Professor Michael McCann on the potential impact United States Supreme Court nominee Hon. Amy Coney Barrett will have on sports law, including her case history and potential future cases if on the bench. Produced and Hosted by A. J. Kierstead
Read Professor McCann's articles on the subject:
https://www.sportico.com/law/analysis/2020/barrett-title-ix-ruling-1234613846/
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Legal topics include sports, Affordable Care Act, intellectual property, name image & likeness, US Supreme Court, immigration, Title IX
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A. J. Kierstead (Host):
Professor Michael McCann on the potential impact SCOTUS nominee Amy Coney Barrett will have on the future of sports law. This is the Legal Impact presented by the University of New Hampshire Franklin Pierce School of Law. Now accepting applications for JD graduate programs and online professional certificates. Learn more and apply at law.unh.edu. Opinions discussed are solely the opinion of the fact your hosts and do not constitute legal advice or necessarily represent the official views of the University of New Hampshire. So Mike firstly, congrats on being a founding writer for a new sports outlet. Can you tell me a little bit about Sportico?
Michael McCann:
Sure, thank you. So Sportico is a new publication of Penske media. Penske media is the publisher of Rolling Stone and Variety and a number of other publications, and they have launched this new website, Sportico, which will focus on the sports industry, particularly sports business, and also of course some sports law. It's a team of writers who have been with Bloomberg, ESPN and other outlets and it's exciting to be part of a new venture. It's always neat to do something from the ground up and to be part of the originating team, so it's gone well so far, I'm excited.
A. J. Kierstead (Host):
That's great. And what are some of the other? You've obviously written about this, which we'll put the links in the description for the two articles kind of related to this, what other sorts of things have you written about recently?
Michael McCann:
So other topics that I've written about recently include Robert Kraft, the Patriots' owner who was cleared in Florida of the solicitation charge. We know all about that and we know that there was a problem with the search warrant where the police recorded Kraft but other people inside the spa and they never turned off the cameras, they never adhered to the limitation principle so Kraft was cleared in terms of the offense there. I've also written about name, image, and likeness. I've written a number of stories about NIL. Most recently including a new federal proposal, a bill that would try to thread the needle in terms of what the NCAA is seeking, but also what players want. That's a topic that's going to play out quite a bit over the next several months.
A. J. Kierstead (Host):
So for today, Judge Amy Coney Barrett has been nominated by President Trump to take the seat on the U.S. Supreme court that's previously held by the late Justice Ruth Bader Ginsburg. I figured this to be a good time to look into Judge Barrett's past and sports law related cases since in some cases that might be coming down the road, if she is to sit on the court, which is very likely to happen. Looking back at her history what are some cases? I saw in your article there's some stuff related to Title IX that stood out in some previous rulings she was on.
Michael McCann:
Yeah, that's the big one would be Title IX. Title IX of course is a Federal Law that commands gender equity in college athletics, but also more broadly in college education, including the register's office, including admissions, all sorts of things. And in the context of Title IX college sports intersects in a couple of ways. One is what we normally think of with Title IX, which is that there's gender equity in terms of treatment of men and women athletes, that there are equal opportunities for both sexes, but it also comes up in the context of domestic violence and violence against women, and how schools respond to students having an incident. What is the proper channel for redress in that situation? And there's data that college athletes are much more likely to encounter a Title IX problem in terms of violence then other students. ESPN Outside the Lines had a study a couple of years ago where they found that college athletes are three times more likely to encounter this issue. So it's very impactful not only for college in general, but also in college sports.
Michael McCann:
And Judge Barrett issued a pretty influential opinion in a case involving Purdue University. Basically there was a male student and female student, they broke up, she alleged that he had committed wrongful acts, including acts that would be considered harassment or worse depending upon how you want to look at the set of facts. And the case...Judge Barrett didn't decide whether he did it or not, the question was did the school provide him a fair shot? And she felt, and the other judges on the appellate court felt, that the school did not because the student had no opportunity to review the investigative report, had no opportunity to present witnesses, had no opportunity to look at the evidence. Two of the three administrators on the disciplinary panel admitted that they hadn't read the report and yet they still found against him.
Michael McCann:
So the question wasn't did he do it? It was did he get basic safeguards? And the court felt that he did not, and I think a lot of people would agree frankly that if you're accused of something and it doesn't have to be in court, it could be in school, and where the consequences could be expulsion, could be suspension, loss of scholarship, in the context of athletes it might be not being able to play. Maybe that's not as severe but it's still very serious. And the disciplinary system in schools is very different than in courts. And it's easier to be falsely accused, especially if you can't actually have a chance to rebut the evidence. So her ruling helped shaped some recent changes by the Department of Education in terms of how schools need to provide more due process to those who are accused.
A. J. Kierstead (Host):
Now when it comes to her coming to the Supreme Court, well like I said, it's very likely to happen, I mean there's a Senate Majority on the Republican side and with a Republican President, I mean, it's just the way the process works. This would be a discussion I'd ordinarily have with John Graby. So I mean do you see generally speaking from an ideological perspective any difference when it comes to between a conservative versus a liberal judge with a lot of the matters that you would ordinarily address in sports law?
