When Congress passed the Sherman Act in 1890, professional football did not exist, basketball had not been invented, and the National Collegiate Athletic Association (NCAA) was yet to be born. That all five of the Essays in this Symposium deal in one way or another with the intersection of antitrust law and professional or collegiate sports is a testament to the enduring relevance of the Sherman Act in face of changing market realities. Two of the Essays explore the competing claims of antitrust law and labor law to the relationship between professional athletes and the leagues that employ them. In Brady v. NFL and Anthony v. NBA: The Shifting Dynamics in Labor-Management Relations in Professional Sports, Professor Gabriel Feldman analyzes professional athletes' recent resort to antitrust law to counteract the leagues' use of offensive lockouts to gain salary concessions from players' unions. Feldman traces the development of the nonstatutory labor exemption from the antitrust laws, which the United States Supreme Court created to exempt restraints on competition imposed through the collective bargaining process from antitrust scrutiny and later extended to certain postimpasse conduct. Feldman explains that although the Court said that the antitrust exemption lasts only until the “collapse of the collective-bargaining relationship,” recent cases posed the still unanswered question whether players can avoid the exemption by dissolving their unions and then challenging lockouts under the antitrust laws. Feldman examines the arguments on both sides of the issue and concludes that its resolution will decide the trajectory of labor relations in professional sports. In The Narcotic Effect of Antitrust Law in Professional Sports: How the Sherman Act Subverts Collective Bargaining, Professor Michael H. LeRoy argues that professional football and basketball players have become “addicted” to subverting collective bargaining by seeking court intervention under the antitrust laws in disputes with management. He contends that repeated resort to the antitrust laws provides a “habit forming” release from the obligation of hard and responsible bargaining. In his view, this de facto displacement of collective bargaining undermines the salutary purposes of the National Labor Relations Act, which is to leave management and labor free from government interference as they adjust their differences.
Radical Reform of Intercollegiate Athletics: Antitrust and Public Policy Implications
Universities operating major intercollegiate athletic programs are heading for, if not already in, a crisis. Corruption continues to affect major football and basketball programs, exacerbated by a failure of imagination and will in identifying and deterring corruption, and by a lack of consensus on what constitutes “corruption” when football and men's basketball stars generate millions of dollars but cannot enjoy a lifestyle commensurate with many peer students. Current levels of spending are nonsustainable at many schools. Even where intercollegiate athletic programs are sustained primarily by football and basketball revenues, otherwise visionary and questioning college presidents have yet to publicly question why these revenues should subsidize nonrevenue sports at the expense of financially pressed classroom activities. Contrary to the NCAA Constitution, major football programs do not operate “in keeping with prudent management and fiscal practices.” This Essay sets forth an agenda for reform, explains why the agenda reflects sound public policy, and analyzes why and how the NCAA can implement the agenda in a manner consistent with the Sherman Antitrust Act. It builds upon four foundational principles: (1) prudently managed, self-sustaining intercollegiate sports are legitimate; (2) intercollegiate sports programs that are not self-sustaining have no greater claim on the surplus proceeds from the activities of other sports programs on campus than any other educational program offered by the university; (3) the equal opportunity purposes that underlie Title IX should be maintained; and (4) whatever the additional societal benefits that may result from Division I nonrevenue sports, they do not justify the cost of operating those sports, having regard for the societal benefits that can be achieved by operating these sports at the equivalent of an elite club or Division III level. Applying these foundational principles in light of the problems facing intercollegiate athletics, this Essay offers a five-part Charter of Reform for intercollegiate athletics: (I) end subsidies for men's sports at the Division I level; (II) operate sufficient women's Division I sports to provide female students with sports opportunities equal to male students; (III) offer other sports on an equal basis to male and female students, limited to financial aid only for financial need or academic merit independent of athletic ability, with significant restrictions on coaching and travel; (IV) allow all scholarships to be partial or full and reduce football scholarship totals to fifty-five; and (V) permit up to one and one-half scholarships for the most elite athletes.
