintiffs’ failure to plausibly allege the exchange of confidential information from one of the spokes to the other through the hub’s algorithms” was a “fatal defect” in the hub-and-spoke conspiracy claim, that failure is decidedly not the case in this new system. Through the House Settlement, the CSC is requiring all Division I athletes to disclose any NIL deal over $600 to the system—regardless of whether the agreement is made with an associated entity or individual or even if the athlete is at a school that does not opt in to the settlement agreement—almost certainly in part to acquire the information needed to train the NIL Go algorithm and compare incoming deals to “similar types of NIL deals struck between an athlete and the third party.”
And the data is very clearly confidential and commercially sensitive. Agents and third parties have already complained about the need to disclose this pricing and contract information, fearing accidental or intentional public disclosure by Deloitte. Indeed, several states have acted to exempt athlete NIL deals from public disclosure laws. With several algorithmic price-fixing cases distinguishing between the policing of public prices and more sensitive private prices,189 NIL pricing information falling by state law into the latter category is clearly relevant and material when discussing the antitrust implications of that forced disclosure.
In this respect, NIL Go’s algorithmic price fixing very much mirrors—and even goes beyond—the schemes challenged in Duffy, Cendyn, and RealPage. Indeed, as noted earlier, the NIL Go scheme carries all of the “plus factors” identified by the Supreme Court in Twombly like parallel price increases (or, in this case, parallel price decreases), the exchange of confidential and commercially sensitive information, mandatory adherence to the algorithm’s pricing recommendation, changes in policies to only allow deals that are priced lower than what the free market may otherwise provide, acting against their own recruiting self-interests, and strict policing by the operator or competitors to ensure compliance.
Compare NIL Go to just some of the allegations in the RealPage cases, for example. The amended complaint filed by the United States and the state attorneys general alleges that landlords submit sensitive, nonpublic competitor pricing information so that RealPage’s algorithm can establish a “market range” for landlords. This allows landlords to “effectively agree to outsource their pricing function to RealPage with auto acceptance” making it so that RealPage’s algorithm “and not the free market, determines the price that a renter will pay.” Similarly, college athletes are required under the House Settlement to both submit their sensitive market information and outsource their pricing functions so that their services are only offered within the Deloitte algorithm’s determination of a “reasonable range of compensation” rather than what the free market would otherwise bear.
Similarly, the government plaintiffs in RealPage have alleged that RealPage (1) created procedures that make it much more difficult and time consuming to use into law on Mar. 28, 2025); S.B. 4439 (N.J. 2025) (passed both houses June 30, 2025); H.B. 4643 (Mich. 2025) (pending). a price that was not recommended by RealPage; and (2) employs price advisors that train clients, encourage their use of the price recommendations, and review their requests to override price recommendations—both to ensure adherence to the algorithm’s pricing recommendation and police compliance. The college sports industry has a similar setup, with compliance officers trained by the NCAA at each school, the CSC’s compliance enforcement, and the difficulty of an athlete challenging the rejection of a deal by the NIL Go system.
And finally, the government plaintiffs have also alleged in RealPage that RealPage encourages landlords to adhere to price recommendations, even if doing so leaves them below full occupancy or if the algorithm recommends prices that are above a weakened market, clearly pointing toward the idea that these landlords are acting against their self-interests by aligning with RealPage’s algorithmic recommendations. For the CSC, the self-interest plus factor is obvious. Even if the industry as a whole has an interest in ensuring competitive balance (or, more cynically, tamping down labor costs), athletes clearly have an interest in higher- priced NIL deals, and the schools themselves have an interest in allowing third parties like boosters and collectives to pay those labor costs for them and to use their resources to recruit the best athletic talent for their programs.
These structural parallels matter not only because of how NIL Go is designed, but also because of how antitrust law treats enforcement—even when it is uneven, imperfect, or incomplete. So even if NIL Go compliance turns out to be uneven—if athletes misreport, schools look the other way, or state laws interfere—the system’s legal risk does not disappear. A price-fixing conspiracy need not be airtight to violate the law. So long as an arrangement creates a “coercive business climate” in which actors knew of the price fix, “understood the consequences of failure to comply and thus generally complied” with such an arrangement will go beyond the “safe harbor” of “announcement plus mere refusal to deal.” A hole-filled conspiracy is still a conspiracy.
In summation, the NIL Go algorithm also runs afoul of a principle that guides every antitrust lawsuit: “In the Sherman Act, Congress tasked courts with enforcing a policy of competition on the belief that market forces ‘yield the best allocation’ of the Nation’s resources.” By restricting the purpose and value of NIL deals to those unilaterally deemed acceptable by the CSC, it deprives schools, athletes, advertisers, and boosters of a free market place; takes allocation of athlete and booster resources out of the free market and into the hands of administrators; and does so with no discernible benefit to consumers and significantly more restrictions than competitive balance on the playing field requires.
