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.   

       

The List: A Critique of Trump's Proposed Presidential Agenda

Donald Trump took the oath of office last week as the 45^th President of the United States amid pomp and circumstance, celebration by part of America, but trepidation, foreboding, protest, and fear by other parts.  His 40% approval rating represents the lowest ever for a new President, so Trump has his work cut out for him.  We won’t say we wish him well because, frankly, such a platitude from us seems meaningless and insincere given our attitude toward some things Trump has said he wants to do, like dismantling the Affordable Care Act, banning Muslims, giving new tax breaks to billionaires, and getting into bed with Vladimir Putin and the Russians. As patriotic Americans who deeply love this nation, we’ll just say we wish the country well and leave it at that.

A number of thorny issues fill Trump’s plate for the foreseeable future.  Some he put there himself in his zeal, and that of his fellow Republicans, to undo the policies of the previous administration.  Others he campaigned on, meaning the electorate will judge him on how he does with them. Some are there because they’re there for every President. We can think of dozens of things Trump needs to deal with, but we’ll hone in on seven that will likely move front and center during the early weeks and months of his tenure. Most have a domestic tilt, a few fall within the international realm, and some overlap.  All this presupposes Trump doesn’t face an early, unexpected foreign policy crisis or a domestic trauma we can’t now predict. 

Affordable Care Act Repeal   Republicans moved at warp speed in the early days of the current session of Congress to repeal the ACA. What they’re going to replace it with remains a major mystery. People who understand this issue know one thing: keeping the “goodies” in the ACA that even Republicans like, such as coverage for pre-existing conditions and letting young people stay on their parents’ policies until they’re 26, seems exceedingly difficult without the taxes and mandates the GOP hates.

Infrastructure/Jobs   Trump’s promise to bring jobs back to the rust belt may have won him the election. Can he now deliver? During the campaign, he talked about a major infrastructure program to create jobs by rebuilding roads, bridges, airports, water systems, and other public works.  Passing a major infrastructure bill, especially one that puts significant federal dollars, and not just tax credits, into play probably requires Democratic votes in Congress since Republicans usually detest such programs.  Will Trump propose something with real meat that Democrats could vote for? Or will he take the path of least resistance and offer up a tax credit scheme Republicans will support, produces profits for Trump’s wealthy corporate friends, but yields few improvements in the nation’s crumbling infrastructure and even fewer jobs.  

Russian Hacking/Intelligence   The new President will have a hard call once Congressional committees finish their review of the intelligence community’s conclusion that Russia attempted to swing the 2016 election to him through computer hacking of his political opponents. Does he ignore a clear attack on American sovereignty and democracy? Does he reverse course and move to punish the Russians as his predecessor did? Can he repair his relationship with the intelligence agencies?  The questions bear on U.S. national security and our concept of the nation.

Supreme Court   Trump said he’d put up a nominee for the Scalia seat that’s been vacant almost a year about two weeks after he takes office. Does he propose a moderate conservative at least some Democrats could vote for or does he put up a right wing zealot, thereby inviting a bruising Senate confirmation battle? Which way he goes may signal something important about how he plans to govern.

Syria/Middle East   Trump never really said during the campaign what he thought about Syria except that it was a “disaster” and he offered vague, almost incoherent ramblings about Assad and the Russians being better for Syria than ISIS. Does Trump have a Syria policy or doesn’t he?  Maybe we’ll find out soon.

Immigration   Will Trump follow through on three promises he made (at least at times he seemed to promise them) during the campaign: (1) banning Muslims from entering the United States; (2) starting mass deportation of undocumented persons in the country illegally; and (3) building a wall between the U. S. and Mexico that would keep out illegal immigrants.  These ideas have legislative and legal components and Trump may not have the last word on them. 

Criminal Justice Reform   Trump didn’t campaign on this issue and it isn’t a high priority for his core supporters. Many of them, in fact, may oppose efforts to reduce incarceration levels and eliminate race based sentencing disparities. His business allies probably like it that private prison companies reap more and more tax dollars from warehousing inmates.  Communities of color, however, care passionately about this, and that concern presents a potential political opportunity for Trump.  He won’t ever get the lion’s share of black and Latino votes, but he could score major points with those groups, and some moderate to progressive whites, by going against type and taking on an issue outside his natural wheelhouse. It would resemble Richard Nixon, the unrepentant cold warrior, visiting China.

Trump and the country, of course, have things other than these seven issues to worry about, including the President’s business conflicts, ISIS, trade policy, voting rights, and many others.  But these seven issues represent headaches and opportunities. Minefields, and a few safe harbors, lie within this constellation.   Your ideas?

       

  

       

Blacks Have Plenty to Lose with Donald Trump

Republican presidential nominee Donald Trump has asked African-Americans what they have to lose by voting for him instead of giving Hillary Clinton the overwhelming support Democratic nominees typically receive from black voters. Many in the pundit class believe Trump isn’t serious about courting blacks, but that he really seeks to convince suburban whites, especially women, he’s not a racist, making them more comfortable with voting for him.  The fact that Trump has made this so-called outreach to minority voters before virtually all white audiences lends credence to that conclusion.  Whatever Trump’s objective, we’d like to respond to his question because we believe the answer is “A lot!”

