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.        

JOE MANCHIN: POWER BROKER OR JUST A PAIN?

Pundits increasingly describe West

Virginia Senator Joe Manchin as the second most powerful Democrat in the country or as a royal pain. Maybe he’s both. That’s what makes taking a hard look at the 73 - year old third term senator and former governor of the Mountain state worthwhile. Manchin now plays a huge role in every political calculation in Washington and he’s apparently enjoying it.

With Democratic control of the

senate hanging by a thread, Manchin’s made his mark. He blocked President Joe Biden’s nomination of Neera Tanden as budget director and kept the $15.00 minimum

wage out of stimulus legislation. He opposes D.C. statehood, objects to universal background checks on gun purchases, and apparently won’t back eliminating the senate filibuster.

Manchin isn’t on board with the size of Biden’s $2 trillion infrastructure bill. He says he wants a bipartisan infrastructure deal that doesn’t “abandon” Republicans.

So, we ask: what’s up with Manchin. We look at the same facts, but see different things:

                  

Woodson: A Democrat in 

Republican Appearance? 

Understanding Manchin requires understanding West Virginia. The state is 92 percent white, four percent black, 0.997 percent Hispanic, and 0.737 percent Asian. It’s wracked by poverty, addiction, and low household incomes. Richard Ojeda, a West Virginia politician says the choices for high school graduates are, “dig coal, sell dope, or join the Army.”

Until 2005, the West Virginia Senate was 21-13 Democrat. Its House was 72-28 Democrat.  In 2014 West Virginia’s House turned Republican for the first time in 83 years. The state elected its first GOP U.S. Senator in 60 years and sent a totally Republican House to Washington for the first time in 60 years. Donald Trump trounced Hillary Clinton by 42 points in 2016 and Biden by 39 in 2020.

Manchin, nonetheless, has maintained his senate seat since 2012. Until Biden’s election, Manchin was relatively insignificant. Now holding a decisive vote, he has become significant. Conservative votes increase his re-election prospects. He is not beholden to Democrats. They need him more than he needs them. He might be the only Democrat capable of holding that seat.

West Virginian Christopher Reagan, Jr. recently wrote in the Atlantic that “Manchin does not have an overarching ideology.”  True? Perhaps Manchin votes conservatively with political calculation. He voted to confirm more than 100 of Trump’s nominees. None required his vote. He voted for Brett Kavanaugh’s Supreme Court nomination after it became clear Republicans had enough votes for confirmation.

Manchin voted to save Obama Care,saying Medicaid expansion was good for West Virginia. While he made sure top income earners were excluded from Biden’s stimulus package, he voted ‘yes.’  He agrees that if Republicans won’t support an infrastructure package Biden will have to proceed without them.

Will Manchin become a Republican? He’s not fond of GOP leader Mitch McConnell who vowed he’d “crush Manchin like a grape” in the 2018 midterms. After his three-point victory, Manchin delivered a jar of hand crushed grape jelly to McConnell’s office.

Manchin said of Biden in The Hill, “I

think he’s a good human being, just a good heart and a good soul, and he’s the right person at the right time for America.”

Manchin may not be an ideologue. But, he’s a Democrat in a state where Democrats are an endangered species.  

           

Henry: Mixed Motives?

It seems Manchin has different values

and goals than his fellow Democratic senators. Other Democrats may share some of his ideas, but they don’t act on them with the force and determination he exhibits. Whether his behavior represents political expediency, principle, or the enjoyment of personal political power, he walks a tightrope.   

The turn in his West Virginia constituency away from its Democratic roots likely explains some of his actions. Manchin can win in his state, but he’s not so popular he can deviate far from the views of white West Virginians. If he seeks another term in 2024, he’ll find

himself on the ballot with a strong Republican candidate atop the ticket. His political position offers little margin for error, so the last thing he needs is being on record in support of things the West Virginia electorate would find objectionable.

But home state political considerations

may not totally explain Manchin. Perhaps he believes in what he espouses, even if he’s not an ideologue. Beyond that, Manchin occupies a unique position in the American government. He has some control over the nation’s agenda. That he can use that control in service of his own political survival could mix with principle and the hubris all political figures experience when other people must come to them for things they want. Maybe all of that is going on with Joe Manchin.            

 

Rob: All About West Virginia

As much as any state, West Virginia symbolizes the changing appeals of America’s two parties. West Virginia

was solidly Democratic when the party’s fundamental appeal was economic populism aimed at white, working class voters. West Virginia has many more coal miners, factory employees, and construction workers than tech types, suburban professionals, and financial industry workers, now the backbone of the Democratic coalition in blue states. Add that to the dearth of voters of color and it’s no wonder West Virginia votes as it does in presidential elections. So, Manchin must represent this constituency while being part of a national party that wants a more progressive nation.  

Culture plays a huge role in this. When the Democratic Party became the party of protecting reproductive freedom, promoting LGBQT rights, and supporting gun safety measures, West Virginia’s white voters fled. Those issues drive the margins Republicans rolled up in recent presidential elections. Manchin knows where the voters are in his state and he’s not risking getting on the wrong side of them, economically or culturally.

A VERY CLEAR AND VERY PRESENT DANGER: Is Donald Trump a Fascist?

