A blanket ruling that a membership association like NCAA has broad authority to set competition-related rules; either effectively granting a university athletics exception to the antitrust laws or doing so explicitly. I think that outcome is not likely, but possible.
A more nuanced opinion grounded in the fundamentals of antitrust law, that looks at how closely courts can scrutinize membership rules related to competition in the context of a joint venture like the NCAA. Here the main focus will be on whether the trial judge went too far in micromanaging individual NCAA rules, as opposed to looking at the total package together and determining whether they work to create a playing field, providing some deference to the members of the joint venture to create that total package without second guessing. This opinion could come in two flavors: 1) one that all but shuts the door to future litigation against the NCAA's rules or 2) one that spawns more litigation. I think this option is the most likely result, though I'm not sure whether the Supreme Court will go with 1) or 2).
A declaration that the Ninth Circuit had it right and the other circuits have it wrong, affirming Alston and calling into question what other rules the NCAA can let stand. As I mentioned in my first post, this is a possible route but, practically speaking, it's not clear why the Supreme Court would have agreed to hear the case if it thought the Ninth Circuit decision was correctly decided. Since the Ninth Circuit's decision has already forced the NCAA to make changes, and those changes will remain in effect, the Supreme Court could have just let it stand had it agreed with the decision. Granting cert suggests that at least four of the nine justices think the Ninth Circuit decision is wrong in some way--ultimately they'll need a fifth justice to render a decision, of course.
NIL has left the barn because of state legislation and possible federal legislation. So I view that as a separate issue that probably won't be directly affected by the current strand of cases, though whatever the Supreme Court decides in Alston may affect a) how the NCAA can legislate going forward and b) the scope of possible federal legislation.
For those of you hoping that this case will end the NCAA once and for all, this is not a good development. In the overwhelming majority of cases in which the Supreme Court grants "cert"--i.e., agrees to hear a case--it overturns the lower appellate court. Worse yet, the Ninth Circuit is the most frequently overturned court in the land. And that's for a reason: it's rulings are consistently out of step with the other "circuit courts" (i.e., federal appellate courts) in the country.
The question that the Supreme Court will consider is this: "Whether the Ninth Circuit erroneously held, in conflict with decisions of other circuits and general antitrust principles, that the National Collegiate Athletic Association eligibility rules regarding compensation of student-athletes violate federal antitrust law."
To non-lawyers, this is saying that the Ninth Circuit's decision conflicts with the decisions of other courts and must be overturned. If at least four members of the Supreme Court (the minimum number required to hear a case) didn't already have strong opinions against the Ninth Circuit decision, I suspect there would've been no grant.
Now of course, the Supreme Court may be opting to hear the case because once and for all it wants to stick it to the NCAA...but, as mentioned above, given the pro-business, anti-consumer leanings of this current Supreme Court, that's a harder prediction to make.
As much as I hate to say it nick Saban has been a true leader through this pandemic. In a state and region where most leaders are questioning the virus’ existence, he’s on ESPN preaching the virtues of masking and social distancing, even after he was infected. These are not the talking points most in Alabama are hearing these days.
Every year I think I’m going to cut the cord and every year I call ATT and tell them that...and magically my cable bill, with HBO and Showtime, is 60/month.
First off, it's probably FERPA, not HIPAA that controls. But only those of us who practice this type of law care about that. Because what matters is the basic privacy principle: If I tell students that other students tested positive in their class, and then there all of a sudden there are 10 students out for 14 days, you can easily connect that disclosure to identity. Hence, it's potentially PII. The better way to deal with it is almost certainly the way that Alabama and others are dealing with it: If you think there's a risk, you have Student Health or some health authority reach out, do contact tracing, and give disclosures where appropriate. You target those disclosures. You don't make broad distribution of information. There's of course exceptions to this (e.g., if there's a true outbreak), but the exception shouldn't drive the rule.
The premise of the article misses the point. We shouldn't be giving faculty or teachers the responsibility of telling students who has been exposed. It should be given to administrators with appropriate authority. Once you disperse health-related disclosures throughout the institution, you have privacy issues galore. And it's bad administration.
Now, I don't actually know all of the elements of Alabama's plan. And it's certainly possible they have no plan. I doubt it. They have well-meaning employees who are trying. But let's not jump from "university says faculty shouldn't be the ones to disclose" to university is covering it up. That's ridiculous. It's intellectually dishonest. And it ignores how complex this situation is.
Last, the infectious disease experts I've worked with don't disagree with the advice about masks. If physical distancing is accomplished and masks are worn, you don't worry about exposure to the point that you use limited resources to do contact tracing, quarantining, etc. In other words, public health.
