Legal Docket - An upset for the NCAA?

MARY REICHARD, HOST: It’s Monday morning and we’re back for another week of The World and Everything in It. It’s April 12th, 2021. Good morning to you!  I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher.

Just before midnight on Friday, the U.S. Supreme Court placed a hold on California’s Covid restrictions against in-home religious gatherings. It was an emergency ruling and not a final opinion, but it’s significant nonetheless in that it does expand religious free-exercise.

The ruling has to do with California’s limit on home gatherings to three or fewer households a mitigation measure it does not place on secular settings like WalMart stores or tattoo parlors.

Pastor Jeremy Wong argued California’s restrictions violate the Free Exercise Clause of the First Amendment. On an explicit constitutional right, the legal analysis required is known as “strict scrutiny.”

In other words, before any government may infringe a First Amendment right, it must first have a compelling interest to do so and then, second, to do it in a narrowly tailored way.

The slimmest majority of five found the in-home restrictions did not pass Constitutional muster, even though an appellate court said that it did.

In a pointed rebuke of that court, the opinion said, quoting here, “This is the fifth time the court has summarily rejected the Ninth Circuit’s analysis of California’s Covid-19 restrictions on religious exercise.”

REICHARD: A dissent by Justice Elena Kagan that two others joined said “the law does not require that the state equally treat apples and watermelons.” Meaning, home gatherings are not the same as commercial enterprises and ought not be treated as such.

Chief Justice John Roberts didn’t join the dissent, but he voted with the dissenters in trying to deny the emergency request.

This is a temporary hold while litigation proceeds in the lower courts.

EICHER: The court handed down another opinion last week in a years-long dispute between two tech giants over copyright protection.

It was a 6-2 win for Google: the majority justices ruled Google’s use of parts of computer software code that Oracle owns is permissible under the legal doctrine of Fair Use. That doctrine analyzes the use of intellectual property under four criteria: purpose, nature, amount, and effect of using the work of others. Bottom line: Oracle will get no money from Google.

Oracle’s supporters warn innovation will suffer because cash-short startups don’t have the ability to fight wealthier, established corporations that claim fair use in intellectual-property disputes.

REICHARD: Now on to oral argument in what could be an upset for the NCAA, the National Collegiate Athletic Association.

This fight’s been going on for years over the NCAA’s cap on benefits to college athletes related to education, in the name of “amateur sports.”

This dispute is playing out on several fronts: state legislatures, courts, public opinion, and in Congress.

The NCAA has asked Congress to create a uniform rule across all fifty states.

Meanwhile in the courts, a federal court last year decided the NCAA violated antitrust law by restricting what schools can offer their athletes. Sometimes called competition statutes, antitrust laws protect consumers from predatory business practices like price fixing.

But the NCAA’s lawyer, Seth Waxman, argued the ruling creates a pay-for-play system that ruins the distinction between college sports and professional leagues.

WAXMAN: For more than 100 years, the distinct character of college sports has been that it’s played by students who are amateurs, which is to say that they are not paid for their play. Maintaining that distinct character is both pro-competitive because it differentiates the NCAA’s product from professional sports, and can be achieved only through agreement.

REICHARD: But for Justice Brett Kavanaugh, it’s not enough to stand on history and tradition. He speaks at length, but I’ve edited to highlight his main points.

KAVANAUGH: I start from the idea that the antitrust laws should not be a cover for exploitation of the student-athletes, so that is a concern, an overarching concern here. It does seem that schools are conspiring with competitors, agreeing with competitors, I’ll say that, to pay no salaries to the workers who are making the schools billions of dollars on the theory that consumers want the schools to pay their workers nothing. And that just seems entirely circular and even somewhat disturbing. 

REICHARD: And Justice Clarence Thomas noted the economics of the situation:

THOMAS: Well, it just strikes me as odd that coaches’ salaries have ballooned and they are in the amateur ranks, as are the players. 

REICHARD: Understand, this case isn’t about whether student athletes should be paid the fair market value of their labor.

This is strictly within the context of education. A narrower question, of whether colleges are allowed to recruit players by offering more benefits that are tied to education. Think computer equipment and study abroad expenses.

The NCAA pounded on what makes its “product” of college sports distinct from the professional leagues: it’s athletes are not paid.