Bad things are happening in the world right now.  Americans wake up every day more concerned than the day before about preserving democratic institutions and the country’s dedication to the rule of law. Daily news reporting brings word of new attacks on Special Counsel Robert Mueller’s investigation into Russian interference of the 2016 Presidential election.  Assaults continue on the courts and the very idea of an independent judiciary.  The President’s lawyer says the chief executive can’t obstruct justice, could pardon even himself, and suggests he doesn’t have to respond to a subpoena for his testimony. This is the United States of America?

As if all that weren’t enough, images flood the media of children being torn apart from their parents and hustled off to

detention center cages.  Those children suffer that terror because their parents dared come to the United States seeking refuge from unspeakable violence and abuse in their home countries.  The picture suggests a modification of the inscription on the Statute of Liberty from:

“Give me your tired, your poor,

Your huddled mases yearning to breathe free,

The wretched refuse of your teeming shore.

Send these, the homeless, tempest-tossed to me,

I lift my lamp beside the golden door!”

To:

“We dare you give me your tired, your poor,

Your huddled mases yearning to breathe free,

Send these, the homeless, tempest-tossed to me,

And we will make you wish you never had,

I lift my lamp besides the golden door, so that ICE can see to apprehend you!”

Polls say a majority of Americans recoil at this picture of their

country.  Indeed, the pushback grows daily, as last week’s nationwide protests of President Trump’s immigration policies demonstrates.  Unfortunately, what we’ve witnessed in the Russia investigation and at the southwestern border, symbolize something larger and more dangerous.  That something is FASCISM and it is a worldwide threat. 

Madam Secretary

Madeleine Albright served America as United Nations

Ambassador, then as Secretary of State.  She’s now a professor at Georgetown University, teaching graduate students the ins and outs of diplomacy and world affairs.  To see how her seminars work , read her wonderful new book Fascism: A Warning.  The book takes on so much significance now because it clearly and succinctly lays out, in historical and contemporary terms, the danger the world faces from the fascist threat brewing around the globe.  Yes, that includes the United States. 

Secretary Albright understands fascism first hand, having fled Nazi occupation of her native Czechoslovakia as a child.  She followed in her father’s academic and diplomatic footsteps and became a major player in world affairs, culminating in her service as Bill Clinton’s Secretary of State between 1997 and 2001.  Ministers around the world she knew and still confers with are sometimes called “Madeleine’s Exes.” She knows of what she speaks.

What’s Fascism?

The Secretary defines a fascist as “someone who claims to speak for a whole nation or group, is utterly unconcerned with the rights of others, and is willing to use violence and whatever other means are necessary to achieve the goals he or she might have.”  This definition covers a wide swath of potentially abhorrent political behavior and governmental mischief.  By showing how fascists have operated in history and what they’re doing today, Secretary Albright makes clear just how much danger the world now faces.  From Turkey to North Korea to Venezuela, the book traces how today’s would-be fascists mimic the classic fascists of history, like Italy’s Benito Mussolini and Nazi Germany’s Adolf Hitler.

The book makes clear most fascists, both historically and those currently on the rise, first come to power through elections.  This book will disabuse readers of the notion fascists always take power through military coups or armed rebellion.  That happens from time to time, but it’s the exception, not the rule, and has been in history.  Hitler, for example, got his nose under the tent as his party, through electoral success and coalitions, gained control of Germany’s parliament in 1933.  The fascist - looking leaders who’ve worked their way to greater and greater power in recent years - Recep Tayyip Erdogan in Turkey, the late Hugo Chavez in Venezuela, Viktor Orban in Hungary -- all won elections of some kind.  Once in office, they solidified control by eroding democratic institutions, taking advantage of nativist instincts in their populations, or exploiting economic dislocations enabling concentration of executive power.  They co-opted the courts by appointing cronies (or ideological soul mates).  The legislative branches rubber stamped their programs.  They silenced criticism from the media.

Trump’s Playbook

Capitulation to the executive by legislators, appeals to nativism, and attacks on democratic institutions, including the media, characterize the first 18 months of Trump’s tenure.  Secretary Albright writes of the 45^th President, “Trump’s view of the United States is dark.  Among his favorite mantras are that U.S. courts are biased, the FBI is corrupt, the press almost always lies, and elections are rigged.  The domestic impact of these condemnations is to demoralize and divide.”  As Secretary Albright contends, Trump’s actions resemble those of the authoritarian figures, like Russia’s Vladimir Putin, he so admires.

Trump’s opportunity to replace semi-moderate Supreme Court Justice Anthony Kennedy  first drew alarm because the court vacancy means Trump could appoint someone to the Supreme Court who would dangerously expand executive power and appoint someone who will vote to overturn Roe v. Wade and make abortion illegal in many American states.  His choice of appellate judge Brett Kavanaugh has inflamed, not calmed

those fears. Now, Democrats are sounding the alarm because a fifth vote for the conservative block on the Supreme Court might serve as Trump’s get-out-of-jail-free card in connection with the Russia investigation.  That’s the kind of fascist action really at stake in the coming battle over a Supreme Court nominee and the kind that lurks in the pages of Secretary Albright’s essential book.