Category Archives: See You In Court

Alston goes to the Supremes.

If the NCAA felt good about its chances of having the Ninth Circuit’s ruling in Alston overturned — after all, it’s not a stretch to assume the SCOTUS wasn’t taking the appeal simply to pat the 9C on the back for a good job — it probably doesn’t feel that way after the line of hostile questioning its side took yesterday.

In many respects, the justices hammered the NCAA. They pried into the organization’s amateurism policy, criticizing a model that allows coaches, administrators and executives to make millions while “the workers,” says one justice, go unpaid. Several justices questioned the merits of the NCAA’s grievances, referring to them merely as “complaints” that shouldn’t be before the court in the first place. After all, asked Justice Brett Kavanaugh, what’s an extra $5,800 per athlete when executives make billions from television revenue?

“Schools are conspiring, agreeing with competitors, to pay no salaries to workers,” Kavanaugh said. “It seems somewhat disturbing.”

In one of the most significant and maybe stunning moments, Clarence Thomas, another conservative justice who experts say rarely speaks up during cases, prodded Waxman over million-dollar coaching salaries.

“It strikes me as odd,” he said, “that coaches’ salaries have ballooned and they are in the amateur ranks, as are the players.”

Later on, Thomas showed his affinity for the college game, citing the “transfer portal” during one question.

The justices seemed to agree that the NCAA provided no evidence in its filings to suggest that fans would be less interested in college sports if athletes receive greater benefits, striking at the heart of the organization’s case.

On the other hand, several of the justices seemed uneasy about the consequences of siding with the plaintiffs.

Addressing acting solicitor general Elizabeth Prelogar, who joined the arguments for the plaintiff because the Justice Department has taken a position on the case in their favor, Justice Sonia Sotomayor said: “I’m not sure that you have given me comfort on some of the questions that my colleague, the chief justice, asked, which is, ‘How do we know that we’re not just destroying the game as it exists, meaning we’re being told by Mr. Waxman that all of these educational-related payments can become extravagant and, as a result, be viewed by the public as pay for play?’ ”

Or, as Justice Elena Kagan called it during questioning of Kessler, “the kind of floodgates argument – like what’s next? (Athlete compensation) is just going to go up and up and up, and pretty soon it will just be a regular labor market.”

It’s a mug’s game to rely on oral arguments to predict the outcome of the case, so I won’t even try to go there.  Dellinger outlines the four most likely outcomes:

A decision is likely to come in one of four forms: (1) a narrow plaintiff ruling that upholds broader amateurism policies; (2) a more broad plaintiff ruling that destroys the amateurism defense and cracks the door for more legal challenges to the NCAA model; (3) a narrow ruling in favor of the NCAA that strikes down the lower courts’ decision; (4) a more broad NCAA ruling that upholds the amateurism model.

My feeling is that, intellectually, the Court knows the NCAA’s position is untenable.  However, emotionally, there is some sympathy for the abstract notion of amateur athletics that’s tugging at the justices.  Combined, that suggests to me whatever comes as a ruling (probably not until mid-summer) will likely be more narrow than not.

If anything surprised me about the questioning yesterday, it’s how well informed most of the justices appeared to be about the issues and, specifically, about how the NCAA and the schools manage college football.  We’ll find out in a few months where the SCOTUS is letting amateurism head.

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The law, in all its majesty

The Alston oral arguments are underway right now.

Question:  if you had to pick the Supreme Court justice who would be the first ever to mention the transfer portal, whom would you choose?

Answer in comments.

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UPDATE:  I just…

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Say what you want about the tenets of amateurism, Dude, at least it’s an ethos.

Just a reminder that the Supreme Court is scheduled to hear oral arguments for the Alston appeal.  You can read a good summary of what’s at stake here, but here’s a succinct reminder that, when push comes to shove, amateurism abides:

If Alston wins, would that mark the end of amateurism?

No. “Amateurism” is a label used to define a set of NCAA rules that govern college sports and that, by prohibiting certain types of commercial opportunities, attempt to distinguish college athletes from professional ones. These rules have changed over the years—including through reforms sparked by Ed O’Bannon’s litigation—and will continue to evolve, regardless of the Court’s forthcoming ruling. Nothing will “end” amateurism as much as change it.