E. Potential Plaintiffs: What Litigation Does the House Settlement Stop and
What Litigation Does It Not Stop?
Of course, in addressing potential litigation challenging NIL Go, one must first address the elephant in the room: the protections for the new system baked into the House Settlement. The House lawsuit alleged that NCAA rules prohibiting students from profiting from their NIL violated federal antitrust laws. Yet the House Settlement explicitly permits NCAA rules that continue to prohibit NIL deals with associated entities that do not meet the NCAA’s chosen criteria, a clear horizontal agreement to limit compensation available to college athletes. These types of restraints are permissible in professional leagues only because of the statutory and nonstatutory labor exemptions that permit and protect collective bargaining. That path is, for a variety of reasons, not clearly possible or probable in the current college sports athletic environment.
With college athletes lacking a true collective bargaining arrangement, the House Settlement takes a different path, relying on class action settlement terms, release clauses, and collateral estoppel to try to ensure that the college sports industry’s new path is protected from legal challenge moving forward. Yet it is unquestionable that relying on class action settlement release clauses does not provide anything close to the same level of legal insulation as a collective bargaining agreement or legislative antitrust exemption, leading everyone from journalists,203 scholars,204 and the Justice Department,205 to point out the potential weak spots in the House Settlement moving forward. Indeed, the order approving the settlement did not declare them valid under section 1 of the Sherman Antitrust Act. Judge Wilken instead simply declined to engage in a Rule of Reason analysis of the agreement,206 finding that sort of adjudication irrelevant to the settlement approval process. And let it not be said that stakeholders are unaware of these issues, as clearly evinced through their continued lobbying to Congress to protect the settlement’s terms through federal legislation.
Judge Wilken was clear in her opinion and order granting final approval of the settlement that she does not believe the release clause in the settlement applies to claims challenging the implementation of terms of the injunctive relief portion of the settlement, including the revenue-sharing cap and its anticircumvention measures. However, the NCAA likely will not see it that way. Indeed, they have already signaled in a letter to the Department of Justice that they may seek to use collateral estoppel as an affirmative defense against any challenges to the revenue- sharing cap. Such a strategy may have limited success—in the words of Judge Wilken, the NCAA “may make these arguments but that does not mean they will be successful.” But the risk must be addressed regardless.
Even if the settlement agreement does not release any future claims by athletes based on implementation of the injunctive relief terms, the settlement does give Judge Wilken’s courtroom (and her appointed special master, Magistrate Nathanael Cousins) exclusive jurisdiction “to resolve all disputes that may arise concerning compliance with, the validity of, interpretation or enforcement of the terms and conditions of this Injunctive Relief Settlement.” Additionally, the agreement provides that any such disputes asserted on behalf of athletes “shall be prosecuted exclusively by Class Counsel.” And even for issues where Hagens Berman and Winston & Strawn wish to challenge CSC actions like they did with the CSC’s categorical exclusion of NIL collective deals under the “valid business purpose” provision,215 the settlement provides a process for challenges specific to adopted rules related to settlement circumvention—a category of rules that very likely would include the rules discussed throughout this article. This process necessarily involves arbitration and the special master, making any sort of private litigation likely to draw a motion to compel arbitration.
As such, antitrust actions by the athletes themselves face a difficult path at the outset. But the athletes are not the only parties involved in the promulgation of rules restricting their third-party NIL deals. Indeed, two categories of third parties whose interests have been potentially affected by the revenue-sharing cap come to mind.
The first is the government. In the waning days of the Biden administration, the Justice Department submitted a statement of interest to the House docket arguing that the settlement merely “replaces an agreement among competitors to cap compensation for use of college athletes’ NIL at $0 with an agreement among competitors to cap compensation at 22% of average revenue” and thus “raise important questions about whether the settlement is fair, reasonable, and adequate.” While the Trump administration did not pick up this attack once taking office,219 they could at a later date, and a state Attorney General could make a similar case in litigation. States leading challenges to objectionable rules in college sports is hardly unprecedented; antitrust litigation led by state Attorneys General achieved injunctive relief that forced the NCAA to significantly loosen its restrictions on athlete transfers and abolish rules prohibiting athletes from negotiating NIL deals prior to enrollment. Indeed, a statement issued by the Attorneys General of Tennessee, New York, Ohio, Florida, and the District of Columbia in opposition to the SCORE Act argued that the act’s enshrinement of the House Settlement “attempts to shield the NCAA from accountability by precluding States from challenging how its new College Sports Commission determines what constitutes charged with overseeing disputes concerning the injunctive relief). acceptable third-party NIL payments under the vague ‘reasonable range of compensation’ and ‘valid business purpose’ standards in the new third-party NIL compensation system.”
