President Obama’s nomination of Merrick Garland, the Chief Judge of the U.S. Court of Appeals for the District of Columbia, to Associate Justice of the U.S. Supreme Court could significantly impact legal challenges over NCAA amateurism rules. This is particularly true for the case brought by Ed O’Bannon and other players over the use of Division I men’s basketball and football players’ names, images and likenesses in broadcasts and video games.
O’Bannon has defeated the NCAA twice, first in the U.S. District Court for the Northern District of California in 2014 and second in the U.S. Court of Appeals for the Ninth Circuit in 2015. O’Bannon’s victory was historic in that he proved that certain NCAA amateurism rules violate antitrust law. But the victory creates only modest impact: it compels the NCAA to allow colleges to provide student athletes with up to the cost of attendance, a step that the NCAA had already planned to take. Expectations by some for an O’Bannon ruling that would require schools to compensate student-athletes through licensing agreements or other arrangements did not materialize.
Last week attorneys representing O’Bannon petitioned the U.S. Supreme Court to hear the case in hopes of obtaining a more consequential victory. If the Supreme Court—which only agrees to hear only about 1% of petitions—agrees to hear O’Bannon’s case, Garland could become the decisive swing vote. With the death of Antonin Scalia, the Court is ideologically divided between four Justices (Chief Justice John Roberts and Associate Justices Anthony Kennedy, Clarence Thomas and Samuel Alito) who are generally regarded as conservative and four justices (Associate Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan) who are generally regarded as liberal. While positions on amateurism rules do not neatly conform to conservative/liberal labels, Garland’s somewhat left-of-center record, particularly on union-management matters, could favor O’Bannon. On the other hand, Garland’s reputation for restraint in applying antitrust law could be good news for the NCAA.
As a Supreme Court Justice, Garland might also hear the case brought by Martin Jenkins, who is represented by Jeffrey Kessler and David Greenspan—the same attorneys representing Tom Brady in the Deflategate litigation. Jenkins and several other players contend that NCAA rules requiring colleges to cap the value of athletic scholarships to tuition, room, board, books and fees violate antitrust law. The Jenkins case is currently before U.S. District Judge Claudia Wilken and one day might work its way to the Supreme Court.
Why the controversy over Judge Garland’s nomination matters for NCAA cases
Before further assessing the potential impact that Garland might have on cases involving the NCAA and college players, it’s worth acknowledging that the U.S. Senate might not consider Garland’s nomination to the U.S. Supreme Court, let alone confirm it. Garland’s nomination has sparked intense controversy—not so much over the 63-year-old’s background or credentials, but over whether the U.S. Senate should hold a confirmation hearing during a presidential election year. On Sunday, Senate Majority Leader Mitch McConnell told CNN‘s Dana Bash that the Senate will not confirm Garland to the U.S. Supreme Court.
Opponents to Garland’s nomination cite several arguments. Some of them contend that since there has not been a U.S. Supreme Court vacancy, nomination and confirmation all in the same election year in 84 years, Garland’s nomination should be postponed until after the presidential election on Nov. 8, 2016. Other opponents, including McConnell, go a step further to insist that because President Obama’s term will end in 10 months, the replacement for Justice Scalia should be made by the next president. A similar line of reasoning rests in the absence of a Constitutional requirement compelling the Senate to consider Garland or any other nominee.
The other side of the debate stresses that until his term expires on Jan. 20, 2017, President Obama has the clear authority under Article II, Section 2 of the U.S. Constitution to nominate a Supreme Court justice. Advocates of Judge Garland’s nomination also highlight that the Senate has almost always extended the courtesy to consider a Supreme Court nominee, rather than outright refuse to meet with him or her. Also, while the Supreme Court can function with eight Justices, it is far from ideal. A 4-4 decision only serves to affirm the lower court’s ruling and does not create Supreme Court precedent. This means that important cases could go without national resolution. To wait until the next President for Justice Scalia’s replacement would also constitute an unusually long time: there would be 343 days between Justice Scalia’s death and the inauguration of the next president, and likely many days thereafter between a nomination by the next president and that nominee’s confirmation. According to Chris Wilson of Time Magazine, the longest the Court has ever functioned with eight justices is 391 days.