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Meanwhile, at the Supreme Court…

Quite a few heavy hitters have signed on with amicus briefs in support of the Alston plaintiffs.  I won’t list them all, but will cite the two most significant.

One was filed by former NCAA officials.

In an unprecedented show of collective dissent from those who have served within the NCAA’s ranks, six former NCAA employees filed an amici curiae brief Wednesday in support of former college athletes who are suing college sports’ governing body over antitrust claims related to scholarship restrictions.

In a “friends-of-the-court” petition in the Supreme Court case NCAA v. Alston, five former NCAA investigators and a one-time senior executive have said the association’s position has failed to keep up with the times.

“Though they once supported and enforced all of the NCAA’s rules,” the brief states, “with the benefit of further experience and hindsight, amici have come to believe that the NCAA’s current restrictions on college athletes’ receipt of education-related benefits do not promote ‘amateurism,’ which the NCAA itself has admitted has no fixed definition.”

Among the group, the most notable petitioner is Mark Lewis, who served as NCAA executive vice president until 2016. In 2014, Lewis was among the NCAA’s key trial witnesses in the separate class action lawsuit brought by former UCLA basketball star Ed O’Bannon over the publicity rights of college athletes.

The other five pro-Alston petitioners—Tim Nevius, Renee Gomilla, Mark Neyland, Angela O’Neal and Jasmine Williams—worked in various enforcement roles within the NCAA.

Will that carry more weight than the one filed by a couple of guys who didn’t understand the issues and another doing his lawyer friend a favor?  Gee, I dunno.

The bigger one — the biggest one, in fact — is this:

With regard to the DOJ’s request to participate, understand that it’s not seeking to overthrow amateurism altogether.  It wishes to step in to make the point that the relief the NCAA is seeking is overbroad.

In its amicus brief, the Justice Department asserts that the NCAA and its members ought not to receive preferential treatment under antitrust law. This is an area of law that requires competing businesses (such as colleges that vie for students, faculty, staff, grants, media attention, among many other pursuits) to only conspire in ways compatible with the basic tenets of competitive markets. The brief acknowledges that “schools must agree on at least some aspects of the competition” in order to make college sports work. The brief also points out that the NCAA and member schools have long portrayed the amateur status of athletes as “essential” to organizing and marketing college sports.

The Justice Department doesn’t necessarily disagree with the broad concept of amateurism. However, it objects to amateurism avoiding standard scrutiny for antitrust law litigation. “Contrary to [NCAA’s] contentions,” the brief maintains, neither the unique characteristics of the college sports industry nor case precedent “suggest that the challenged restraints should have been analyzed [by the Ninth Circuit] under a standard more relaxed than the traditional rule of reason.” The Justice Department’s reference to “rule of reason” is a reference to the customary way collusive activities by competing businesses are judged, whereby possible procompetitive qualities of the collusion (such as more choice for consumers or greater economic growth) versus anticompetitive harms of the collusion (such as higher prices or diminished innovation) are weighed.

The brief also casts doubt on NCAA worries over the potential loosening of amateurism rules for educational expenses. To that end, the Justice Department questions why the NCAA “highlights the possibility of atypical lucrative internships given by boosters” when the Ninth Circuit’s ruling “does not affect NCAA rules that prohibit boosters from providing such internships.” This reiterates a theme expressed throughout the brief: If upheld, the Alston ruling wouldn’t prevent the NCAA from continuing to deny compensation for athletes when that compensation is tied to athletics.

That’s true, as far as it goes, but still a disastrous result from the NCAA’s viewpoint, because nothing about it would prevent state legislatures and Congress from restricting the NCAA’s amateurism enforcement reach.  Without an antitrust exemption, Mark Emmert is going to get nibbled to death.  And he’s not getting one from Congress.

The DOJ’s request is a BFD, in other words.

First, the justices will likely accord added weight to the views of the Justice Department than they would, with all due respect, law professors, attorneys, economists, players’ associations, athletes and other interested parties. The Justice Department is not a mere commentator or observer. It is charged with enforcing federal antitrust law in the United States. The Department’s views on a federal antitrust dispute are thus especially meaningful. The agency also has an ongoing stake in college sports litigation. In January, the Justice Department signaled concerns to the NCAA over potential name, image and likeness guardrails. It will likely continue to weigh in on amateurism, especially should any of the federal NIL bills advance in Congress and land on the desk of President Joe Biden.