But while the Justice Department and the states may not feel it necessary to get involved, a third group exists that could certainly feel that their interests are trampled in some regard by the settlement’s revenue share cap: the boosters and collectives identified as “Associated Entities and Individuals” within the settlement terms. These groups are specifically targeted—both by the settlement itself and by later-issued (and since revoked) CSC guidance—with their NIL deals subjected to a stringent clearinghouse prior restraint where their prospective business partner athletes risk losing eligibility if they move forward with a deal that the clearinghouse rejects. And the door is wide open to a claim by these affected entities, as Judge Wilken made clear in a footnote in her final approval order that not only was she declining to opine on the legality of the cap itself, but also that “the question of whether the third-party Associated Entity NIL provisions violate the Sherman Act has not and will not be adjudged.”
Even with the “Associated Entities and Individuals” term making the range of NIL deals narrower than it was in the original settlement,227 including everyone who has ever been a member of an NIL collective or a school’s booster club, the range of affected deals is still quite broad. This, correspondingly, makes the list of potential parties potentially harmed by NIL Go broad as well. And while one might argue that these entities can avoid CSC ire by simply engaging in deals that are within a “reasonable range of compensation” and for a “valid business purpose” (i.e., not pay-for-play), that goes against the very nature of many of these individuals’ and entities’ interests (they want to continue to serve their favored schools by incentivizing the most talented athletes to go there) and the very purpose of the Sherman Act, free and open competition. Importantly, these boosters were not parties to the House litigation, nor were they class members. Thus, they may not be bound by the House Settlement’s arbitration provisions and could initiate their own lawsuits challenging the settlement’s legality—namely, its restraints on their ability to participate in the market for college athlete’s NIL. One quoted personnel director stated definitively that “[i]f you tell a booster or business owner they can’t give a star player $2 million, there will be lawsuits.”
As such, it is clear that the CSC’s authority will be tested—and tested soon. And whether that authority is properly given or properly used is not the only potential legal issue that may soon face the CSC. After all, the CSC and NIL Go model do not just introduce a new compliance framework for college sports. They also shift that compliance model into a new age of algorithmic pricing coordination and enforcement—an area where the CSC does not stand alone.
IV. CONCLUSION
It is crystal clear that the CSC and the NCAA were prepared for the inevitable legal challenges of their new revenue-sharing system. They hired experienced lawyers with management experience in professional sports, built out a complex enforcement apparatus, and attempted to preempt legal risk by embedding arbitration clauses, waiver agreements, and state-law workarounds into the very structure of the settlement.
But the clarity of their own exposure does not insulate their institutional partners. On the contrary, general counsels at universities now face the difficult task of navigating this new compliance regime in a legal environment where algorithmic price coordination—particularly when backed by enforcement threats and group pressure—sits squarely in the crosshairs of regulators and plaintiffs’ attorneys. And if NIL Go is ultimately found to be an illegal hub-and-spoke conspiracy, universities may not be able to hide behind the settlement’s structure or point fingers at the CSC—they may instead find themselves as spokes held liable for participating in the wheel.
For general counsel at participating institutions, the most immediate risk is not just litigation—it is embedded liability within the everyday administration of NIL deals. By signing settlement participation agreements, compelling athletes to submit contracts to NIL Go, and enforcing the CSC’s determinations internally, universities are no longer passive observers of a centralized compliance model. They are active participants. Each decision to approve, deny, or discipline based on an algorithmic “reasonable range of compensation” determination could be framed as evidence of a coordinated scheme—particularly if enforcement is shown to align across institutions or was undertaken in reliance on confidential data circulated through the CSC. Even absent a formal agreement between schools, plaintiffs could plausibly argue that the structural pressure and mutual commitments among member institutions amount to a horizontal understanding with market-restraining effects.
The full legal implications of NIL Go—and of algorithmic compliance more generally—are still unfolding. What is clear, however, is that the convergence of sensitive pricing data, centralized enforcement, and algorithm-driven decision- making presents novel risks that extend well beyond traditional NCAA compliance models. For now, the CSC and its affiliated vendors remain the focal point of those concerns. But the broader use of algorithmic pricing and benchmarking tools in college sports—whether in NIL administration, scholarship allocation, or internal budget modeling—may eventually draw similar scrutiny. University general counsels would be well advised to treat NIL Go not as an isolated development but as an early example of a compliance landscape increasingly shaped by opaque logic and shared data.
