Remembering the Lessons of the Baseball Exemption in NCAA v. Alston

48 Rutgers L. Rec. 222 (2021) | WestLaw | LexisNexis | PDF

Introduction

It is somewhat ironic that the recently-granted Supreme Court appeal in National Collegiate Athletic Association (NCAA) v. Alston[1] falls so near the 100-year anniversary of Federal Baseball v. National League,[2] a well-debated opinion by the Supreme Court that gave a particular sports league—and, for decades only that sports league—broad immunity from the antitrust laws.  In doing so, the Court set up the field of sports antitrust law in a way that would position professional baseball apart from the other leagues to a degree that the Court would later remark is “unrealistic, inconsistent, or illogical.”[3]  Indeed, even a sitting member of the Court has remarked on the baseball exemption’s controversial nature, noting that Federal Baseball has been “pilloried pretty consistently in the legal literature since at least the 1940s.”[4]

      That sitting member of the Court, Justice Alito, did agree with commentary that Federal Baseball was mostly correct for its time; indeed he deemed a scholarly assessment of Federal Baseball’s criticism as “principally for things that were not in the opinion, but later added by Toolson and Flood,” to be “accurate.”[5]  As Justice Alito mentioned, the Supreme Court had “at least two opportunities to overrule the Federal Baseball case” and did so both times “over withering dissents.”[6]  Thus while Federal Baseball may not deserve its notorious reputation, decisions by the Court to continue to affirm the baseball exemption—especially while completely undercutting Federal Baseball’s legal underpinnings in Flood—are certainly fair game for questioning.[7]

      While the Alston Petitioners (the NCAA and member conferences) have strategically refused to frame it this way, this Supreme Court now—99 years after Federal Baseball—once again faces a question about whether to grant a request by a sports league for an antitrust exemption.[8]  But unlike in Toolson and Flood, the doctrinal history underpinning this case presents little basis for an argument of binding stare decisis based on past court decisions, as the language Petitioners continuously point to as what compels the courts to grant them “ample latitude” under the antitrust laws is merely dicta.[9]  After all—as the Ninth Circuit found—while the Supreme Court “certainly discussed the NCAA’s amateurism rules at great length” in Board of Regents, “it did not do so in order to pass upon the rules’ merits, given that they were not before the Court.”[10]

      The Court should hold firm to its decades of precedent strongly disfavoring implicit, court-made antitrust exemptions.  The Supreme Court has repeatedly noted a “heavy presumption against implicit exemptions” to the Sherman Act.[11]   Such powers should be reserved to Congress, who has thus far declined to grant the Petitioners that deference despite repeated opportunities to do so. In fact, such opportunities have only increased in recent years—with at least three separate public Senate hearings since July 1, 2020—with no signed bill or reported consensus.[12]

      At the heart of the Court’s justification for affirming the baseball exemption in Toolson was that “Congress . . . had [Federal Baseball]under consideration but has not seen fit to bring such business under these laws by legislation having prospective effect.”[13]  If that statement is true, its corollary must also be true: that since Congress has had plenty of opportunities to consider the Petitioners’ requests for antitrust immunity but “has not seen fit” to grant that request through legislation, this Court should cede to Congress’s inaction.[14]

      This Essay takes no position on whether the Ninth Circuit decision should be affirmed or overruled.  Instead, the position argued herein is that regardless of the Court’s conclusion in this case, the NCAA’s underlying assertions that they are entitled to antitrust immunity for amateurism-related activities based on the precedent of Board of Regents should be rejected.  As argued, Board of Regents provides no stare decisis on this point, and any approach by this Court that grants such antitrust immunity fails to consider the powerful lessons of the Court-enacted baseball antitrust exemption.


* Sam C. Ehrlich, J.D./Ph.D., Assistant Professor of Legal Studies, Boise State University College of Business and Economics. This Essay was submitted with some revisions as a merits-stage amicus brief in the discussed Supreme Court litigation. See Brief for Professor Sam C. Ehrlich as Amicus Curiae Supporting Neither Party, NCAA & Am. Athletic Conf. v. Alston, (2021) (No. 20-512, -520).