Second, the Justice Department wants to participate in the oral argument. It wishes to do for purposes of a “divided argument.” This occurs when the Solicitor General—the federal officer who represents the country before the Supreme Court—determines that the interest of the country would be better served by having a direct voice in the oral argument than to rely on the parties’ attorneys (here, attorneys for the NCAA and Alston). The Solicitor General can draw on department expertise and historical understandings.

Again, a sensible organization would read the writing on the wall and try to salvage what it could via a settlement.  But this is the NCAA we’re talking about.

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UPDATE:  I wonder if this is destined to come up in oral arguments.

Feel the amateurism!

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Amateurism, you turn me on.

Dennis Dodd summarizes one of the arguments the Alston lawyers made to the Supreme Court:

At the core of the NCAA’s argument is that paying players will turn off fans, thus depressing the demand for the “product,” in this case, major-college sports as a whole.

Alston lawyers argue that players already get financial rewards, including for academic achievement, and that has not affected fan interest to this point. There’s bowl gifts (capped at $550 per player) given out “simply for being on a team.” In addition, the cost of attendance stipend that has been around since 2015 is awarded only to athletes.

We’ve already told you about former LSU long snapper Blake Ferguson who “made” $12,000 per year while in school from scholarship checks and cost of attendance. Heisman Trophy winner Jameis Winston reportedly received $80,000 to purchase insurance as he headed to the NFL Draft through an NCAA Student Assistance Fund at Florida State.

And you might have noticed, the NCAA is fully on board with name, image and likeness compensation as it “modernizes” its rules. That compensation could reach into the high six figures for social media accounts alone.

I know, I know.  Amateurism romance doesn’t care about your facts.  The NCAA knows that, too.

“A parade of NCAA, conference and university witnesses admitted that they had never even attempted to study any relationship between the compensation restraints and consumer demand,” the Alston brief said.

Pffft.  And why should they?  The heart wants what the heart wants, amirite?

All mockery aside, this feeling argument grows ever more detached from reality, and that’s got to be putting more and more strain on the fiction the NCAA continues to peddle, as David Hale notes.

Screenshot_2021-03-05 💫🅰️♈️🆔 on Twitter

That last observation is the real kicker.

I know that many of you believe that player compensation will prove to be the final straw for you, and that, once a reality, will turn you away from collegiate football for good.  From my standpoint, authorized player compensation is merely the culmination of a series of events over decades that have steadily eroded the allure Hale refers to.  Conference realignment and broadcast partnerships have traded college football’s uniqueness for a mess of pottage, at least from this fan’s perspective.  Cutting players in on a piece of the action isn’t going to change any of that.

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With friends-of-the-court like these…

I don’t know whether to laugh or shake my head over this.

A “friend-of-the-court” brief filed last month in a potentially landmark U.S. Supreme Court case on NCAA amateurism purported to show that at least some former athletes, including those who participated in the so-called revenue sports, don’t want intercollegiate athletics to open the door to schools paying players.

The amici curiae brief in NCAA v. Alston, for which SCOTUS will hear oral arguments on March 31, has 18 former college athletes expressing support for the stance of college sports’ governing body. The association has appealed a lower federal court ruling that says the NCAA violates antitrust laws with some of its caps on athletic scholarships.

In making their case, the pro-NCAA filing states that the athletes’ interest “lies in ensuring the proper adherence to the revered tradition of amateurism and the continued availability of intercollegiate athletics.”

But in recent interviews, several of the brief’s signatories, including its most high-profile name—two-time Heisman Trophy runner-up and retired NFL running back Darren McFadden—suggested they weren’t actually clear with which side they were on, at least when it comes to amateurism, or had joined in the effort for largely peripheral reasons.

Yeah, I’d say this qualifies as not being clear.

In a telephone conversation last week, McFadden indicated that he was largely unaware of what the grant-in-aid litigation was about and gave indications that his intuitions were more in line with the plaintiffs.

“Once you are an adult, you want to make sure you can take care of your family…. You don’t really get that opportunity to help your family out [while in college],” McFadden said, later adding that he supported college athletes getting an additional stipend to their scholarship. When asked about what personal experiences had informed his perspective on the subject of college athlete compensation, McFadden spoke about being an SEC football star who was unable to afford paying a $50 parking ticket.