From Dallas Cap to American Needle and Beyond: Antitrust Law's Limited Capacity to Stitch Consumer Harm from Professional Sports Club Trademark Monopolies
A nearly fifty-year contemporaneous trend of increasing legal protection for sports team trademarks, collective exclusive licensing of professional sports team trademarks, and antitrust litigation regarding its validity culminated in the United States Supreme Court's 2010 decision American Needle, Inc. v. NFL, which rejected the NFL's single-entity defense. Collective exclusive trademark licensing by professional sports leagues generally does not have significant incremental anticompetitive effects beyond the consumer harm already caused by each individual club's lawful trademark monopoly, which likely are outweighed by procompetitive benefits in many instances. However, in order for antitrust law to minimize the consumer harm caused by the extension of trademark law protection beyond its traditional boundaries to create professional sports club trademark monopolies, the collective granting of exclusive product category licenses should be invalidated under the quick-look rule of reason because this restraint has clear anticompetitive effects that are not necessary to achieve legitimate procompetitive justifications and/or which may be achieved by a substantially less restrictive alternative.
Many-to-Many Contracts
In classical contract law, the concept of one-to-one negotiations is familiar: contracts where one party negotiates with the other and, eventually, terms are offered and then accepted. More modern times have made us comfortable with the notion of one-to-many contracts: contracts typically drafted by large corporations and then distributed on a take-it-or-leave-it basis to the masses. This Article discusses a third kind of contract: a many-to-many contract, which may look like the standard one-to-many contract in that it is composed of nonnegotiable language. But when the arrangements between the parties are further considered, we will see that the point of the contract is not for one party to impose its terms on another without question, but for a series of parties to determine the best way to facilitate interchange. In such situations, imposing standard doctrines of contract interpretation may frustrate the purpose of the contract entirely, and for that reason, courts should approach the interpretation of these contracts with care.
I'll Believe it When I C It: Rethinking 501(c)(3)'s Prohibition on Politicking
The United States Supreme Court's decision in Citizens United v. FEC challenged fundamental notions of free speech jurisprudence. While many commentators have focused on the decision's implications for corporate speech, this Comment examines whether the new First Amendment paradigm announced in Citizens United will challenge current speech restrictions on churches and other entities organized under § 501(c)(3). Not only does this Comment propose that such restrictions could potentially be invalidated based on the Court's reasoning in Citizens United, but also that practical factors relating to compliance and enforcement problems inherent in § 501(c)(3) indicate the ban should be amended. This Comment concludes by offering a proposed change to § 501(c)(3)'s politicking ban that would allow a § 501(c)(3) organization to engage in “some” amount of politicking, as long as it was not a substantial part of the organization's overall charitable activity.
Juvenile Criminal Responsibility: Can Malice Supply the Want of Years
Can the young be held accountable for their crimes? At common law, juveniles were entitled to a presumption of incapacity, but were subject to criminal liability on an individualized basis: demonstrated malice supplied the want of years. In Graham v. Florida, the United States Supreme Court rejected this principle and held that juveniles categorically could not be sentenced to life without parole for crimes other than homicide. This Article argues that embedded in the Court's holding is a simplifying assumption about the relative maturity of juveniles and adults and a moral claim about the culpability of homicides and nonhomicides—both this assumption and this claim are demonstrably false in a nontrivial number of cases.
This Article focuses on the facts of some of these cases. One cannot assess the culpability of particular defendants unless one considers, without artful euphemisms or convenient elisions, what they did. And what certain crimes reveal is that there are violent juvenile offenders—fortunately rare—who are at least as mature and culpable as the typical adult violent offender. The Article also considers lower court applications of Graham and finds, in many instances, marked skepticism. The Supreme Court's general theory of juvenile immaturity has failed to impress judges confronting particular cases. The Court's central claim about the relative culpability of adult and juvenile offenders originates from a failure to confront inconvenient facts and a belief that human nature is sufficiently captured by the three standard deviations that surround one's own experience in the world. Lower court judges have access to a wider data set in reaching contrary conclusions.
Breaking the Grip of the Administrative Triad: Agency Policy Making under a Necessity-Based Doctrine
The justification for the modern American administrative state is built on a belief that (1) limited congressional delegation, (2) cabined executive discretion, and (3) properly exercised judicial deference are akin to the system of checks and balances established by the nation's Founders. In this Article, I propose that the time has come to rid ourselves of this legal fiction, particularly as it has developed in two well-known (and highly criticized) lines of administrative cases: the United States Supreme Court's Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., jurisprudence and the United States Court of Appeals for the District of Columbia Circuit's cases wrestling with the use (or misuse) of nonlegislative rules by agencies. In its place, I propose the creation of a “Necessity Doctrine.” Unlike the constitutional branches of government, agencies are tasked with a much narrower objective within our system: to enable the enforcement of congressional directives through application of expertise, practicality, broad stakeholder input, and inclusion of political considerations. To restore the value of administrative process, we must limit the exercise of that process to those matters that necessitate the use of these bureaucratic tools and deny the urge to rely upon agencies as a surrogate for properly exercised judicial and legislative power.
