Wednesday, June 30, 2021

REQUIEM FOR THE NCAA: THE SUPREMES SPEAK ON COLLEGE ATHLETE COMPENSATION

College athletics as it’s been known in the
lifetime of every living American ended June 21, 2021. We acknowledge that’s a bold statement. As lawyers and sports fans, we’ll stand by it. The governing structure of college sports, as operated by the National Collegiate
Athletic Association (NCAA), will  change dramatically. The day all three of us have wanted, the day when college athletes receive some kind of pay, is in sight. That June 21 decision of the United States Supreme Court virtually guarantees it will happen. 

The subject matter of the case before the High Nine wasn’t remarkable. College athletes challenged limits the NCAA impose on educational benefits made available to collegiate players such as graduate and vocational scholarships. The case wasn’t

about  direct compensation for athletes. College players won’t get pay checks as a direct result of the court’s 9-0 holding that the NCAA rules at issue violate anti-trust law

Make no mistake though, college students will

get paid for playing sports. They will trace that compensation to the ruling in National Collegiate Athletic Association v. Alston.  After Alston, it’s just a matter of the details and the timing. What’s in the Court’s unanimous opinion, a stinging concurring opinion, and who wrote both likely sound the death knell for the NCAA as we know it.

 

Brothers and Sisters

We learned in law school judges on appellate courts often refer to other members of their court as “brother” or “sister” judges. In fact, Bob Woodward and Scott Armstrong wrote a 1979 book about the inner workings of the U.S.  Supreme Court titled The Brethren (there

were no women on the Court at the time). It’s a sign of respect and collegiality in places that breed division and intense disagreement. Indeed, we have a divided Supreme Court now, with six conservatives, appointed by Republican presidents, and three more progressive justices, appointed by Democrats.  If the NCAA thought that conservative tilt would work to its advantage in Alston, it found itself sorely disappointed.

The fact the decision went against the NCAA unanimously means a lot. Conservatives and
progressives saw this case the same way. Clarence Thomas, essentially a reactionary, and Sonya Sotomayor, perhaps the court’s most liberal
justice, both thought the NCAA’s aid limits violated anti-trust law and restrained trade.  They joined a tightly-reasoned, narrowly crafted opinion by their conservative brother, Neil
Gorsuch, that fell well within the mainstream of anti-trust jurisprudence. They rejected the NCAA’s contention that amateurism trumps laws against anti-competitive practices.

That reflects what’s going on in the country as a whole. State legislators and governors in both parties are approving measures that give college athletes the right to receive compensation for what’s called NIL – name, image, and likeness. The details vary in different states, but ultimately, the new laws all aim at giving athletes a way of getting paid for what they contribute in the sports marketplace.


Justice Kavanaugh’s Shot Across the NCAA’s Bow

From the NCAA’s perspective, the unanimous outcome against it in Alston was bad enough. Justice Brett Kavanaugh’s concurring opinion
amounted to a dagger in the NCAA’s heart. Kavanaugh, a Trump appointee, you’ll recall, made clear the NCAA should not expect a different legal approach if other cases involving more direct payments to athletes come before the Court. He wrote, “although the Court does not weigh in on the ultimate legality of the NCAA’s remaining compensation rules, the Court’s decision establishes how any such rules should be analyzed going forward.” 

That passage no doubt sent shivers down the backs of NCAA officials in Indianapolis. In
future  cases, the Court will apply what’s called “rule of reason” scrutiny to NCAA regulations. The Court will not give those rules more deference than it would give any other business accused of anti-competitive behavior.  The Court will define the relevant market, determine the effect of the rules at issue on competiveness in that market, and reject the rules unless the NCAA can provide “a legally valid procompetitive justification” for them. Kavanaugh expressed doubt the NCAA could supply such a justification.

If Justice Kavanaugh had left things there, the NCAA might have some optimism about future cases. But Kavanaugh said he believes the “NCAA’s business model would be flatly illegal in almost any other industry in America.”  He ended his opinion with another warning for the suits in the college sports hierarchy. “The NCAA is not above the law,” he wrote.


And it Means?

We think Justice Kavanaugh’s last flourish, coming on top of all else he said in the context of a unanimous decision, portends a death

sentence for the NCAA in its current form. No one knows how long it will take to get a case to the Court that directly challenges the NCAA’s basic don’t-pay-the-players rules. Gorsuch and Kavanaugh went to great pains in making clear those rules were not before the Court in Alston. The spate of NIL legislation making its way through the state legislatures may delay the reckoning. 
Still, the handwriting is on the wall. College
athletes will get paid for playing sports. As Kavanaugh noted, the industry will have to sort out things like differences in revenue and non-  revenue sports, Title IX compliance, and other details.
But the question now is how and when, not whether. What we know after Alston is that the Supreme Court, as constituted, isn’t buying the NCAA’s argument about the value of amateurism.  In some number of years, someone can say this isn’t your father’s college athletics.        