In a separate interview, Walter Bond, a former basketball star at Minnesota who played four seasons in the NBA, said that despite being part of the amici curiae, he believed college athletes were, in fact, employees of the universities they played for—a nonstarter for any legal defense of amateurism. “I think I must have misunderstood,” Bond later said about the case, acknowledging that it was possible he didn’t actually agree with the NCAA’s position.

Oops.

Then, there’s also the “just doing a buddy a solid” angle.

Meanwhile, another former college basketball player who signed the brief, Tre’ Kelley, suggested he had primarily joined the amici curiae because of his connections to Orrick Herrington & Sutcliffe, the firm that filed the brief.

“I am actually doing a favor for a good buddy of mine who works for the firm,” Kelley told Sportico. After initially agreeing to speak for this story, Kelley politely declined to answer other questions, saying that he had been contacted by Orrick an hour before a scheduled interview and advised to not talk about the case with the press.

In a statement, Will Stute, one of the Orrick lawyers who authored the brief, said it “fully and accurately reflects their support of the NCAA’s position on the issues before the Supreme Court. It is false and misleading to suggest otherwise.”

Heavens to Betsy, we can’t have that!

I’d say the NCAA ought to be ashamed of itself, but that particular horse escaped from the barn a long time ago.

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Bold strategy, Cotton.

Um… judge as sole referee?  I thought that’s why parties with a conflict went to court in the first place.

Note that the states mentioned all have SEC programs.  Can’t wait to see how quick they change their tune if the Supremes don’t come through.

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Jarndyce and Jarndyce, NCAA edition

Good Lord — until I saw this piece yesterday, I had no idea the NCAA and Todd McNair were still in court.

Sometime this spring, the 2nd District Court Appeal in California will determine whether a new trial will go forward after the judge who oversaw the first trial ruled that the jury did not have sufficient evidence for its ruling in favor of the NCAA and that the jury foreman, who is an attorney, should have been disqualified because their firm had previously done work on the case for the NCAA. If the NCAA’s appeal is denied and a second trial is granted, McNair’s case will stretch well past the 10-year mark.

The kicker?

One person familiar with the case suggested the NCAA has perhaps spent as much as $10 million in legal fees over the years fighting McNair…

I would venture to say the NCAA could have settled for a fraction of that amount, but that’s not how Emmert’s outfit is wired.

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Last shot for the NCAA?

The Supreme Court will hear arguments on NCAA v. Alston on March 31.

Given the way the prevailing political winds are blowing, this may very well be the best chance the NCAA will have to hold the line on amateurism.  Oral argument ought to be interesting, to say the least.

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Don’t bogart that popcorn, my friend.

From the standpoint of entertainment value, I’m sad to say this is probably an accurate assessment of Pruitt v. Tennessee.

With about four times the money at stake for Pruitt, Lyons isn’t going to cave easily.

Neither, it appears, is Tennessee. Not after Monday’s press conference, during which Chancellor Donde Plowman lamented the seriousness of the NCAA violations on Pruitt’s watch.

This could get ugly – even uglier than it already appears to be.

That’s why I’d expect a settlement at some point.

Legal disputes between a famous coach and a famous institution seldom make it to a courtroom. Neither side benefits from dirty laundry being aired in a public trial.

Neither side?  Pffft.  Will no one think of the fans from other programs?

One complicating factor is that Pruitt appears to face a serious handicap.

College sports, actually, is rife with examples of universities backing coaches through all kinds of scandals. Those coaches are usually winning, though.

Pruitt was not.

Having said that, the facts do appear to be on the university’s side.

Lyons’ statement questioned the existence of evidence to prove Pruitt could have prevented the alleged violations, but it didn’t dispute that they happened. The language in Pruitt’s contract is clear that NCAA infractions by his staff would allow UT to fire him for cause.

Well, you know what they say when the facts aren’t on your side.  The thing is, Tennessee probably doesn’t want to hear that table being pounded.  More accurately, Tennessee doesn’t want the rest of us hearing that table being pounded.  As Estes wrote, “The optics of having to try this case in court could be horrendous.”

Shit, man, that’s what we’re counting on!

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