[1] No. 20-512 (2021). This litigation has been combined with a separate appeal by the NCAA’s member conferences. See Am. Athletic Assoc. v. Alston, 20-520 (2021). Both cases appeal In re NCAA Grant-in-Aid Cap Antitrust Litigation (Alston v. NCAA), 958 F.3d 1239 (9th Cir. 2020).

[2] Federal Baseball Club v. Nat’l League, 259 U.S. 200 (1922).

[3] Radovich v. Nat’l Football League, 352 U.S. 445, 452 (1957).

[4] Samuel A. Alito, Jr., The Origin of the Baseball Antitrust Exemption: Federal Baseball Club of Baltimore, Inc. v. National League of Professional Baseball Clubs, 34 J. Sup. Ct. Hist. 183, 192 (2009).

[5] Id. at 193 (quoting Kevin McDonald, Antitrust and Baseball: Stealing Holmes, 1998 J. Sup. Ct. Hist. 89, 122 (1998)); see also Toolson v. New York Yankees, 346 U.S. 356 (1953); see also Flood v. Kuhn, 407 U.S. 258 (1972) (affirming baseball’s antitrust exemption on the basis of stare decisis).

[6] Alito, supra note 4, at 192.

[7] See Flood, 407 U.S. at 282-84 (overruling Federal Baseball’s finding that professional baseball is not interstate commerce but keeping in place baseball’s corresponding antitrust exemption on the grounds of stare decisis and “a recognition and an acceptance of baseball’s unique characteristics and needs”).

[8] Alston, 958 F.3d 1239.

[9] See NCAA v. Board of Regents, 468 U.S. 85, 120A (1984). See also O’Bannon v. NCAA, 802 F.3d 1049, 1063 (9th Cir. 2015) (finding that “[t]he Court’s long encomium to amateurism [in Board of Regents], though impressive-sounding, was therefore dicta”).

[10] O’Bannon, 802 F.3d at 1063.

[11] Goldfarb v. Va. State Bar, 421 U.S. 773, 777 (1975).  See also California v. FPC, 369 U.S. 482, 485 (1962) (“Immunity from the antitrust laws is not lightly implied”); Group Life & Health Ins. v. Royal Drug, 440 U.S. 205, 231 (1979) (“It is well settled that exemptions from the antitrust laws are to be narrowly construed”); So. Motor Carriers Rate Conf. v. United States, 471 U.S. 48, 67 (1985) (“Implied antitrust immunities, however, are disfavored . . .”).

[12] See Exploring a Compensation Framework for Intercollegiate Athletics Before the S. Comm. on Com., Sci., and Transp., 116th Cong. (2020); Protecting the Integrity of College Athletics Before the S. Comm. on the Judiciary, 116th Cong. (2020); Compensating College Athletes: Examining the Potential Impact on Athletes and Institutions Before the S. Comm. on Health, Ed., Labor, and Pensions, 116th Cong. (2020).

[13] Toolson, 346 U.S. at 357.

[14] Id.


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The Right to Attentional Privacy

Introduction

48 Rutgers L. Rec. 206 (2021) | WestLaw | LexisNexis | PDF

What does a judge presiding over her court, a researcher working in an astronomical observatory[1], and a monk observing monastic silence have in common?  The answer is that they are all members of a small group of adults who go about their day without being continuously distracted by a smartphone, although admittedly on account of varied individual commitments and institutional constraints.  Unlike this unusual group, most of us spend our day in a continuous state of technology induced distraction. Claudia Roda notes, “the advent of information and communication technologies has dramatically shifted the balance between the availability of information and the ability of humans to process information.”[2]  We have migrated, albeit not seamlessly, from an age where information was scarce to an age where attention is scarce.[3]  Scarcity of attention has led to a slew of warnings from both experts and regulators about the addictive and distractive nature of technologies.[4]

Against the backdrop of this growing recognition of the importance of human attention and technology’s adverse impact on it, this paper seeks to formulate an ethical response to the challenges posed by the rise of the attention economy.  In this paper, I highlight the vital role played by attention in preserving individual autonomy.  I seek to protect this scarce human resource through a right to attentional privacy.  Privacy has been traditionally understood in informational context.  This paper’s chief contribution lies in articulation of a dual conception of right to attentional privacy, which keeps intrusive, immersive, persuasive, and addictive technologies at bay.  I begin by defining attention and then provide a brief account of previous attempts at formulating a freedom or right to attention.  I then highlight the techno-commercial practices adopted by Big Tech firms to harvest attention by configuring an individual’s choice environment through hypernudges[5] and deploying supernormal stimuli[6] to divert an individual’s attention towards artificial target of advertisements.[7].  I analyze the various forms of intrusive and addictive technologies before formulating a dual conception of positive and negative right to attentional privacy.


