USA Trends and Developments Contributed by: Peter Mucchetti, Sharis Pozen, Brian Concklin and Michael Van Arsdall, Clifford Chance US
NCAA , Case No 4:20-cv-3919). The settlement places a roster cap, reducing athletic opportunities for walk- ons and partial-scholarship athletes. This restriction raises concerns of a horizontal agreement in violation of the Sherman Act by restraining competition in the college athlete labour market. Furthermore, the settle - ment does not resolve several legal issues – such as whether athletes qualify as “employees” under labour laws, which could trigger collective bargaining obliga - tions for schools. It also fails to address how NIL pay - ments might affect international athletes, whose visas strictly prohibit them from engaging in unauthorised employment. NIL payments could risk visa revocation, deportation or denial of re-entry. Finally, it is unclear whether the settlement bans or even regulates boost - er-funded collectives, which now play a major role in recruiting and retaining talent by offering lucrative NIL packages to athletes. In July 2025, President Trump signed an Executive Order on Saving College Sports. The Order calls for: • college athletic departments with revenue of more than USD125 million in the 2024–2025 athletic sea - son to increase scholarships and offer the maxi - mum allowed roster spots in non-revenue sports; • college athletic departments with revenue of more than USD50 million to maintain their current schol - arship levels and to also provide the maximum roster spots; and • college athletic departments with USD50 million or less in revenue, or without revenue-generating sports, to not disproportionately cut scholarships or roster spots based on a sport’s revenue. The Order also calls for a ban on third-party pay-for- play schemes, setting guidelines for fair revenue-shar - ing, and directing federal agencies to clarify student- athlete status. Price Discrimination Under the Robinson-Patman Act FTC v Southern Glazer’s Wine and Spirits In December 2024, the FTC filed a complaint against Southern Glazer, the largest US wine and spirits dis - tributor. The case was the FTC’s first price-discrim - ination case in over two decades, and alleged that Southern Glazer violated the Robinson-Patman Act
by offering better terms, discounts and promotional payments to large retail chains while charging small, independent retailers up to 67% more for the same products. The FTC argued that this conduct harms competition by making it harder for small retailers to compete, which ultimately reduces consumer choice and increases prices. In April 2025, US District Judge Fred Slaughter denied Southern Glazer’s motion to dismiss, finding that the FTC sufficiently alleged all four elements required for a “secondary-line” price discrimination claim under the Robinson-Patman Act. Despite winning the motion to dismiss, FTC Chair Ferguson may still seek to dismiss the case, which he called “an imprudent use of the Commission’s enforcement resources”. FTC v PepsiCo In January 2025, the FTC voted to file a complaint against PepsiCo alleging that it gave preferential treat - ment to a favoured big-box retailer by offering pro - motional allowances and financial incentives, which disadvantaged smaller competitors and inflated con - sumer prices. Republican commissioners dissented, saying that the suit was unlikely to succeed and would be a poor use of the FTC’s resources. In May 2025, the Republican commissioners voted 3–0 to dismiss this suit without prejudice, stating that the FTC should pro - tect consumers through credible enforcement actions, not act based on “a hunch”. Though the FTC did not provide detailed reasons for its dismissal, it raises questions about the viability of renewed Robinson- Patman Act enforcement by the agencies. Private plaintiffs, however, may still pursue Robinson-Patman Act enforcement. Information Sharing and Algorithmic Collusion United States v RealPage The DOJ and the FTC are increasingly investigating possible “algorithmic collusion”, where competitors allegedly use sophisticated algorithms to exchange non-public competitively sensitive information, ulti - mately facilitating price co-ordination. In August 2024, following consolidation of private cases into multi- district litigation, the DOJ and several states brought an antitrust case against RealPage in the US District Court for the Middle District of North Carolina. The complaint alleged violations of Sections 1 and 2 of
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