Document Type

Article

Publication Date

2022

Abstract

Anticompetitive conduct involved in purchasing labor services by a group of firms (or a single firm) sometimes may have the effect of benefiting downstream consumers even as the conduct harms the firms’ workers. Defendants may attempt to justify those restraints—and may argue the ancillary restraints doctrine allows them—on the grounds that the restraints create efficiencies benefitting downstream purchasers, rather than focusing solely on the impact of the restraint on the workers. Such multi-market balancing of harms and benefits across diverse groups should be rejected by antitrust doctrine generally, and specifically in the case of harms to workers. This type of multi-market balancing is not supported by either economic analysis or the basic goals of the antitrust laws. Antitrust’s consumer welfare prescription properly protects the trading partner participants (e.g., workers) in any relevant market who are harmed by competitive restraints. Doctrinal and practical considerations weigh against allowing that protection to be traded against benefits to other groups. This proposition flows both ways; putting aside antitrust exemptions, it is similarly inconsistent with antitrust doctrine to permit workers to coordinate in ways that harm downstream purchasers, based on a purported justification that this purchaser harm is offset by benefits to the workers in countervailing monopsony power. We conclude that in all cases, multi-market balancing that treats out-market-benefits as cognizable justifications for the restraints on workers should be rejected. However, since courts sometimes may not agree, we also briefly discuss how and in what circumstances such balancing might be undertaken. We apply this analysis to a series of real and hypothetical scenarios that raise paradigmatic issues involving these potential conflicting effects. We also apply our analysis to a likely post-Alston case attacking the NCAA restraints on non-education payments to student-athletes in light of the points made in Justice Kavanaugh’s concurrence in Alston.

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