In the broadest sense, the way in which Trump frames the question raises the most troublesome risk to the black community of a Trump presidency. Trump “otherizes” blacks by failing to question the failures of past government and private sector polices that created the problems that afflict some African-Americans.  Trump has nothing to say about the role of past discrimination in jobs, employment, housing, and education in causing the maladies he now so readily lays at the feet of black Americans.  By spewing his parade of horribles (shootings, failing schools, high youth unemployment), without acknowledging the historical, discriminatory underpinnings of the problems, Trump allows the listener to conclude that blacks caused these problems themselves. Trump does nothing to promote the idea of shared responsibility in and among an enlightened, compassionate society whose members commit to working together to solve problems that affect the entire American family.

Trump’s question also reveals a disturbing ignorance about the nature of black America.  He fails to recognize it as diverse and complex, instead thinking and speaking of it as a monolithic community in which everyone has the same problems, flowing from some common sore, and in need of a savior who can cure all its ills. Beyond Trump’s ignorance of the nuance in the black American experience also lies a crass inhumanity that should sicken all Americans.  He revealed this with his tweet after the shooting death of NyKea Aldridge, the cousin of basketball star Dwyane Wade, in which he sought to use that tragedy to troll for black votes. Only his most myopic supporters should now fail to see his debilitating flaws.         

At a policy level, we see at least three major detriments to black political, economic, legal, and social progress resulting from a Trump presidency (there are more, but limits on time and space counsel leaving it at that for the moment). These three specific policy areas go to the heart of the agenda that has fueled the gains blacks have made in America during the last 75 or so years – legal protections though the courts, better job opportunities, and a fairer shake in the criminal justice system.  Trump’s policy proposals, skimpy and ambiguous as they are, could turn back the clock on that progress.

Legal Protections.  Trump has offered a list of prospective United States Supreme Court nominees that reads like a who’s who of conservative legal thinkers.  While we can’t know the racial attitudes of these prospective nominees, we do know that Trump advertises them as worthy heirs of the late Antonin Scalia. Scalia’s hostility to civil rights does not require repeating here; his comment at an oral argument about blacks and “slower schools” suffices to demonstrate his views. Then, there were his written opinions and votes in employment discrimination litigation, affirmative action cases, and on voting rights.  If Scalia represents Trump’s model for judicial nominees, leave us out right now. A Trump dominated Supreme Court could threaten roll back of many precious legal rights won through court fights and legislative battles.

The judiciary hardly constitutes the only legal danger zone for blacks in a Trump administration. Does anyone believe a Trump Justice Department would aggressively support civil rights enforcement?  While the Obama Justice Department has frequently sided with civil rights plaintiffs in discrimination and voting rights cases, Trump’s business history, which includes suits against him for race discrimination in housing, suggests his Justice Department would much more readily side with corporate and business interests.

Tax Policy.  Given Trump’s frequent missteps on the campaign trail, his actual policy proposals have received scant attention. That’s unfortunate,   because his August 8 speech in Detroit laid out tax ideas blacks interested in a robust federal response to the nation’s inner city problems should find troubling. Trump proposed tax cuts, most of which would benefit business and the wealthy, that would dramatically decrease federal revenue.  Many experts aren’t willing yet to say exactly how much he’d cost the federal treasury because Trump has given so few specifics.  His first plan might have increased the deficit by 10 billion dollars over a decade; the current plan would do less damage, but we don’t know how much yet.   Whatever one might conclude about the ability of his proposal to promote long-term economic growth, the short term increase in the federal deficit would make unlikely new programs that create inner city jobs.  As important, Trump’s tax policies would make more difficult following through on his pledge to improve infrastructure, thereby creating hundreds of thousands of construction jobs, many of which presumably would go to black workers.  Trump can promise to repair bridges and roads and build airports all he wants, but doing so requires money. With his tax cuts, Trump can’t fund those infrastructure improvements. We aren’t going to have a massive increase in infrastructure spending without sufficient federal tax revenue or lots of deficit-increasing borrowing that ultimately produces inflation and starves capital markets, limiting economic growth.

Criminal Justice.  Trump has taken to attacking Hillary Clinton for her husband’s criminal justice program that everyone now admits resulted in over incarcerating black men. Both Clintons have acknowledged the unintended consequences of that legislation and Hillary Clinton herself began her campaign with a speech proposing changes. Trump’s current attacks on that issue make little sense in light of his acceptance speech casting himself as the “law and order” candidate. Again, Trump hasn’t been specific about what that means, but history indicates it’s unlikely to bode well for black relations with law enforcement. Trump’s rhetoric suggests he wants to give police more discretion in encounters with community members, not less, and that his “support” for law enforcement would likely translate into increased tension between police and the black community.  Blacks have every reason for wariness about Trump’s “law and order” plans, whatever they are.

We could go on, but we’ve made the point.  A Trump presidency will not benefit African-Americans. It’s likely, in fact, to do significant harm. Trump should stop asking the question about what blacks have to lose by voting for him. The answer does not help his cause. 

Do you agree with our answers?  Do you have different answers? Let us know!