Thursday, June 24, 2021

BIDEN ABROAD: RESETTING AMERICAN FOREIGN POLICY

In our October 28, 2019, post one of us saw “repair[ing] our alliances around the world thereby protecting our national security in a way consistent with our values and those of our allies” as a major task of any Democrat elected president in 2020. We’ve consistently emphasized the importance of demonstrating America’s global leadership after the decline caused by the Trump administration’s

dysfunctional foreign policy.  With Joe Biden just back from his first foreign trip as president, now seems a good time for looking at 46’s progress on that task of restoring American preeminence in the world.

 

The Man and His Team

Biden arrived in the White House superbly

qualified for taking on foreign policy challenges. He served as chairman or ranking member of the Senate Foreign Relations Committee for 12 years. Foreign policy comprised a major part of his portfolio during his eight years as Barack Obama’s vice president. He’s on a first name basis with many foreign leaders.


Biden picked an experienced foreign policy team. State Secretary Antony Blinken had key foreign

policy jobs in both the Clinton and Obama administrations and served as Democratic staff director for the Senate Foreign Relations Committee. Defense
Secretary Lloyd Austin, a respected retired four star U.S. Army general, commanded troops in Iraq and led the U.S. Central Command. Jake Sullivan
served on President Obama’s staff and was Biden’s national security advisor as vice president. United Nations Ambassador Linda Thomas-Greenfield
worked for 35 years in the State Department.  If experience matters, Biden’s team passes the test.

 

To This Point

Despite raging domestic problems like the covid pandemic, its resulting economic dislocation, and

his agenda on infrastructure, climate, and racial justice, Biden moved quickly on some important foreign policy fronts:

·    Emphasizing alliances – Trump disdained NATO, ridiculed the joint defense aspects of the Atlantic alliance, and managed to have nearly all the major European leaders laughing at him in public at international meetings. Biden has pledged his backing for NATO, most importantly reaffirming the mutual security aspect of the NATO treaty that makes an attack on one NATO member an attack

on all. European leaders like England’s Boris Johnson, Germany’s Angela Merkel, and France’s Emmanuel Macron welcomed the new American president with open arms.

·    Resetting the relationship with Russia – Biden met with Russian President Vladimir Putin. Both said it wasn’t unpleasant or confrontational, but Biden clearly aimed to let Putin know he won’t find the same coziness and acquiescence he found with Donald Trump.        

·    International organizations and cooperation – Biden put the U.S. back in the Paris Climate Accords, stopped the American withdrawal from the World Health Organization, and returned the

United States to the U.N. Human Rights Council. Participation in these  organizations assures the U. S. a voice on major international issues and helps prevent other nations from taking actions that affect the U.S. when we’ve had no say.

·    Getting out of Afghanistan – Americans of all political persuasions want an end to our military

presence there. We went there in 2001 in the wake of the September 11 terrorist attacks. We spent $2 trillion. About 240,000 people lost their lives. The only real debate has been over timing of withdrawal. Trump pledged we’d get our remaining 2500 troops out by May 2021. Biden did a review of the situation and announced we’re leaving by September 11. Maybe it’s the right thing to do, maybe it’s not. It apparently will happen with the agreement of most Americans.

·   Fine tuning American policy – Biden has changed many of Trump’s policies, but not all of them. On

China, for example, Biden will  keep in place tariffs Trump imposed and continue diplomatic pressure on the Chinese over alleged atrocities committed against Uyghur Muslims.  In the Middle East, however, he’s resuming financial aid for the Palestinians that
Trump cut off. He’s reaffirmed American support for a two-state solution to the
Arab-Israeli conflict, a longstanding U.S. policy Trump essentially abandoned. Biden also ended American backing for the Saudi-led war in Yemen. 

·    Launching a global anti-corruption effort – The Biden administration’s first National Security Study Memorandum established fighting corruption as a core national security interest. The memorandum ordered that federal agencies prioritize efforts at confronting financial crimes. Cybercrimes and “strategic corruption” by foreign entities and governments will receive new attention.    

 

What it Means for Americans

Biden believes ordinary Americans have a stake in foreign policy beyond simple national security. “He’s always seen foreign policy as part of the overall interest process of our country,” says
former defense secretary and Republican  Senator Chuck Hagel, a long-time Biden friend.  “It’s something that is very much a part of who he is ….” International trade, the pandemic, and basic economic concerns motivate Biden. He sees a robust American role in the world as part of his effort to hold on to the working-class voters who helped him get elected. In that sense, Biden’s foreign and domestic policies are bound up with each other.

