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.        

THE SUPREMES: UNITED STATES SUPREME COURT, PRESENT AND FUTURE

The U.S. Supreme Court’s 2019-20 term has ended and the presidential election lies only about three months away. A link exists

between the Court’s work and presidential elections because nothing so symbolizes our divisive politics as control of the Court and the opportunity to shape its future.

Progressives viewed the term just completed with trepidation while conservatives had high hopes. The lineup of cases presented numerous opportunities for the conservative, Republican-appointed, majority to assert itself

on fractious issues. At the end, progressives breathed a sigh of relief and conservatives whined. One man – Chief Justice John Roberts – caused both reactions.

Chief Justice John Roberts

This is the Roberts Court

The spring of 2020 was an extraordinary time for Roberts. Besides presiding over the Trump impeachment trial, Roberts voted in

the majority in an astounding 97% of the cases the Court decided this term. Since the chief justice assigns writing the opinion in cases in which he votes in the majority, Roberts had total control of the Court’s voice. He wrote himself the decisions on the immigration case involving people brought to the United States as children that the administration might deport and the subpoena cases involving President Trump’s financial records. He strategically assigned other cases, like giving Trump appointee Neil Gorsuch the opinion in the case holding the sex discrimination provisions of the 1964 Civil Rights Act applicable to sexual orientation.

             

Roberts made clear he cares most about preserving the Court’s institutional reputation even if that overrides ideological and political interests. He sided with the Court’s liberals in a Louisiana abortion-rights case, even though he’d voted on the other side in a nearly-identical Texas case four years before. His position acknowledged the Court shouldn’t reverse a precedent so soon just because the lineup of justices changed. In the Trump subpoena cases, Roberts wrote for a 7-2 majority that no one, not even a president, is above the law.

When one justice exerts such overwhelming influence and does so in such a narrow way

on a court balanced on a knife’s edge on so many hot button issues, neither side can get comfortable. Conservatives railed about Roberts this term, claiming he abandoned the cause. One senator said he should resign. Liberals cheered his votes on immigration and abortion, but those votes rested on technical and procedural grounds, not philosophy. In subsequent cases on the same subjects with different facts or procedural circumstances, he could go the other way. 

The Future

With the election straight ahead, it’s fair to ask

where the Court goes from here. Two members of the liberal wing, Ruth Ginsburg and Steven Breyer, are over 80. The winner of the 2020 election will likely replace them. If Joe Biden

wins, his nominees wouldn’t “flip” the ideological balance. That would require the resignation or death of one of the five conservatives during Biden’s term. We can’t imagine any of them resigning and handing their seats to a Democratic president, barring a debilitating illness that made continuing in the job impossible. Of course, anyone can (1) die of a sudden, unexpected medical condition or (2) get run over by a bus. Nobody should expect either of those.

So, what would flip the Court? To make that a certainty, Democrats probably have to win the next four presidential elections. The ages of the current justices and the propensity most have for staying as long as possible while hoping a president of the same party as the president who appointed them can fill their seat, means most of the current membership of the court will remain in place 15-to-20 years or longer.

The two Trump appointees – Gorsuch and Brett Kavanaugh—are 52 and 55 respectively.

Neither will leave anytime soon. If they serve until the ages Ginsberg and Breyer are now, expect that the winner of the 2052 election would replace them.

The three other conservatives – Roberts, Samuel Alito, and Clarence Thomas – are

older, but not that old. Roberts, 65, could stay another 20 years, meaning the winner of the 2040 election might get to replace him. Thomas, the Court’s most rigid conservative, is 72 and has been the subject of retirement rumors he has denied. If Trump wins the 2020 election he might step down, but he won’t give Biden his seat if he can help it. Thomas could remain on the Court a long time, perhaps until after the 2036 election. Alito, 70, also could serve another 15 years if he wants to.

The two other liberals, Elena Kagan and Sonya Sotomayor, are 60 and 66,

respectively.  Changing the Court’s ideological makeup probably means a Democrat must win not only in 2020 but also in 2024, 2028, and 2032. That would probably assure that a Democrat replaces Kagan and Sotomayor and is positioned to replace a conservative who leaves during those years.

This analysis presumes neither party makes a “mistake” with a nominee – that no Democratic appointee lines up with the conservatives and no justice appointed by a Republican ends up voting mostly with liberals. We assume no Republican president will appoint a David Souter who so disappointed George H.W. Bush and his supporters. He, of course, also nominated Thomas, so conservatives really don’t have much reason for complaining about Bush 41.