Waxman got lots of pushback. Justice Samuel Alito:

ALITO: You say that what’s distinctive about your product is that your players are not paid. And that was true a hundred years ago. But, in fact, they are paid. They get lower admission standards. They get tuition, room and board, and other things. That’s a form of pay. So the distinction is not whether they’re going to be paid. It’s the form in which they’re going to be paid and how much they’re going to be paid, isn’t that right?

WAXMAN: It is not right.

REICHARD: Waxman countered that by NCAA definition, those benefits are not pay. They are compensation, but not pay in the usual sense.

But Justice Amy Coney Barrett questioned the whole premise of that.

BARRETT: Why does the NCAA get to define what pay is? I mean, some people want to play in college for the love of the game. Some people think they’ll be able to go pro. A lot of people do it because they want to be able to afford college educations or, you know, get the in-kind benefit equal to, you know, say, 30- or 40,000 dollars worth of tuition. So why do you get to define what pay is?

WAXMAN: Well, I think there’s a, the general principle…

BARRETT: A general principle that producers get to define their own product. And the NCAA’s been successful to keep up demand for its product of college sports. Mess with that? Mess up competition, he argued.

On the other side, lawyer for the athletes, Jeff Kessler. He pointed out inconsistencies.

KESSLER: As recently as 2015, the NCAA said you couldn’t provide even the most basic cost of attendance for the athletes. This case is more of the same; it is just the latest iteration of the repeatedly debunked claims that competition will destroy consumer demand for college sports and that the NCAA should have a judicially created antitrust exemption because of an imaginary revered tradition that they argue for.

REICHARD: So, don’t exempt the NCAA from the same antitrust laws other industries face.

Yet Justice Stephen Breyer wasn’t so sure.

BREYER: This is not an ordinary product. This is an effort to bring into the world something that has brought joy and all kinds of things to millions and millions of people, and it’s only partly economic. OK, so, I worry a lot about judges getting into the business of deciding how amateur sports should be run.

REICHARD: And Justice Kavanaugh worried that handing victory to the athletes would invite massive future litigation.

KAVANAUGH: What in your view is the endgame of this litigation if you—not this particular litigation but of future litigation. Is the endgame collective bargaining? Is the endgame legislation?

REICHARD: Kessler, for the players, wasn’t sure about collective bargaining or legislation. But he argued antitrust law is what this case is about, and the most common analysis leans in his favor.

Justices of different ideologies seemed sympathetic to the players. Justice Alito pointed out that athletes have little time to study, have shockingly low graduation rates, and most are used up and cast aside without even a college degree.

But there was a moment of levity here, and I’d like to end with it, as these are rare moments because the arguments are still by phone. And, well, Justice Antonin Scalia isn’t around anymore.

It happened during Justice Thomas’s time of questioning. Lawyer Waxman for the NCAA made a very human error referring to Justice Thomas as chief justice, when that, of course, is Chief Justice Roberts. But Waxman handles this beautifully.

Listen:

THOMAS: Did we conduct a deferential quick look review?

WAXMAN: Well, the—Mr. Chief Justice, the amateurism rules…

THOMAS: Thank you for the promotion, by the way.

WAXMAN: I’m sorry, but I’m sure you would be terrific at that, Justice Thomas. Let me just say that—

ROBERTS: There’s no—there’s no opening, Mr. Waxman.

WAXMAN: There’s nothing more I can say that will not get me into trouble, so let me answer Justice Thomas’s question.

REICHARD: A light moment in a case with huge ramifications for college sports and antitrust law. It’s complicated, far beyond even these arguments. Any prediction on the outcome would be only a guess, and I’d rather not.

Also, before we go, a quick mention of one other argument from March, an issue that’s already come up once before.

It asks when do you forfeit your chance to challenge the administrative law judge who hands down a disability-benefits decision you don’t like.

And it’s not clear what you have to object to specifically or when you have to object before taking it up with the courts.

The Social Security Administration could simply fix this, which the justices would prefer it do.

And that’s this week’s Legal Docket.

(J. Scott Applewhite/Associated Press) In this Nov. 2, 2020, file photo the Supreme Court is seen at sundown in Washington. President Joe Biden has two seats to fill on the influential appeals court in the nation’s capital that regularly feeds judges to the Supreme Court.

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