Professional Basketball Competitive Markets Act (proposal)

This proposal does not touch football, baseball, or hockey, or womens sports — see § 502. The antitrust mechanism differs league by league, and only the NBA's has been verified in depth (see Is the NBA a monopoly?). Status: citizen-drafted policy proposal, not bill text. This has not been reviewed by legislative counsel and should not be introduced verbatim. It is written in bill-like structure to make the ask concrete for a congressional office, and to make the legal reasoning behind it checkable. Treat section numbers, definitions, and effective-date mechanics as a draftsman's sketch that a sponsor's staff would need to redraft to House/Senate Legislative Counsel standards before introduction.

Findings

  1. The National Basketball Association is the dominant, and effectively only, market for elite professional basketball entertainment (a monopoly) and elite basketball labor (a monopsony) in the United States, generating a projected $14.3 billion in the 2025–26 season.1
  2. Under 15 U.S.C. § 1291, the NBA's thirty member clubs — legally separate, competing businesses2 — may jointly pool and sell their broadcast rights as a single bloc, an agreement creating an effective monopoly that would otherwise be a per se violation of the Sherman anti-trust Act. This exemption was enacted in 1961 for a broadcast-television market that no longer exists.3
  3. The NBA Constitution bars transfer of a franchise to any governmental or quasi-governmental authority, foreclosing municipal, county, or State ownership outright; a Green Bay Packers-style nonprofit/shareholder ownership model faces no equivalent textual ban, but is blocked in practice by the same supermajority Board of Governors approval requirement that governs any change of ownership, which lets incumbent owners simply vote down a community-ownership bid.4
  4. The NBA has engaged in anti-competitive behavior to exclude the Big3 league, to preserve its monopoly, including alleged "group boycotts" pressuring team owners, sponsors, and players not to do business with rival leagues.5
  5. Separately, restrictions on the movement and pay of first-contract NBA players — the player draft, the rookie compensation scale, and restricted free agency — are shielded from antitrust review not by any statute Congress passed, but by the non-statutory labor exemption, a judicial doctrine recognized in Brown v. Pro Football, Inc., 518 U.S. 231 (1996). That doctrine does not ask whether a restraint is competitive — only whether it was reached through bona fide collective bargaining.6
  6. The players who bear this restraint — each year's incoming draft class — have no vote in the union that bargains their entry-level terms; that union's voting membership is composed of the veteran players already employed under the league's rules.7 The 1994–95 NBA rookie wage scale followed within one season of the largest unrestricted rookie contract in league history, consistent with a restraint that binds below the rate an open market had just revealed players could command.8
  7. Congress has precedent for legislating antitrust coverage back onto a professional sports labor market: the Curt Flood Act of 1998, codified at 15 U.S.C. § 26b, subjected Major League Baseball's player-employment practices to the antitrust laws. That Act is precedent for the technique used in Title IV of this proposal, but not for its substance — the Curt Flood Act addressed MLB's own separate, broader judicial exemption (not the non-statutory labor exemption at issue here), and it explicitly declined to touch the draft, the reserve clause, or the minor leagues.9 Title IV of this proposal goes further than any enacted precedent, by design, for the reasons stated in Findings 5 and 6.

Title I — Repeal of the Basketball Broadcast Pooling Exemption

§ 101. Short title. This title may be cited as the "Basketball Broadcast Competition Act."

§ 102. Amendment. Section 1291 of title 15, United States Code, is amended by striking "football, baseball, basketball, or hockey" each place it appears and inserting "football, baseball, or hockey."10

§ 103. Effective date. This title takes effect on the date of enactment and applies to any broadcast agreement entered into, renewed, or renegotiated on or after that date. It does not disturb the validity of an agreement already in effect on that date for the remainder of its original term.

Title II — Franchise Ownership Structure Reform Act

§ 201. Short title. This title may be cited as the "Franchise Ownership Structure Reform Act."