Democrats have never made judicial appointments as important a part of their electoral calculus as Republicans. The reality of the situation with the Supremes now and in the future counsels a different approach.   

       

NO, YOU DON’T HAVE A CONSTITUTIONAL RIGHT TO A BAZOOKA

Students at Marjory Stoneman Douglas High School in Parkland, Florida grabbed the nation’s attention last week by taking their campaign for gun law reform to the state capitol in Tallahassee and to Washington.  Their anguished, yet reasoned cries for change followed the Valentine’s Day massacre of 17 people at the school by a 19-year-old former student who tipped off his intentions, yet still legally purchased the AR-15 assault rifle and high capacity magazines he used in the attack.  Well articulated arguments by the students, combined with obvious pain, made many in the pundit class say this protest felt different from others heard in the wake of mass shootings.

One thing was different.  In town hall meetings in Florida, the students and their supporters put politicians on the hot seat, most of them Republicans like Florida Senator Marco Rubio who accept money from the National Rifle Association and do its legislative bidding.  Protesters made clear they plan to stay active and will vote against those who don’t help them make guns harder to get.  Time will tell if they live up to that pledge but, for now, the students seemed to us to occupy both the moral and political high ground.

Basics

The student protests exposed fundamental misunderstandings many Americans hold about gun rights in this country.  The phrase “Second Amendment rights” gets tossed around in a way suggesting existence of an unfettered right of individual citizens to own any gun they want for any purpose.  It has become shorthand for everything the NRA wants – the main thing being that more guns represent the best solution to any gun problem. Even the current, rightward -leaning United States Supreme Court hasn’t gone that far.

Until the Supreme Court decided District of Columbia v. Heller in 2008 and McDonald v. City of Chicago in 2010, both by 5-4 margins, it wasn’t clear the Second Amendment, which states “[a] well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear

arms, shall not be infringed,” granted any right of individual gun ownership.  The amendment’s convoluted phrasing could mean individuals can own guns only in connection with military service or law enforcement.  Heller and McDonald rejected that idea, but did so in a way not consistent with the broad interpretations guns rights advocates throw around in public debate.

Those two cases established an individual right to keep and bear arms for what the court called “traditional” purposes like self-defense.  Local governments in Heller and McDonald enacted bans on handguns; the District of Columbia, in Heller, also required that owners of rifles and shot guns keep them unloaded and disabled in homes.  The Supreme Court concluded such restrictions excessively burden the right to keep guns for self-defense, a “traditional” purpose the founders had in mind in enacting the Second Amendment.  The court also said, however, it wasn’t approving unlimited gun rights.  Government could still prohibit concealed weapons, prevent mentally ill persons and felons from buying guns, and keep guns out of places like government buildings and airports. 

In murky language that didn’t affect the outcome in Heller (lawyers call such musings dicta), the court suggested, but did not decide, that government can regulate military weapons like machine guns.  Lower court cases since Heller, none of which the High Nine has taken up, seem to confirm the view that the judicial branch won’t let everyone have military-style guns.  Imposing limits, therefore, on automatic weapons and high capacity magazines wouldn’t trample anyone’s “Second Amendment rights.”

Only so far

Recently, the Supreme Court let stand a lower court ruling upholding California’s ten-day waiting period on gun purchases, even for people already legally owning guns.  The court’s refusal to hear the case drew a stinging retort from Justice Clarence Thomas, who wrote a 14 page dissent, complaining that “the Second Amendment is a disfavored right in this Court.”  He speculated that if California had infringed “favored rights” like abortion, speech, or search and seizure limits the court would have acted.  Leaving aside flaws we as lawyers might find in Justice Thomas’s legal reasoning, his complaints about the high court’s unwillingness to wade back into the Second Amendment debate indicates the court would defer to legislative limits on destructive weapons, permitting states and the federal government to take action on issues the Florida students have been pushing.

All of us have joked – though it’s really not a joking matter – that some people think they’re entitled to brandish a bazooka, or maybe even drive a tank to work, in exercising their “Second Amendment rights.”  The NRA has never, to our knowledge, recognized that the Second Amendment doesn’t go that far.  What it has done is always push the envelope in claiming broader, more expansive gun rights.  We assume gun rights stop somewhere, but the NRA never says where that is.  In the last week or so, the Florida students have been in the business of drawing the line on where gun rights stop.  Their line makes a lot more sense to us right now.  What do you think?