Pam Bondi as Attorney General Could Shake Up Sports

Former Florida Attorney General Pam Bondi is President-elect Donald Trump's revised pick to lead the U.S. Department of Justice. If confirmed by the U.S. Senate, Bondi will play an instrumental role in reshaping the business of sports-especially in how antitrust law governs the industry.

Bondi, who served as Florida's AG from 2011 to 2019, is no stranger to antitrust issues in sports. In 2016, she led a group of states' attorneys general in negotiating a settlement with the NFL regarding a league-wide mandatory price floor policy. The league previously required each team to impose a price floor on secondary market ticket sales. This policy, Bondi and other AGs alleged, was problematic under antitrust law and generated artificially high ticket prices. The settlement required the NFL to refrain from directing teams to use ticketing practices that made it more difficult to buy tickets on competing exchanges.

After completing her term as attorney general, Bondi joined the lobbying firm Ballard Partners to direct the firm's corporate regulatory compliance practice. Major League Baseball retained Ballard Partners, including Bondi, to lobby on unspecified issues "related to combating human trafficking," which was a league focus in conjunction with its players' union at the time.

Bondi, 59, would become the country's attorney general while college sports is at a legal crossroads. The traditional understanding of amateurism, with college athletes as unpaid amateurs, is gone. College athletes can be paid by third parties, including collectives that resemble pay-for-play boosters, for use of their name, image and likeness. Although colleges can't currently pay athletes for their NIL or for their labor, the NCAA has agreed to settle the House, Carter and Hubbard antitrust cases by accepting an arrangement that-if it’s granted final approval by U.S. District Judge Claudia Wilken and withstands potential legal challenges-would let colleges directly pay athletes for media rights, ticket sales, sponsorships and NIL in a salary-cap like model.

Meanwhile, Dartmouth College men's basketball players became unionized employees earlier this year, and in the coming months, other college athletes could gain that status. Bondi's successor as Florida AG, Ashley Moody, has also played an important role in shaping college sports legal controversies. Earlier this year Moody brought legal action against the ACC related to the conference's contractual dispute with Florida State.

Bondi would become attorney general with the Republicans in control of the White House and Congress, though with a narrow margin in the House of Representatives. In the pre-Trump and pre-Alston v. NCAA (2021) world, Republican control would have favored the NCAA's efforts to preserve amateurism. Republicans have long been associated with maintaining traditions, and the romanticized view of college sports and the student-athlete fit into that paradigm. Trump, however, has disrupted the Republican policy platform, including by adopting a more populist viewpoint.

Some of Trump's judicial appointments have disrupted college sports traditions, too.

U.S. Supreme Court Justice Brett Kavanaugh's concurring opinion in NCAA v. Alston eviscerated amateurism. It portrayed the NCAA and its member schools as a cartel that illegally deprives athletes of the fruits of their labor and the market value of colleges competing for them. U.S. District Judge Clifton Corker enunciated a similar viewpoint in granting a preliminary injunction against NCAA rules governing NIL collectives. The NCAA has lobbied Congress for an antitrust exemption, but there are sharp critics of the NCAA and more broadly of antitrust exemptions-which allow competing businesses to agree to not compete-on both sides of the aisle. It wouldn't be surprising to see Bondi asked about her perspective on college sports and the law during her confirmation hearing

Under Bondi's leadership, the Justice Department will bring antitrust cases, perhaps concerning NCAA rules and enforcement of those rules. At the end of Trump's first term, then-U.S. Assistant Attorney General Makan Delrahim, who led the DOJ's antitrust division, wrote a letter to the NCAA warning that restraints on athletes' ability to transfer schools and earn compensation from NIL could run afoul of antitrust law and might lead the Justice Department to challenge those restraints in court. The letter seemed to spook the NCAA, which had planned to announce NIL rules but instead (unsuccessfully) tried to convince Congress to pass a federal NIL law. It remains to be seen who will lead the DOJ's antitrust division in Trump's second term, but that person will work closely with the AG on antitrust enforcement.

The DOJ's approach to antitrust law in the pro sports and sports media spaces will also test Bondi. Under Attorney General Merrick Garland, the DOJ has urged federal courts to reconsider the scope of Major League's Baseball's antitrust exemption. Last year, the DOJ opined in an amicus brief that the exemption-created by the U.S. Supreme Court in 1922-should be scrutinized in a contemporary light. The DOJ stressed that "relevant market realities," such as TV deals and licensing contracts, have dramatically changed the economics of sports.

More recently, the Justice Department has urged the U.S. Court of Appeals for the Second Circuit to side with FuboTV in its antitrust case against sports-centric streaming platform Venu Sports, a joint venture of Walt Disney, ESPN, Fox, Warner Bros. Discovery and Hulu. That case will likely continue well into Trump's second term.

There are other, non-antitrust sports law issues that Trump's DOJ will confront. Trump has said he will ban transgender athletes from women's sports. Any move along those lines would trigger constitutional law and Title IX lawsuits that take years to play out in court. The AG will play an instrumental role in that litigation.

If confirmed as AG, Pam Bondi will have a lot on her plate. Most of it won't have much to do with sports, but don't be surprised to see the sports portion of the plate to massively impact the business of sports.