The situation you describe sounds serious enough that you need to hire counsel now. Get your advice from someone who can look at all of the facts. I strongly advise you not to discuss this on a message board, as this will be discoverable in any subsequent litigation.
Come on. Alabama just told their faculty not to violate students privacy rights. Schools have scores of people designated as contact tracers and others who are responsible for health issues. If a student is exposed they learn. And they learn about it confidentiality and the right way. This board has devolved.
Of course it's a loss. Revenue was supposed to come in and it's not if football doesn't happen. That revenue supports the salaries of the athletic department. Fair point that those salaries are out of control for some, but that doesn't mean it's not a loss. And it doesn't mean that the many middle class people whose jobs depend on this revenue won't get crushed. Trainers. Academic support personnel. Stadium workers. Medical and mental health professionals. These are people whose jobs, salaries, and futures are at risk.
Maybe you might say they should reserve more and plan for this, but no public university can stash that much cash away.
Every school is going to have students sign assumption of risk or waivers to return to campus, sports or not. Take a look at U-M's housing contract addendum. It includes a hold harmless provision and risk assumption. It would be a gross derilect of duty for a university not to at least have students sign an acknowledgement/assumption of risk. The financial future of many universities is on the line with reopening.
There's no doubt that if a school paid a student directly for their services, it would count as "financial assistance" under the Title IX regulations, and therefore be considered as part of the three-part test for analyzing compliance with Title IX. In the financial assistance realm, that test is unbending: the amount of financial assistance given to males v. females must be within 1%, or you're out of compliance. Now, Congress or the Department of Education could exclude cash payments for services from the current framework for analyzing Title IX, but that would turn the entire body of law underpinning equal assistance on its face.
To the extent that money received from NIL rights had some connection to the University--funded by the University, arranged by the University, etc.--that likely would be considered financial assistance as well. I suspect that's part of the reason for the current framework.
Though tangential, scholarships have long been ignored by the IRS as "income", even though there's good reason that they should be considered as much. If student-athletes start making money off their likeness, I suspect that there may be some push--not sure how much or whether it would get traction--to tax the $80k scholarships. At even a 20% rate, that's $16k a year that students would have to come up with.
I’m not sure what rights you’re referring to, but that’s not my point. My point is that NCAA should maintain the distinction between Pro sports and college because there’s a meaningful difference and a difference that has value.
Not sure it’s that simple. The typical tax analysis is everything is income unless there’s an exclusion. Once players start making money from their NIL for playing, the scholarships they receive for playing are potentially at issue. Right now the facade of amateurism is protecting that, but once that facade breaks down I’m not sure that it’s that black and white. I’m not a tax expert so I may be wrong but what I know about tax law from my practice is that it’s rarely that simple.
If student athletes are employees won’t their scholarships be taxed? Why shouldn’t the NCAA maintain a distinction between it and pro sports? I mean the reason we all love Michigan is because it’s something different. Its something special. Intangible, sure, but special because it’s different. It’s the reasons there’s value independent of the pro leagues. I understand the view that more should share in that value, but eroding it is short sided.
I get the hatred of the NCAA but the bias infiltrating the “reporting” here is just as bad. There is no balance or analysis. That’s why I came to this blog originally, i hope Brian can get back to that soon.
Paying players is a solution to a problem, but it's not the only solution. The problem: colleges and universities, which are not profit-making institutions, are acting like profit-making institutions when it comes to college football and basketball. Paying players is a way to address that problem: profit making institutions pay those who create their profits, thus we should pay players. But another way to address the issue is to rid the system of its profit motives. Eradicate the contracts with ESPN, CBS, ABC, etc. Take away the commercialization of the game. Align the game with the principles of amateurism that undergird the double speak coming out of the mouths of people like Shaw.
Although I'm not a frequest poster here, I often read the comments on this subject, and can say that I don't hear this solution bandied around much. I think it might because we all--and I'm including myself here--have a vested interest in college sports staying a commercial enterprise. Hell, this blog's founders and writers would not have a living in this area but for the commercialized nature of college sports.
But if I were a college and university president, I would be thinking about this option seriously. It's probably not possible--perhaps we've gone too far--but it is one that aligns with the purpose and function of universities, which are around to educate their students and better society, not to cowtow to ravid fans, many of whom have no affiliation with the university.
Paying players is a solution to a problem, but it's not the only solution. The problem: colleges and universities, which are not profit-making institutions, are acting like profit-making institutions when it comes to college football and basketball. Paying players is a way to address that problem: profit making institutions pay those who create their profits, thus we should pay players. But another way to address the issue is to rid the system of its profit motives. Eradicate the contracts with ESPN, CBS, ABC, etc. Take away the commercialization of the game. Align the game with the principles of amateurism that undergird the double speak coming out of the mouths of people like Shaw.
