So if current promoters formed a "league" and then said "Players who play in our league that play in competing events during league events will face censure." would be illegal ? If this is the case every major sports league and the WPBA would be violating the law.
It would take one meeting to happen. As I stated above I don't think it will happen right away but it is certainly possible. I hope it never does as it would be bad for everyone but it is a contingency that must be considered. Another contingency is some people just decide to take their ball and go home. A lot of people who have put a lot of money into pro pool are getting tired of players jumping ship at any new guy waving promises of fame and fortune around. At some point there is a line. Will we see it here ? Who knows. Thats what makes it interesting.
If the "league" is a sham formed with the primary intent of collectively disadvantaging an entrant, then yes it could well be illegal.* How would DOJ, a state AG, or a private litigant learn about intent? Through subpoenas and depositions, normally, which gets very expensive very quick, even for parties that prevail.
On the other hand, if the "league" were a bonafide new product and the exclusivity provisions very important to the existence and success of the new product, then it may pass antitrust scrutiny. That was the principle under which ASCAP was formed: without ASCAP, royalties for playing songs would have to be negotiated on a one-by-one basis between performers and businesses that want to play music. Given that it would be costly in the extreme to do that, it made more sense to allow the labels to jointly set uniform music licensing prices and policies. In contrast, if the venture were formed to collectively lessen or eliminate a competitive threat (e.g., book publishers
conspiring against Amazon's pricing pressure), then the conclusion could be very different.
Your sports analogy is very much on point. Many major antitrust cases involve the limits of what collections of teams (i.e., leagues) can and cannot do jointly vis-a-vis players and other firms. E.g.,
NCAA vs. Board of Regents and most recently,
American Needle, which basically recognized that NFL teams can work together when doing so is necessary to the functioning of the league, but that in other areas, such as licensing to apparel makers, NFL teams are "potentially competing suppliers of valuable trademarks . . . Decisions by NFL teams to license their separately owned trademarks collectively and to only one vendor are decisions that 'depriv[e] the marketplace of independent centers of decision making,' and therefore of actual or potential competition . . . " Hence, the Supreme Court ruled that, in the context of apparel licensing, the joint actions of the NFL teams were subject to the antitrust laws.
Again, I don't think antitrust litigation in pool is at all likely, so file this under
the more you know.
Cory
* I'm not an attorney and this is not legal advice. But I do know and work with antitrust issues every day.