§ 202. Municipal, county, and State ownership must not be barred. The NBA's governing constitution or bylaws may not categorically prohibit a municipal, county, or State government from submitting a competitive bid for ownership of a franchise operating within, or relocating to, that government's jurisdiction. Cities hosting NBA teams must be permitted to bid on the same terms available to any other prospective owner, as the City of Harrisburg, PA did in acquiring the minor-league Harrisburg Senators.4 11

§ 203. Practical barrier to non-profit/shareholder ownership must be removed. The NBA's ownership-approval process — including its supermajority Board of Governors vote — may not be used to categorically exclude a Green Bay Packers-style nonprofit, community-shareholder ownership structure that meets the same financial and governance standards applied to other prospective owners. Such a structure has working precedent at the minor-league level in the Rochester Red Wings.4 12

§ 204. Publicly traded, for-profit shareholder ownership must not be barred. The NBA may not prohibit ownership by a publicly traded, for-profit corporation, of the kind Major League Baseball already permits (Toronto Blue Jays via Rogers Communications; Atlanta Braves via Nasdaq-listed Atlanta Braves Holdings) — an ordinary dividend/appreciation-eligible stock structure, distinct from both § 202 and § 203.4

§ 205. Single-entity league structure prohibited. The NBA may not restructure itself as a single entity that itself owns every member club, of the kind Major League Soccer currently operates as, for the purpose of foreclosing the ownership questions addressed in §§ 202–204.4

§ 206. Effective date. This title takes effect on the date of enactment and applies to any ownership-approval decision made on or after that date.

Title III — Alternate League Non-Interference Act

§ 301. Short title. This title may be cited as the "Alternate League Non-Interference Act."

§ 302. Prohibition on exclusionary conduct against rival basketball leagues.

(a) In general. It is unlawful for the NBA, its member clubs, or their officers, agents, or affiliates to engage in a group boycott or other coordinated pressure campaign directed at a team owner, sponsor, broadcaster, venue operator, employee, or player, for the purpose of preventing that person from forming, sponsoring, or participating in a rival professional basketball league.13

(b) Relation to existing antitrust law. Conduct described in subsection (a) is subject to review under Section 1 of the Sherman Act (15 U.S.C. § 1) as an unlawful agreement in restraint of trade, and under Section 2 of the Sherman Act (15 U.S.C. § 2) as exclusionary conduct maintaining monopoly power, regardless of whether the NBA's underlying market dominance is itself lawful.14 This section does not create a cause of action beyond existing Sherman Act liability; it states, for this specific conduct, that no exemption available to the NBA under Title I or otherwise extends to conduct excluding a rival league.

(c) Rule of construction. Nothing in this section prohibits the NBA from competing with a rival league on the merits — through a superior product, contract terms voluntarily negotiated, or venue access obtained without coercion.15

§ 303. Effective date. This title takes effect on the date of enactment.

Title IV — Entry-Level Player Market Competition Act

§ 401. Short title. This title may be cited as the "Entry-Level Player Market Competition Act."

§ 402. Application of antitrust laws to entry-level restraints.

(a) In general. Notwithstanding the non-statutory labor exemption recognized in Brown v. Pro Football, Inc., 518 U.S. 231 (1996), or any successor doctrine, an agreement, rule, or practice of a covered basketball league, its member clubs, or the exclusive bargaining representative of the league's players, that restrains the compensation, assignment, or mobility of a covered player during that player's first contract of professional employment — including an entry draft, rookie compensation scale, or restriction on free agency applicable exclusively to first-contract players — is subject to review under the antitrust laws to the same extent as an agreement among competing business enterprises generally.

(b) Definitions.   (1) Covered basketball league means a league described in section 1291 of title 15, United States Code, as in effect before the amendment made by section 102.   (2) Covered player means a player who has not yet completed that player's first contract of professional employment with the league.

(c) Rule of construction. Nothing in this section —   (1) prohibits a covered basketball league or its players' exclusive bargaining representative from negotiating or maintaining an entry draft, rookie compensation structure, or related rule — such a rule remains lawful if it can be defended, when challenged, on its competitive merits under the antitrust rule of reason;   (2) diminishes any right of a labor organization to engage in collective bargaining under the National Labor Relations Act on any other subject; or   (3) affects the applicability of the antitrust laws to any term or condition of employment not described in subsection (a).