The Illusion of Amateurism: A Climate of Tortious Interference in the World of Amateur Sports
When a player-agent pays an NCAA-eligible player in violation of NCAA regulations, the agent usually suffers no consequences. Instead, players and the universities they attend are sanctioned, often harshly. Attempts to find a solution to this problem--NCAA regulations, regulations of professional players associations, and state and federal legislation--have thus far been unsuccessful. There is a potential remedy, however: the tortious interference with contractual relations claim. When a gifted student-athlete decides to attend and play a sport at an NCAA-member university, the student-athlete typically receives a scholarship offer from the school and signs a National Letter of Intent. This Comment establishes that these documents together create a binding contractual relationship between the university and student-athlete. Thus, this Comment concludes, by dealing with a student-athlete in a manner that causes the student-athlete to violate his or her contractual obligation to follow NCAA regulations, the agent improperly interferes with this contractual relationship, opening the agent up to liability to the university for tortious interference with contractual relations. Finally, this Comment analyzes why universities largely have not yet taken advantage of this promising claim.
Emergence of a Deportation Gideon: The Impact of Padilla v. Kentucky on Right to Counsel Jurisprudence
In Padilla v. Kentucky, the United States Supreme Court imposed a Sixth Amendment mandate on criminal defense attorneys to warn their clients of the immigration consequences of a criminal plea. Rooted in Sixth Amendment precedent, the Court's new constitutional requirement arose principally out of its concern that the unique nature of immigration consequences required heightened due process protections. This Comment analyzes Padilla's specific impact on the concept of a right to appointed counsel in deportation proceedings. Although no deportation Gideon right existed before Padilla, signs indicate that the Court may be willing to revisit the issue. After explaining Padilla's relation to right to counsel jurisprudence, the Comment explores how the Court's newly heightened concerns over due process protections in immigration proceedings will affect its future analysis of the right as applied to the immigration context. This Comment concludes with an analysis of the manner in which the Court might come to recognize a categorical right to counsel in deportation proceedings.
Transnational Class Actions and the Illusory Search for Res Judicata
The transnational class action—a class action in which a portion of the class consists of non-U.S. claimants—is here to stay. Defendants typically resist the certification of transnational class actions on the basis that such actions provide no assurance of finality for a defendant, as it will always be possible for a non-U.S. class member to initiate subsequent proceedings in a foreign court. In response to this concern, many U.S. courts will analyze whether the “home” courts of the foreign class members would accord res judicata effect to an eventual U.S. judgment prior to certifying a U.S. class action containing foreign class members. The more likely the foreign court is to recognize a U.S. class judgment, the more likely an American court will include those foreigners in the U.S. class action.
Current scholarship accepts propriety of the res judicata analysis but questions the manner in which the analysis is carried out. This Article breaks from the existing literature by arguing that the dynamics of class litigation render the res judicata effect of an eventual U.S. class judgment inherently unknowable to a U.S. court ex ante. In particular, I argue that certain “litigation dynamics”--specifically the process of proving foreign law via experts, the principle of party prosecution, and the litigation posture of the action--complicate the transnational class action landscape and prevent a court from accurately analyzing the res judicata issues at play. This is exacerbated by the “structural dynamics” of class litigation: the complexity of foreign law on the recognition and enforcement of judgments, the newness of class action law in most foreign countries, and the distinction between general and fact-specific grounds for nonenforcement of a U.S. class judgment. Accordingly, I argue that U.S. courts should abandon their illusory search for res judicata.
Instead, courts should avoid the res judicata problem altogether by employing an opt-in mechanism for foreign class plaintiffs, whereby such plaintiffs are not bound unless they affirmatively undertake to be bound by U.S. class judgment. An opt-in mechanism for foreign plaintiffs also provides several advantages over the current opt-out mechanism: it allows all foreign claimants to participate in U.S. litigation if they so choose; it provides additional due process protections for absent foreign claimants; it respects international comity; and it sufficiently deters defendant misconduct.