Given the uncertainty of Judge Garland’s nomination, there exists a good possibility that he won’t be confirmed and thus won’t hear any NCAA-related cases that rise to the Supreme Court. At a minimum, months will likely pass before there is resolution on Garland’s nomination.
The timing of Judge Garland’s nomination is important as it relates to the O’Bannon case. The NCAA has until Apr. 18, 2016 to decide on whether to support or oppose O’Bannon’s petition that the Supreme Court hear the case. Although the NCAA has thus far lost the O’Bannon case, it has been a containable loss that does not require the NCAA to make changes beyond what it was already planning to adopt. If the Supreme Court agrees to hear the O’Bannon case, the Court might issue a more sweeping victory for O’Bannon and a more costly loss for the NCAA. Conversely, it is possible that the Court could reverse O’Bannon’s victory and outright rule for the NCAA. The NCAA would certainly prefer O'Bannon's victory be reversed so that it cannot be used as a precedent against the NCAA in other antitrust cases.
The NCAA is thus in a unique position where even though it has lost the O’Bannon case, it may nonetheless prefer the certainty of a manageable loss to a gamble that might lead to victory or might lead to harsher defeat. Justice Scalia’s death is also a factor. The NCAA probably believed that Scalia, a conservative, would be a favorable justice for the NCAA’s perspective. His absence could make the NCAA less inclined to roll the dice on the O’Bannon case with the Supreme Court.
If the NCAA files a brief in opposition to O’Bannon’s cert petition, the Supreme Court would be less likely to hear the case. In contrast, if the NCAA acquiesces to review of the case, the Supreme Court would be more likely to hear the case . Either way, the odds would be heavily against the Supreme Court reviewing the O’Bannon case, just as the odds are heavily against the Supreme Court reviewing almost any case. As mentioned above, the Supreme Court only reviews about 1% of petitions. That said, the O’Bannon case and the larger issue of amateurism rules impact thousands of colleges and college students across the country. The Supreme Court might feel the need to address the underlying issues in order to provide clarity going forward.
If the Supreme Court agrees to hear the O’Bannon case, an oral argument between attorneys for O’Bannon and the NCAA would be scheduled before the Court for sometime between October 2016 and April 2017, with a decision most likely announced months after the argument. Garland might not be confirmed in time to participate in a hearing on O’Bannon, meaning the possibility of a 4-4 decision would be in play. In a 4-4 decision, O’Bannon’s limited victory as enunciated by the U.S. Court of Appeals for the Ninth Circuit would hold, but it would not serve as Supreme Court precedent. As a consequence, new cases that resemble the O’Bannon case could be brought in federal districts outside of those in the Ninth Circuit (West Coast states) and produce very different outcomes. A case similar to O’Bannon that is litigated in, for instance, New York, Florida, Texas or Illinois would not be bound by the decision of the Ninth Circuit in O’Bannon. This dynamic could lead to conflicting decisions across the country and chaos for schools in trying to understand which amateurism rules apply.
Would Judge Garland be inclined to favor or oppose the NCAA on amateurism cases?
Legal scholars generally regard Judge Garland, a 1977 magna cum laude graduate of Harvard Law School and a federal judge since 1997, as a centrist who at times pivots left. According to the Judicial Common Space, an empirical study by Washington University law professor Lee Epstein on judges’ ideologies, Garland is ideologically similar to Justices Breyer and Kagan, both of whom are typically viewed as center-left jurists (in contrast to Justices Sotomayor and Ginsburg, both of whom are often regarded as progressive). Some conservative commentators, such as George Will, have praised Judge Garland both for ruling in ways that limit the discretion of federal regulatory agencies and for adhering to precedent instead of “making law” from the bench. Judge Garland also tends to receive admiration for writing opinions that avoid grandiose overstatement and that stick to technical applications of law.