§ 403. Effective date; contingency on Title I.

(a) In general. Except as provided in subsection (b), this title takes effect on the date of enactment of this Act.

(b) Contingency. This title has no force or effect unless and until Title I has taken effect. If Title I is later repealed, or is held invalid by a court of competent jurisdiction, this title ceases to have force or effect as of that repeal or holding.16

Title V — General Provisions

§ 501. Severability. If any provision of this Act, or the application of a provision to any person or circumstance, is held invalid, the remainder of the Act and the application of the remaining provisions to any other person or circumstance are not affected.

§ 502. Scope. This Act applies only to the basketball league described in section 1291 of title 15, United States Code, as in effect before the amendment made by section 102. Nothing in this Act applies to a football, baseball, soccer, or hockey league, or to the WNBA. This Act is intended as a single-league pilot; extending comparable reforms to other leagues would require separate legislation and separate league-specific findings.

Footnotes

  1. NBA revenue is projected at $14.3 billion for the 2025–26 season, up from $11.3 billion in 2024, driven substantially by the league's new 11-year, $76 billion national media rights deal. See Is the NBA a monopoly? for full sourcing. ↩

  2. American Needle, Inc. v. NFL, 560 U.S. 183 (2010) held unanimously that a league and its member teams are not a single entity for Sherman Act § 1 purposes — each team is "a substantial, independently owned, and independently managed business" whose joint conduct can be challenged as an unlawful agreement. The holding concerned NFL merchandise licensing, but its "not a single entity" reasoning is general and has been treated as applying across the major leagues, including the NBA. ↩

  3. 15 U.S.C. § 1291 reads, in relevant part: "The antitrust laws... shall not apply to any joint agreement by which any league of clubs participating in professional football, baseball, basketball, or hockey contests sells or otherwise transfers all or any part of the rights of such league's member clubs in the sponsored telecasting of the games of football, baseball, basketball, or hockey contests..." Enacted as the Sports Broadcasting Act of 1961, in response to a court ruling that pooled broadcast-rights agreements among competing teams violated antitrust law — at a time when broadcast television, with no cable and no streaming, was the only distribution channel being regulated. ↩

  4. The NBA Constitution bars transfer of a franchise to "any governmental or quasi-governmental authority, agency, or instrumentality," and requires supermajority Board of Governors approval of any new owner — a textual bar on government ownership, and a practical (not textual) barrier to nonprofit/community ownership, since incumbent owners can vote down a bid without the Constitution needing to name nonprofits specifically. MLB has grandfathered publicly traded ownership (Toronto Blue Jays via Rogers Communications; Atlanta Braves via Nasdaq-listed Atlanta Braves Holdings) as ordinary for-profit stock, distinct from both models. MLS instead operates as a single entity in which the league itself owns every team. (NBA Constitution text; Sportico; see Public ownership.) Open verification item: the exact NBA Constitution article/section number for the governmental-ownership bar has not been confirmed against a clean primary-text copy — see Public ownership's open items — and should be verified before this proposal is treated as more than a policy sketch. ↩↩↩↩↩

  5. Hasskamp, Luke & Donovan, Molly. "Does the NBA have an antitrust problem? A rival basketball league may think so." The Antitrust Attorney Blog. https://www.theantitrustattorney.com/does-the-nba-have-an-antitrust-problem-a-rival-basketball-league-may-think-so/ — discussing DOJ scrutiny of alleged NBA conduct excluding the Big3 league. See Is the NBA a monopoly? for full discussion. ↩

  6. The non-statutory labor exemption is described by antitrust counsel as exempting "agreed-upon terms in a collective bargaining agreement from antitrust scrutiny, no matter how uncompetitive the terms may be" — the doctrine's test is procedural (was there bona fide bargaining), not substantive (is the result competitive). This is the specific legal gap Title IV is written to close, narrowly, for first-contract players only. ↩