Michael McCann:
Yeah, so I don't think that distinction is always as clear in sports. Just to give an example, name, image, and likeness, right? Should college athletes be able to license their name, image, likeness, should they be able to sign endorsement deals? There's a chance that could get to the Supreme Court in a variety of ways. A judge who is libertarian, traditionally conservative, could say yeah, athletes should be able to do that. Why is the NCAA and its schools preventing the market from operating correctly? Or a more progressive judge could look at it as a civil rights issue. An issue of race perhaps.
Michael McCann:
So they could each get to the same place even though they're looking at it from different lenses. So I don't know if that distinction is as meaningful in the context of sports. It could be meaningful in review of healthcare, especially the individual mandate is that interfering with interstate commerce under Obamacare? If the Supreme Court finds that it is unduly interfering with interstate commerce, that could affect retired players in the NFLPA, they all have pre-existing conditions, so they could be impacted. So that's a little bit more ideological perhaps, but in some of these I don't think it's a Republican, Democrat, Conservative, Liberal paradigm. I think it's really about how you look at issues.
A. J. Kierstead (Host):
It seems to me you're saying that it reminds me of the political compass that you see all over the internet. The authoritarian libertarian versus, and then traditional and progressive, it's a lot messier than people like to lay it out to be.
Michael McCann:
Yeah, and I would just add... And I think judges also... I think the media gets caught up with whether a judge is a Republican or a Democrat. Look at Chief Justice Roberts, he was appointed by President Bush, a Republican, but he has issued opinions that are at times not in line with the Republican Party. Justice Souter of course was nominated by the first President Bush and he ended up taking what many would say is a more moderate or even progressive approach to the law.
Michael McCann:
So it's partly because we sort of label people Republican, Democrat, but everyone's different. And judges in particular, they're not always easy to predict and I don't know what Judge Barrett, assuming she is confirmed to the Supreme Court as Justice, how she'll be as a judge. Obviously it's most likely she will be conservative but that doesn't always yield the ruling that people predict.
A. J. Kierstead (Host):
Looking forward especially over the next year, what sort of cases do you predict the she would be likely to encounter? Especially now that it's going to be a very solid conservative court that's going to be in place, do you have any predictions over the next 12 months?
Michael McCann:
Well, I would imagine there could be immigration cases. There are a number of immigration cases that are in the Federal Courts, that's one area. There are Second Amendment.
A. J. Kierstead (Host):
Which once again can have college athlete implications that's for sure.
Michael McCann:
It's a great point because play it out. If a college athlete is in the United States as a student, if a college athlete is deemed to be an employee, his or her immigration status will change, so that affects eligibility. And to get to the broader point, sure, if Immigration Laws change and it becomes more difficult to enter the United States that could preclude some athletes from coming to the United States. And obviously that's an area of law that's highly politicized, particularly these days. But again, a judge may not look at it from the sort of political prism that things are often portrayed nowadays.
A. J. Kierstead (Host):
And you previously brought up the Affordable Care Act. I mean that's more than likely to be brought up again, especially if Trump continues to be an office after this November election. Is there anything else on that you'd want to bring up?
Michael McCann:
As from what the current schedule is about a week after the election in November, a Texas versus California, the Supreme Court case, will have oral arguments. And that's the case about the individual mandate under the Affordable Care Act. Whether or not it interferes unduly with interstate commerce, and there's an Appellate Court ruling saying it does, if Justice Barrett isn't confirmed by then there could be a four four split in that case potentially, and then the ruling of the Appellate Court would hold. Obviously there's a lot of moving pieces to that. For instance, if the Affordable Care Act is deemed unconstitutional, we're only talking about a piece of it? Are we talking about most or all of it? That could be impacted by the Supreme Court's decision and then who is president and which party is in charge of Congress. If there's divided government it may be difficult for everyone to agree on a replacement law in the event the Affordable Care Act is deemed unlawful.
Michael McCann:
So these are all things that are in some ways hard to predict until we know the outcome of the election. But clearly healthcare is a topic that's going to be a big deal in 2021. And if Obamacare is deeply constrained or outright invalidated will the Federal Government be in a position to come up with something in lieu of it quickly? And if not, what does that mean for people with preexisting conditions? Whether they're retired NFL players or whether there are people who get COVID, right? That could be a preexisting condition. Will that affect how they get insurance? These are really serious issues.
A. J. Kierstead (Host):
It's something that you obviously have covered a lot is name, image, likeness. I mean, it'll be an end case and you taught about it at our Intellectual Property Summer Institute this past summer, get that plug in there. Is there anything you see where a more conservative court might impact the future of copyrights and things like that?
Michael McCann:
Well that's a topic where it's hard to predict because I think it's not a political topic in a way, right? That there's a conservative... I mean, even privacy law, right? Republicans and Democrats can agree on certain aspects of privacy so I think that one's a little bit harder to predict. In the context of sports I would say most likely name, image and likeness is resolved by the NCAA with a push from Congress, but what I think we could see as a legal dispute would be if the NCAA's system for name, image, and likeness conflicts with that of California, Florida, other states that are adopting NIL Statutes, if they're more pro player than what the NCAA has in mind we could see litigation over that. And who knows, it could end up at the Supreme Court.
A. J. Kierstead (Host):
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