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Too bad final exams just ended, because the College Sports Reform Committee proposal (reported by @RossDellenger) could torment law students with the number of fascinating legal issues raised.
In short, the proposal’s objective to “tak[e] action without risk of litigation” is probably wishful thinking, because the proposed antitrust exemption doesn’t protect against many other issues.
Outlining a few below, starting with (perhaps?) the most novel the proposal raises:
1. A Takings Case?
The proposal includes a new Permanent Governing Body that would “evaluat[e] the effectiveness” of the NCAA/CFP/CSC not only for governance but also over the economics of college sports. This sounds like a possibility that the NCAA/CFP or other stakeholders could lose control of valuable media or other economic rights.
The Constitution’s Fifth Amendment prevents the government from “taking” private property unless it can demonstrate a public good and, if it can, it must at least pay just compensation. A classic example is when the state takes title to private land in the path of a new highway.
This constitutional protection extends to intangible property rights besides land. Could a new Task Force effectively taking over the business of college sports- and the billions at stake- give rise to a “takings” lawsuit from whatever stakeholder loses control?
2. More Constitutional Issues
@samcehrlich has published an article suggesting that creating the Task Force itself might be unconstitutional, since that body would receive significant legislative power.
Sam and his colleagues @nealcternes and @sabo21 have also written (recently published by @MattBrownEP) on another issue: whether the NCAA could be deemed a “state actor.
Placing the Task Force inside the NCAA subject to Congressional oversight could make the NCAA more like a “state actor” such that it owes constitutional duties like due process.
Per Sam/Neal/Joe, this has significant ramifications in how the NCAA can discipline schools, athletes, coaches if every time it hands down punishment, the NCAA can be sued over whether the process comported with constitutional due process. The NCAA won an important 1988 case against Jerry Tarkanian to avoid that obligation, but could it be revisited?
3. The Employment Question
The most glaring omission from the proposal is athlete employment. This has been a major sticking point in college sports reform. An antitrust exemption does nothing to prevent athletes from seeking employee status, either for minimum wage (FLSA) or to unionize (NLRA).
In fact, the proposal probably strengthens the argument that some athletes in major revenue sports are employees.
If athletes can unionize as employees, any Task Force rules regarding wages, hours, and terms of employment (read: a ton of stuff) won’t matter. Schools will have to negotiate those with athletes.
4. Contracts
How will the Task Force and new governance handle pay-for-play? @heitner has written at length on NIL contract details in real life and whether some provisions suggest p4p arrangements, which @profgoose has analyzed in his ongoing analysis of college sports’ political/legal architecture. P4p has employment implications too.
Also in the contract realm- recall that some athletes like Trinidad Chambliss won eligibility lawsuits by arguing that they are 3rd party beneficiaries of a contract created by the NCAA rules. In other words, the NCAA owes athletes a duty to apply its rules fairly (like Chambliss’ eligibility waiver rule).
Could this remain a legal avenue for athletes to challenge Task Force rules they believe are unfairly applied?
5. Title IX
Title IX, which requires that schools provide equal athletic opportunities and benefits to male & female athletes, still looms as potentially disrupting the entire proposal. One of the Task Force’s stated goals is to protect Olympic and women’s sports, but distribution of revenue to athletes is still an unsettled Title IX question.
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