Managing antitrust risk for trade association members

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In an amicus brief filed in Relevent Sports, LLC v. Fédération Internationale de Football Ass’n, the Antitrust Division of the U.S. Department of Justice (the “Division”) reasserted its position that a trade association rule or policy governing how members compete is itself direct evidence of concerted action or an agreement that is subject to antitrust scrutiny under Section 1 of the Sherman Act. It is the view of the Division that mere participation in a trade association and adherence to its rules could be enough to establish an antitrust violation by the association’s members, regardless of whether the members voted for the rule, actively supported the rule, merely agreed to follow the rule, or even opposed the rule. Understanding the implications and risks associated with corporate participation in trade associations and other membership organizations has always been important, but it is even more so now, given the Division’s recent reminder of the potential consequences associated with such participation. When considering (or reconsidering) participation in an association, all bylaws, rules, and policies (even if only advisory) should be carefully reviewed for any directives that compromise the independent decision-making of the company.