Judge Garland has not ruled on cases where the NCAA was a party. This is not surprising since cases before the U.S. Court of Appeals for the District of Columbia often implicate the powers of federal administrative agencies. Judge Garland has, however, ruled on antitrust cases and also written about antitrust law—the area of law implicated by the O’Bannon and Jenkins cases.
In both the O’Bannon and Jenkins cases, the NCAA, along with its member schools and conferences, are alleged to have unlawfully conspired to thwart competition. While O’Bannon contends that the NCAA and its members have unlawfully conspired to prohibit compensation for the commercial use of names, images and likenesses, Jenkins maintains that the NCAA and its members have unlawfully conspired to prohibit athletic scholarships that exceed tuition, room, board, books and fees.
These alleged “conspiracies” take on antitrust significance because Section I of the Sherman Act prohibits competing businesses from conspiring in anticompetitive ways, including in ways that raise prices or stifle innovation. NCAA member schools clearly compete in athletics. They most obviously compete on the field and on the court, as March Madness illustrates so well. They also compete “off the field,” such as in recruitment for student-athletes and coaches. O’Bannon and Jenkins assert these competitors conspire through amateurism rules to not compete in certain ways for student-athletes and thus deprive those student-athletes of the value of their services. To be clear, O’Bannon and Jenkins do not contend that schools “must” pay student-athletes. They only assert that schools cannot conspire with one another to not pay.
The NCAA has rejected these antitrust arguments on several grounds. One key argument is that antitrust laws are generally designed to protect consumers and, according to the NCAA, there is no reliable evidence demonstrating that amateurism rules inflict harm on college sports fans and related consumers. Further, the NCAA maintains that amateurism rules have been associated with record-breaking growth in college sports fandom, which suggests these rules actually benefit consumers. The NCAA also warns that the loss of amateurism rules would mean that some universities could no longer afford sports programs, thereby leading to fewer schools with teams and fewer teams for fans to follow. In addition, the NCAA claims that amateurism rules help to promote graduation rates and minimize commercial interference with student-athletes’ academic studies.
At least in certain circumstances, Judge Garland appears to embrace a restrained or cautious view of the role of antitrust law. For example, in his 1985 Yale Law Journal article, “Antitrust and State Action,” Garland tackled the role played by antitrust law’s state action doctrine, which, among other things, empowers state governments to avoid antitrust scrutiny of their regulations. In the article, Garland criticized judges and scholars who advocate using antitrust law to undermine state regulations. While the NCAA is not a government actor—the Supreme Court already decided that issue in 1988 in NCAA v. Jerry Tarkanian—the reservations expressed by Garland in using antitrust law might be an encouraging sign for the NCAA. The NCAA would prefer judges who adopt a limited conception of antitrust law.
Judge Garland also expressed an unwillingness to find antitrust injury in Adam Ostrzenski v. Columbia Hospital, a 1998 case involving a physician who argued that a group of physicians and hospitals had unlawfully conspired against him. Garland joined two other judges to conclude that in the absence of clear evidence, no antitrust injury can be proven. This reasoning may be favorable for the NCAA. The NCAA insists that the intended beneficiaries of antitrust law—consumers—suffer no proven harm from amateurism rules.
On the other hand, Judge Garland appears supportive of unions and the rights of workers. This point is made clear in a Wall Street Journal article observing that Judge Garland’s normally cautious approach seems unfounded in cases involving workers. Such a pattern of ruling is positive for O’Bannon and Jenkins, both of whom want to present their cases to judges who are inclined to regard Division I men’s basketball and football players more along the lines of professional workers than students. If Judge Garland is inclined to view college athletes as injured by amateurism rules, he could be more receptive to accepting legal theories that find the NCAA at fault.
The net result: as is often the case with judges, Judge Garland’s judicial record does not fit into one ideological box. It is nuanced and adaptive. Advocates for college athletes and advocates for amateurism should both feel confident that in the event there is a Justice Garland, they would get a fair shot before him.
Michael McCann is a legal analyst and writer for Sports Illustrated. He is also a Massachusetts attorney and the founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law. He also created and teaches the Deflategate undergraduate course at UNH, serves as the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law and is on the faculty of the Oregon Law Summer Sports Institute.