US: Merrick Garland’s potential impact on NCAA court cases

President Obama’s nomination of Merrick Garland, the Chief Judge of the US Court of Appeals for the District of Columbia, to Associate Justice of the US 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 US District Court for the Northern District of California in 2014 and second in the US 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 US Supreme Courtto 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 US District Judge Claudia Wilken and one day might work its way to the Supreme Court.

Full content: Sports Illustrated

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