Antitrust and labor

The Federal Trade Commission under Chair Andrew Ferguson has surprised many by continuing its predecessor’s emphasis on protecting labor markets. Randy Kim writes that while this is a welcome development, it will do little to help workers if President Donald Trump does not also continue his predecessor’s whole-of-government approach. Early indications suggest he will not.

Steven C. Salop recommends that the next presidential administration continue to focus competition policy on protecting against adverse labor market outcomes. He suggests several policies the administration might pursue to achieve these benefits.

Jake Goidell argues that the ongoing NCAA lawsuit settlements will not create a lasting solution unless athletes form a players association that is involved in determining industry-wide decisions.

Diana Moss and Jason Gold write that the major private antitrust lawsuit involving how the National Collegiate Athletic Association governs compensation for college student athletes overreaches by remaking the model of college sports in the United States. Instead, the paradigm shift in college athletics should be deliberated and decided through the legislative process.

Eric A. Posner argues that merger review would benefit from involving union representatives to protect labor interests.

Gus Hurwitz replies to Jonathan Masur and Eric Posner’s May 8 article defending the Federal Trade Commission’s Congressional mandate to enforce a rule banning noncompetes. He argues that Congressional responses to FTC rulemaking in the 1970s suggest courts are unlikely to find that the FTC possesses such authority, either as a matter of statutory interpretation or under the major questions doctrine.

Jonathan Masur and Eric Posner argue that the Federal Trade Commissions’ recent ban on noncompete clauses is lawful under the plain language of the Federal Trade Commission Act, longstanding court precedent, and well-established administrative law principles.

On March 13, the Ultimate Fighting Championship settled several lawsuits, including Cung Le v. Zuffa, which was scheduled to go to trial in April. The plaintiffs in Cung Le had accused the mixed martial arts organization of several anticompetitive behaviors that led to the suppression of fighter wages. Stephen F. Ross and Gurtej Grewal recount the facts of the case and what the settlement might mean for the industry.

Similar to noncompete clauses in employment contracts, training repayment agreements, which require employees to pay back their employers for firm-sponsored training if they quit early, can impede worker mobility and reduce competition in labor markets. The authors document the pervasiveness and characteristics of these provisions and suggest directions for future research.

Nearly one in five American workers are affected by noncompete agreements, which prevent workers from working for or creating a rival firm. In new research, Axel Gottfries and Gregor Jarosch estimate that the Federal Trade Commission’s proposed noncompete ban could raise wages by 4%.