Artificial intelligence (AI) has become an integral part of our daily life and has already reshaped competition dynamics, prompting renewed debate within the antitrust community. Grounds for reconsideration include a disruption of antitrust fundamental principles, such as its consumer welfare goal, and possibly leaving room for alternative forms of regulation. Surprisingly, the scholarly conversation lacks a clear definition of AI. This Article fills this void by examining AI’s goals and scope during key historical moments. It defines intelligence in AI to assess whether contemporary AI might be capable of undermining antitrust pillars and a change of antitrust core values is required. This Article makes two important contributions to contemporary literature: First, it lays out a comprehensive historical framework of the meaning of AI and its intelligence property. Second, it applies this framework to the current antitrust debate. AI will not disrupt antitrust pillars. However, AI will require adapting antitrust core values to a changed technological framework.
The Big Ten and SEC NIL form contracts pose new antitrust concerns for athletes. This Article develops a blueprint for athletes to sue under the Sherman Act to protect them from misappropriation, misrepresentation, and falsification of their NIL under the Lanham Act; illegal antitrust immunity; and unjust enrichment. Schools and conferences act as PROs— publicity rights organizations— by purchasing, licensing, and selling athlete NIL rights. My antitrust analysis compares the Big Ten and SEC to BMI, Inc., a music industry marketer used by composers and performers to sell copyrighted music to radio and TV broadcasters. BMI, Inc. avoids antitrust liability by contracting for music rights with ASCAP, a group formed by music creators. In contrast, the Big Ten and SEC NIL contracts do not involve an entity that represents athletes. The contracts eliminate competition between schools for purchasing and marketing NIL rights. College athletes are barred by contract from receiving continuing royalties, unlike music creators who license their work through ASCAP and sell licenses through BMI, Inc. This is horizontal price fixing, removing competition in the NIL marketplace between schools, because NIL contracts uniformly set royalties at $0. Big Ten and SEC price fixing prevents competition between School A, which could offer $1 million in a one-time NIL payment while avoiding any royalty payments, and School B, which could offer $900,000 in an NIL payment with a guarantee to pay the athlete 20% of net-profit royalties in perpetuity on sales of his NIL (e.g., jersey with his number and name).