The G7 meeting and the face-to-face with Putin
represent steps in Biden’s early efforts at returning the U.S. to its premier place in the world. He’s been in office five months. Five  months will
neither undo all the damage Trump did nor accomplish Biden’s long-term objectives. He has made a promising start, and for that Americans can rest a bit easier.

Wednesday, June 16, 2021

BOOKS WE READ

 SOME SUMMER SUGGESTIONS

We’ve written before about our reading habits and preferences. What’s on a person’s

bookshelf can offer significant insight into that individual’s true nature. Reading informs what we write in this space. Books on public affairs, novels, and memoirs teach us what keen observers see in world events and expand our understanding of the human experience.

In this post, we recommend impactful books we’ve each read recently. Seeing what we read may also help readers better understand us.

Henry: A Mystery with Larger Consequences

I believe by reading we gain access to the lives of others and, perhaps, understand
ourselves  better.  If so, Say Nothing: A True Story of Murder and Memory in Northern Ireland by Patrick Radden Keefe confronts readers with difficult issues. Keefe presents Say Nothing as a mystery in search of answers after the abduction of a mother in Belfast which most laid at the feet of the Irish Republican Army.  However, the entire violent conflict known as The Troubles that consumed Northern Ireland between the 1960s and 1998 provides the backdrop.

Keefe offers up the conflict through the eyes of actual participants in this incredibly tragic loss of life. With access to the participants, many readers might find themselves appalled because no heroes deserving admiration seem to emerge. We see only humans caught up in a vicious conflict with no striking lessons for our species.
I began the book hoping I’d find answers about a conflict I’d read about for much of my life. I wanted explanations for what led ordinary people to engage in such acts of cruelty. Keefe writes the abduction mystery, around which much of the book centers, well and that story engages the reader throughout. If that were the book’s only focus, I could praise it and the writing without reservation.  But, the book leaves me with a greater mystery:  What roads to peace might have been taken without the price of so many lives?                                                  

                 

Rob: Reaching Back for a Consequential

Memoir

People usually talk about recently released books they’ve read or that they’ve finally read an old book they missed along the way, perhaps a literary classic. Sometimes, however, books get released we’d enjoy but never get to. That happened with me and 2011’s An Unquenchable  Thirst: Following

Mother Teresa in Search of Love, Service, and an Authentic Life by Mary Johnson. This memoir of a former nun in the Missionaries of Charity, the Calcutta, India based order led by the late Mother Teresa, explores the tension between the life people may believe they want in youth and the life they may grow into later.

Mary Johnson was an idealistic teenager desiring a life of service and dedication to faith. At 17, she saw a Time magazine cover

story on  Mother Teresa and latched on to the idea of joining the MCs. She realized that dream, living as Sister Donata for 20 years, mostly in New York, Washington, and Rome. Then, in 1997, the year of Mother Teresa’s death, she left the MCs and became Mary Johnson again

While I took some interest in her description of the upstairs/downstairs politics in the MCs, the book’s greatest contribution lies in showing how people grow and change. Mary Johnson took a chastity vow when she joined, but left having had sexual encounters of varying intensity with two other nuns and a priest. She realized the vows she took no longer fit the person she had become or wanted to become. She left the order, later married, and continued her service outside the church.  She described herself as an atheist. She became a different person. An Unquenchable Thirst reminds us life takes many twists and turns. Regardless of our certainty, change is always foreseeable.  


Woodson:   Property and Power over People

Social justice is my primary interest. No books

have given me the clarity for achieving social justice like Capital and  Ideology by world
renowned economist Thomas Piketty and Arguing with Zombies: Economics, Politics, and the Fight for a Better Future by nationally renowned American economist Paul Krugman.

Henry once told me he often reads multiple books simultaneously. My private reaction (which I didn’t share until now) was that only pointy-headed intellectuals would do that. Be careful not to judge others too quickly. Reading these two books at the same time

has been  gratifying. Before Henry says, “I told you so,” let me explain that both concern economics and politics, which could explain why the process can work.

Piketty writes from an historic and global perspective, discussing the late Middle Ages, the Early Modern, and Modern and Contemporary periods. He covers Russia, China, Iran, the United States, and         

numerous countries in Africa and Europe. He focuses on the sacralization of property and how it and money determine the choice of government as much as social movements. Piketty contends that if nations study the corrupting role of property and money in government, and build safeguards against their influence, nations can establish more egalitarian societies. 

Krugman writes about current day U.S. economics and politics and the governing ideologies of the two major political parties. Eerily, he seems to prove Piketty’s point: by ignoring the practices of past societies and their sacralization of property and giving moneyed interests disproportionate influence in our democracy, America now experiences greater inegalitarianism than ever before.