  7. This is a structural, not personal, critique: a union's leadership is accountable to its current voting membership, which is necessarily composed of players already employed, not the incoming class whose entry terms are being set. The dynamic is documented in the analogous 2011 NFL rookie wage scale negotiation — a different league, under the same non-statutory labor exemption doctrine — where a sportswriter's account states plainly that it was "far easier to get the current members of the union to pick the pockets of players who weren't yet in it." This is offered as a parallel illustrating the mechanism, not as direct evidence about the NBA. ↩

  8. In November 1994, the Milwaukee Bucks signed #1 overall pick Glenn Robinson to a 10-year, $68 million contract — the richest rookie deal in NBA history at the time. Within one season, the league and its players' union agreed to a fixed rookie wage scale that has capped rookie compensation well below open-market levels ever since. This is offered as a before/after data point on what an unrestrained rookie market can produce, not as proof of any specific counterfactual dollar figure today. ↩

  9. The Curt Flood Act of 1998 subjected Major League Baseball's major-league player employment practices to the antitrust laws, ending a judicial exemption unique to baseball dating to Federal Baseball Club v. National League, 259 U.S. 200 (1922) and reaffirmed in Flood v. Kuhn, 407 U.S. 258 (1972). The Act states explicitly that nothing in it affects "the antitrust status of the relationship between organized professional baseball's major league clubs and its minor league clubs," or "the application of the antitrust laws to... the amateur draft." Two limits on the analogy matter: first, the Curt Flood Act narrowed baseball's own broader judicial exemption, not the non-statutory labor exemption that Title IV addresses, which is a different doctrine shared across the NFL, NBA, and NHL; second, Congress — even when directly legislating in this space — chose not to touch the draft. Title IV is a further step than the only prior precedent, and is presented as such rather than as a natural extension of it. ↩

  10. This is standard "strike and insert" drafting: the amendment removes "basketball" from § 1291's list of covered leagues (which appears twice in the operative text quoted in note 3 — once defining which leagues' agreements are covered, once defining which sports' telecasts qualify) while leaving the exemption for football, baseball, and hockey untouched, consistent with the single-league scope stated in § 502. ↩

  11. City of Harrisburg, Pennsylvania bought the Harrisburg Senators outright for $6.7 million in 1995 specifically to block their relocation to Springfield, Massachusetts — the clearest verified U.S. example of a government directly owning a professional baseball franchise, not merely its ballpark. The city ran the team as a municipal asset for over a decade before selling it in 2007 for $13.25 million with a 29-year stay clause attached. This is a minor-league baseball precedent, not an NBA one — offered as proof that municipal ownership of a professional sports franchise is operationally possible, not that it has been done in basketball. (Wikipedia: Harrisburg Senators; see Public ownership.) ↩

  12. The Rochester Red Wings have been owned since 1957 by Rochester Community Baseball, Inc., a nonprofit formed when a local stock drive of 8,221 shareholders bought the team from the Cardinals — the "72 Day Miracle." Along with the Green Bay Packers, this is one of only two current publicly/community-owned professional franchises in the U.S. that this research could confirm; also a minor-league baseball precedent, offered as an existence proof for the ownership structure rather than a basketball-specific example. (Wikipedia: Rochester Community Baseball; see Public ownership.) ↩

  13. Ibid. (Section 1 theory, discussed in note 5: alleged "group boycotts," such as pressuring team owners, sponsors, and players not to do business with rival leagues.) ↩

  14. Ibid. (Section 2 theory, discussed in note 5: using monopoly power to coerce market actors — e.g., threatening retaliation against partners who engage with competitors — constitutes illegal exclusionary conduct even though holding a monopoly is not itself illegal.) ↩

  15. Ibid. (Noting, per note 5, the NBA's likely defense that its dominance rests on a "superior product" rather than coercion, and that this title is not intended to prohibit competing on the merits.) ↩

  16. Drafting note: the contingency in § 403(b) is intentional and directional — it exists so that this Act cannot narrow players' collective-bargaining protections without first, and simultaneously, narrowing team owners' broadcast-pooling immunity. It is not intended to make Title I contingent on Title IV. ↩