10 reasons the Clear Cooperation Policy poses an antitrust risk

I am pro-NAR, pro-Realtor, and unequivocally pro-MLS. My career has been built on the value these institutions bring. However, my fervent opposition lies with the Clear Cooperation Policy. This article outlines why I believe CCP is the next major lawsuit waiting to explode, threatening hundreds of millions of dollars in legal liability and a further erosion of credibility for the industry.

Here’s my case:

1. NAR is overstepping its bounds

NAR is a trade association, not a legal governing body. An agent’s primary fiduciary responsibility is defined by state real estate license law, not by NAR. When an association dictates how agents conduct business with clients, particularly by imposing substantial fines for non-compliance, it crosses a critical line.

The sacred relationship between a seller and their listing agent is governed by state law, and NAR’s interference in that fiduciary duty is legally tenuous. This overreach is precisely why the Department of Justice (DOJ) has long scrutinized NAR’s policies, often alleging anticompetitive practices, as evidenced by their continued investigation even after the recent commission lawsuits.

2. CCP violates antitrust principles by NAR’s own standards

Paradoxically, the NAR MLS Handbook itself states that associations “shall not enact or enforce any rule that restricts, limits, or interferes with participants in their relationship with each other in their broker and client relationships.” Yet, the CCP directly contravenes this principle.

By mandating that publicly marketed listings be entered into the MLS within 24 hours and penalizing those who don’t comply with fines, suspension, or even blacklisting from the MLS, the CCP creates a restrictive environment. This isn’t “cooperation.” It borders on cartel behavior. As detailed in the recent Burnett v. NAR lawsuit, which resulted in a massive settlement, the industry has already faced severe consequences for rules perceived as anti-competitive regarding commission structures. CCP, by its nature, creates similar concerns around market access and competition.

3. Forced participation and suppression of competition

The core of the CCP’s anti-competitive nature lies in its forced participation. By requiring all publicly marketed listings onto the MLS within 24 hours, the policy:

• Prevents competing listing platforms from gaining traction. This stifles innovation and the emergence of nationwide MLS alternatives or new tech platforms that could offer diverse solutions.
• Mandates that every listing must be shared, even if the homeowner explicitly desires a different marketing strategy.
• Penalizes agents who attempt to offer their clients alternative marketing plans or a different experience.

Consider this smoking gun: An agent attempting to comply with CCP by listing on a non-NAR affiliated nationwide MLS like MyStateMLS.com would still be in violation. This clearly demonstrates that CCP is not about broad cooperation, transparency, or consumer benefit; it is about control and monopolization. This is textbook market restraint, an issue that the DOJ has consistently raised regarding NAR’s rules and policies.

4. Restricts seller choice

Homeowners should possess the inherent right to choose how and where their home is marketed. Whether they prefer a quiet, discreet approach, want to test the market privately, or trust their agent to handle it confidentially, CCP strips away this fundamental choice. It’s not pro-consumer; it’s anti-choice.

The argument from some pro-CCP advocates that sellers can always opt for an “open listing” (essentially a For Sale By Owner, or FSBO) if they desire choice is disingenuous. No professional agent advises a client to pursue an open listing where they would be left without protection or commitment. This rebuttal ironically suggests that NAR encourages FSBOs in order to maintain the illusion of choice, which is not a real option for most sellers nor in the best interest of a professional real estate transaction.

5. CCP creates less market openness

The claim that CCP “increases transparency” is demonstrably false and counterproductive. Before CCP, firms like Compass allowed “coming soon” listings to be openly visible. The CCP has inadvertently pushed these pre-market activities underground, forcing agents to pursue private “in-office” showings without public promotion to avoid penalties. This results in fewer eyes seeing the property, potentially making it easier for brokers to steer properties to preferred buyers and actually creating pocket listings, rather than preventing them. Less public advertising means less transparency, not more.

6. The fair housing excuse is a smokescreen

Some proponents argue that CCP prevents discrimination and aids fair housing. However, major homebuilders have sold millions of homes off-MLS for decades without incurring fair housing lawsuits. This is because fair housing is fundamentally about how you treat buyers, not where you market a listing. Forcing listings onto a single platform doesn’t magically eliminate discriminatory practices. This talking point from pro-CCP advocates is a distraction from the core issue and lacks logical coherence.

7. CCP enables fines, blacklisting, and bully tactics

The enforcement mechanisms of CCP are exceptionally punitive. Breaking the rule can result in fines up to $15,000 per violation and even the complete shutdown of an entire office’s MLS access due to one agent’s conduct. No other major professional association in America levies such massive financial penalties on its members. While these professions may suspend or expel members for egregious violations, they do not impose thousands of dollars in fines. This disproportionate enforcement highlights the control element within CCP, and has been a point of contention in various legal challenges to NAR’s disciplinary powers.

8. Data control and money are the underlying motivations

The true drivers behind CCP appear to be control and revenue. NAR and the MLS gain free access to listing data, which they then monetize by selling it to various third parties, including tech companies and mortgage firms. Agents, who originate these listings and often bear the cost of marketing materials, see none of this revenue. Furthermore, listing agents are often prohibited from including their contact information on their own listing photos within the MLS, while the MLS itself can sell ad space to other service providers on those very same listings.

9. Homebuilders, tech giants, and even Zillow get a pass

The double standards surrounding CCP are glaring. Homebuilders can sell entire subdivisions off-MLS without issue. Tech giants like Zillow, an NAR member and brokerage, acquired and sold hundreds of thousands of homes as an iBuyer, actively encouraging sellers to bypass the MLS entirely. Yet, these entities are often presented as “consumer-friendly” while agents are policed for similar practices. Zillow’s own new rules, which permit agents to list on Zillow without MLS submission within 24 hours (avoiding a Zillow ban), further underscore this hypocrisy. Why is NAR not fining Zillow for violating the CCP? This apparent inconsistency mirrors the DOJ’s ongoing concerns about fair competition in the real estate market. It’s no surprise that Howard Hanna Real Estate Services has also publicly challenged the CCP, demonstrating that this isn’t an isolated complaint.

10. A distraction from monopolistic control

Ultimately, the attacks on companies like Compass, or the framing of this debate as simply about sharing, are distractions from the true problem. The real estate industry is being forced into a one-size-fits-all, anti-competitive framework that harms consumer choice and, I contend, violates antitrust law. As Sun Tzu observed, “The secret lies in confusing the enemy, so that he cannot fathom our real intent.” The real intent here, it seems, is maintaining monopolistic control.

If your business prioritizes client service, license protection, and operating within the bounds of state license law, then the antitrust implications of CCP should deeply concern you. This isn’t just a legal battle; it’s about reclaiming our industry, safeguarding client choice, and ensuring that agents, not a trade group, are the ultimate decision-makers for the people they serve.

Let’s keep this vital conversation alive. Stay engaged, stay informed, and never forget who you are truly working for.

Darryl Davis, CSP, has spoken to, trained, and coached more than 600,000 real estate professionals around the globe. He is a bestselling author for McGraw-Hill Publishing, and his book, How to Become a Power Agent in Real Estate, tops Amazon’s charts for most sold book to real estate agents.

This column does not necessarily reflect the opinion of HousingWire’s editorial department and its owners.

To contact the editor responsible for this piece: tracey@hwmedia.com