Both books are fun to read and enlightening for those who seek an understanding of how the United States might build a more just and egalitarian society.



Wednesday, June 9, 2021

DONALD TRUMP’S LEGAL TROUBLES: CLOSING IN?

In late May news broke that Manhattan District Attorney Cyrus Vance, Jr. had impaneled a special
grand jury in his investigation of former President Donald Trump’s business activities. Since then, it has become increasingly likely Trump and/or his top executives could soon face criminal indictments. Reporting
indicates prosecutors have several Trump confidants in their sights, including his main money man, Alan Weisselberg.  Reportedly, Vance has targeted tuition payments the Trump organization made for Weisselberg relatives as potential tax evasion.

On May 20, New York Attorney General Leticia
James announced her office would also  investigate Trump. A Vance-James combination could spell real trouble for Trump. She has a reputation for aggressively prosecuting political figures.  

The prospect of indictments against Trump’s closest business associates, and even the former president himself, raised the prospect of what a criminal trial of a former chief executive would look and feel like. That inspired differing responses from the three of us.

 

Woodson: Action and the Matter of Process

Throughout his presidency Trump demonstrated 

repeatedly that he aspired to be an autocrat.

Congress refused to act. 

                         

Losing the presidential election Trump incited an 

insurrection. Congress refused to act. 

Trump is a clear and present danger to democracy. But Republicans continue to follow him. It now appears that someone will act.

                                      
Donald Trump’s criminal misdeeds may finally undo him. Prosecutors in New York seem to think they have enough evidence to criminally indict and convict him. 

In prosecuting their cases, they must be careful  not
to deny Trump – or even appear to deny him - due process of law and the presumption of innocence until proven guilty.

Due process and the presumption of innocence  are
fundamental rules of law in our democracy. Trump 
and his supporters will surely holler “foul” at the slightest provocation. The criminal proceedings must be meticulous, solid, and above reproach.


The prosecutors must demonstrate that they believe in the rule of law and not violate it in their eagerness to secure a conviction. If Trump behaved in any way in his business life as he has in public life, there will be plenty of evidence with which to criminally convict.

The prosecutors might want to take a page out  of
the playbook of Jerry Blackwell and Steve Schleicher, prosecutors in the Derek Chauvin trial. Let meticulous preparation and the rule of law be the order of the day.

 

Henry: Smoke and Fire

How does the American justice system handle a criminal defendant with 70 million loyal followers

who believe everything he says? That’s  the key question for me in contemplating the criminal probe of the former president now proceeding in New York. Since Trump’s 2016 campaign began a plethora of potentially criminal allegations swirled
around him – possible tax evasion, corruption in his foundation, alleged payoffs to porn stars with whom he supposedly had affairs, and
more. The list grows through the reporting on the current criminal probe. With as much smoke wafting in the air, isn’t there fire in the vicinity?


Then there’s the matter of Trump’s associates. The names have become familiar – Michael Cohen, Paul Manafort, Roger Stone, Michael Flynn, et al.  All have incurred the wrath of the law because of things that involve Trump. Could the boss have been innocent in each and every one of their cases?  

But, Trump was president and that makes this situation unique. Yes, Richard Nixon had a collection of criminals around him, but Gerald Ford pardoned Nixon. He was never prosecuted for his crimes. Many of his associates went to jail, but Nixon went about his business.  Joe Biden certainly isn’t giving Trump a pardon, so the system must deal with him, with the backdrop of his widespread public support. That’s new for America.    

                       

Rob: A Meaningful Moment?

As much as my Democratic heart flutters at the

thought of Donald Trump in an orange jump suit and the Secret Service figuring out the logistics of protecting a former president in the Big House, that prospect isn’t what intrigues
me most about Trump’s legal troubles. Whatever possibility exists he might be called to account for the crimes he may have committed is one of the best things that could happen to the United States.

As a lawyer, I agree about letting the process play out, trusting in the rule of law, and all that business. Trump enjoys the same presumption of innocence as any criminal defendant.  Having said that, the country’s legal system would benefit from tangible evidence that the law applies to everyone. Trump

avoided indictment in connection with the Mueller probe into Russian interference in the 2016 election because of the Justice Department prohibition on prosecuting a sitting president. We were told Trump remained subject to the law once he left office. Now, apparently, we’ll find out if that’s really true. It would do the country good to know that it is.

Politically, Trump has caused all kinds of mischief since he left office. He controls congressional Republicans who have taken unfortunate actions at

his behest, like blocking a commission that would have investigated the January 6 insurrection. Trump recently claimed he’ll soon be “reinstated” into the presidency, a ludicrous proposition. If nothing else, criminal indictments should occupy Trump’s attention, leaving him less time for such nonsense. Our politics will benefit greatly from such a respite.