Although I'm not a frequest poster here, I often read the comments on this subject, and can say that I don't hear this solution bandied around much. I think it might because we all--and I'm including myself here--have a vested interest in college sports staying a commercial enterprise. Hell, this blog's founders and writers would not have a living in this area but for the commercialized nature of college sports.
But if I were a college and university president, I would be thinking about this option seriously. It's probably not possible--perhaps we've gone too far--but it is one that aligns with the purpose and function of universities, which are around to educate their students and better society, not to cowtow to ravid fans, many of whom have no affiliation with the university.
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I see three possible outcomes, in broad strokes:
NIL has left the barn because of state legislation and possible federal legislation. So I view that as a separate issue that probably won't be directly affected by the current strand of cases, though whatever the Supreme Court decides in Alston may affect a) how the NCAA can legislate going forward and b) the scope of possible federal legislation.
For those of you hoping that this case will end the NCAA once and for all, this is not a good development. In the overwhelming majority of cases in which the Supreme Court grants "cert"--i.e., agrees to hear a case--it overturns the lower appellate court. Worse yet, the Ninth Circuit is the most frequently overturned court in the land. And that's for a reason: it's rulings are consistently out of step with the other "circuit courts" (i.e., federal appellate courts) in the country.
The question that the Supreme Court will consider is this: "Whether the Ninth Circuit erroneously held, in conflict with decisions of other circuits and general antitrust principles, that the National Collegiate Athletic Association eligibility rules regarding compensation of student-athletes violate federal antitrust law."
To non-lawyers, this is saying that the Ninth Circuit's decision conflicts with the decisions of other courts and must be overturned. If at least four members of the Supreme Court (the minimum number required to hear a case) didn't already have strong opinions against the Ninth Circuit decision, I suspect there would've been no grant.
Now of course, the Supreme Court may be opting to hear the case because once and for all it wants to stick it to the NCAA...but, as mentioned above, given the pro-business, anti-consumer leanings of this current Supreme Court, that's a harder prediction to make.
As much as I hate to say it nick Saban has been a true leader through this pandemic. In a state and region where most leaders are questioning the virus’ existence, he’s on ESPN preaching the virtues of masking and social distancing, even after he was infected. These are not the talking points most in Alabama are hearing these days.
now I need a shower....
Every year I think I’m going to cut the cord and every year I call ATT and tell them that...and magically my cable bill, with HBO and Showtime, is 60/month.
First off, it's probably FERPA, not HIPAA that controls. But only those of us who practice this type of law care about that. Because what matters is the basic privacy principle: If I tell students that other students tested positive in their class, and then there all of a sudden there are 10 students out for 14 days, you can easily connect that disclosure to identity. Hence, it's potentially PII. The better way to deal with it is almost certainly the way that Alabama and others are dealing with it: If you think there's a risk, you have Student Health or some health authority reach out, do contact tracing, and give disclosures where appropriate. You target those disclosures. You don't make broad distribution of information. There's of course exceptions to this (e.g., if there's a true outbreak), but the exception shouldn't drive the rule.
The premise of the article misses the point. We shouldn't be giving faculty or teachers the responsibility of telling students who has been exposed. It should be given to administrators with appropriate authority. Once you disperse health-related disclosures throughout the institution, you have privacy issues galore. And it's bad administration.
Now, I don't actually know all of the elements of Alabama's plan. And it's certainly possible they have no plan. I doubt it. They have well-meaning employees who are trying. But let's not jump from "university says faculty shouldn't be the ones to disclose" to university is covering it up. That's ridiculous. It's intellectually dishonest. And it ignores how complex this situation is.
Last, the infectious disease experts I've worked with don't disagree with the advice about masks. If physical distancing is accomplished and masks are worn, you don't worry about exposure to the point that you use limited resources to do contact tracing, quarantining, etc. In other words, public health.
The situation you describe sounds serious enough that you need to hire counsel now. Get your advice from someone who can look at all of the facts. I strongly advise you not to discuss this on a message board, as this will be discoverable in any subsequent litigation.
Come on. Alabama just told their faculty not to violate students privacy rights. Schools have scores of people designated as contact tracers and others who are responsible for health issues. If a student is exposed they learn. And they learn about it confidentiality and the right way. This board has devolved.
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Of course it's a loss. Revenue was supposed to come in and it's not if football doesn't happen. That revenue supports the salaries of the athletic department. Fair point that those salaries are out of control for some, but that doesn't mean it's not a loss. And it doesn't mean that the many middle class people whose jobs depend on this revenue won't get crushed. Trainers. Academic support personnel. Stadium workers. Medical and mental health professionals. These are people whose jobs, salaries, and futures are at risk.
