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: [email protected]