Maybe you might say they should reserve more and plan for this, but no public university can stash that much cash away.
Every school is going to have students sign assumption of risk or waivers to return to campus, sports or not. Take a look at U-M's housing contract addendum. It includes a hold harmless provision and risk assumption. It would be a gross derilect of duty for a university not to at least have students sign an acknowledgement/assumption of risk. The financial future of many universities is on the line with reopening.
There's no doubt that if a school paid a student directly for their services, it would count as "financial assistance" under the Title IX regulations, and therefore be considered as part of the three-part test for analyzing compliance with Title IX. In the financial assistance realm, that test is unbending: the amount of financial assistance given to males v. females must be within 1%, or you're out of compliance. Now, Congress or the Department of Education could exclude cash payments for services from the current framework for analyzing Title IX, but that would turn the entire body of law underpinning equal assistance on its face.
To the extent that money received from NIL rights had some connection to the University--funded by the University, arranged by the University, etc.--that likely would be considered financial assistance as well. I suspect that's part of the reason for the current framework.
Though tangential, scholarships have long been ignored by the IRS as "income", even though there's good reason that they should be considered as much. If student-athletes start making money off their likeness, I suspect that there may be some push--not sure how much or whether it would get traction--to tax the $80k scholarships. At even a 20% rate, that's $16k a year that students would have to come up with.
I’m not sure what rights you’re referring to, but that’s not my point. My point is that NCAA should maintain the distinction between Pro sports and college because there’s a meaningful difference and a difference that has value.
Not sure it’s that simple. The typical tax analysis is everything is income unless there’s an exclusion. Once players start making money from their NIL for playing, the scholarships they receive for playing are potentially at issue. Right now the facade of amateurism is protecting that, but once that facade breaks down I’m not sure that it’s that black and white. I’m not a tax expert so I may be wrong but what I know about tax law from my practice is that it’s rarely that simple.
If student athletes are employees won’t their scholarships be taxed? Why shouldn’t the NCAA maintain a distinction between it and pro sports? I mean the reason we all love Michigan is because it’s something different. Its something special. Intangible, sure, but special because it’s different. It’s the reasons there’s value independent of the pro leagues. I understand the view that more should share in that value, but eroding it is short sided.
I get the hatred of the NCAA but the bias infiltrating the “reporting” here is just as bad. There is no balance or analysis. That’s why I came to this blog originally, i hope Brian can get back to that soon.
Paying players is a solution to a problem, but it's not the only solution. The problem: colleges and universities, which are not profit-making institutions, are acting like profit-making institutions when it comes to college football and basketball. Paying players is a way to address that problem: profit making institutions pay those who create their profits, thus we should pay players. But another way to address the issue is to rid the system of its profit motives. Eradicate the contracts with ESPN, CBS, ABC, etc. Take away the commercialization of the game. Align the game with the principles of amateurism that undergird the double speak coming out of the mouths of people like Shaw.
Although I'm not a frequest poster here, I often read the comments on this subject, and can say that I don't hear this solution bandied around much. I think it might because we all--and I'm including myself here--have a vested interest in college sports staying a commercial enterprise. Hell, this blog's founders and writers would not have a living in this area but for the commercialized nature of college sports.
But if I were a college and university president, I would be thinking about this option seriously. It's probably not possible--perhaps we've gone too far--but it is one that aligns with the purpose and function of universities, which are around to educate their students and better society, not to cowtow to ravid fans, many of whom have no affiliation with the university.
Paying players is a solution to a problem, but it's not the only solution. The problem: colleges and universities, which are not profit-making institutions, are acting like profit-making institutions when it comes to college football and basketball. Paying players is a way to address that problem: profit making institutions pay those who create their profits, thus we should pay players. But another way to address the issue is to rid the system of its profit motives. Eradicate the contracts with ESPN, CBS, ABC, etc. Take away the commercialization of the game. Align the game with the principles of amateurism that undergird the double speak coming out of the mouths of people like Shaw.
Although I'm not a frequest poster here, I often read the comments on this subject, and can say that I don't hear this solution bandied around much. I think it might because we all--and I'm including myself here--have a vested interest in college sports staying a commercial enterprise. Hell, this blog's founders and writers would not have a living in this area but for the commercialized nature of college sports.
But if I were a college and university president, I would be thinking about this option seriously. It's probably not possible--perhaps we've gone too far--but it is one that aligns with the purpose and function of universities, which are around to educate their students and better society, not to cowtow to ravid fans, many of whom have no affiliation with the university.