[1] Wayne Drash and Evelio Contreras, America’s Quietest Town where Cell Phones are Banned, CNN  (2015), https://edition.cnn.com/interactive/2015/07/us/quiet-town-american-story/Dan Levin, No Cell Signal, No Wi-Fi, No Problem. Growing Up Inside America’s ‘Quiet Zone’ N.Y. Times (Mar. 6, 2020), https://www.nytimes.com/2020/03/06/us/green-bank-west-virginia-quiet-zone.html.

[2] Claudia Roda, Introduction, in Human Attention in Digital Environments 1, 1 (Claudia Roda ed., 2011).

[3] See Michael H. Goldhaber, The Attention Economy and the Net, First Monday (Apr. 1997), https://firstmonday.org/ojs/index.php/fm/article/view/519/440/.

[4] See Bernadka Dubicka & Louise Theodosiou, Royal College of Psychiatrists, CR225: Technology Use and the Mental Health of Children and Young People (2020); Digital, Culture, Media & Sport Committee, House of Commons, Immersive and addictive technologies (2019).

[5] Karen Yeung, ‘Hypernudge’: Big Data as a mode of regulation by design, 20 (1) Information, Communication & Society 118, 122 (2017).

[6] Niko Tinbergen, The Herring Gull’s World: A Study of the Social Behavior of Birds 206-208 (Revised Ed. 1960).

[7] Yogi Hale Hendlin, I Am a Fake Loop: The Effects of Advertising-Based Artificial Selection, 12 Biosemiotics 131, 145 (2019).


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New York’s Green Light Law:

How Will The Law Stand Up Against Constitutionality Challenges?

48 Rutgers L. Rec. 191 (2021) | WestLaw | LexisNexis | PDF
On June 17, 2019, New York Governor Andrew M. Cuomo signed the “Driver’s License Access and Privacy Act” (“DPLA”), more commonly known as the “Green Light Law,” into law. The Green Light Law modifies New York’s vehicle and traffic laws by, inter alia, granting driver’s licenses and learner’s permits regardless of proof of immigration status. When New York passed the Green Light Law in 2019, it became the fifteenth United States state or territory to pass a law granting driver’s licenses and learner’s permits without considering the applicant’s immigration status.

To apply for a driver’s license or learner’s permit, applicants must fill out an application and return the application to their county department of motor vehicles office. Then the applicant must pass a written exam based on the New York State driver’s manual, which is available in a number of different languages. If the applicant applies for a learner’s permit and it is then issued, the applicant must still follow procedure by only driving with a supervising, licensed driver over the age of twenty one in the passenger seat, take a pre-licensing driving course and pass a road test in order to receive a license to drive alone.

The provisions of the law are currently being challenged in federal court by Michael Kearns, Erie County Clerk, and Frank J. Merola, Rensselaer County Clerk, with very similar arguments. This note seeks to analyze the federal challenges to the Green Light Law raised by the pending lawsuit brought by Kearns and the existing legal framework in place to resolve such challenges.
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Application- Reader Bias: Assessing State Agency Bias in the Context of Cannabis Law

48 Rutgers L. Rec. 166 (2021) | WestLaw | LexisNexis | PDF
New Jersey cannabis law is dynamic. In the weeks leading up to this note’s publication, the June 2019 RFA was released from its stay and DOH was permitted to resume scoring applications and New Jersey legalized the cannabis for adult use. Thus, this note serves as a road map for licensing ATCs under the new adult use legislation in New Jersey, or for other states that have yet to enact a comprehensive medical cannabis program. Part I of this note will introduce necessary background information that is germane to understanding the legal treatment of cannabis in New Jersey. More specifically, Part I will track New Jersey’s Medical Marijuana Program (“MMP”) progression, beginning with the January 2010 enactment of the New Jersey Compassionate Use Medical Marijuana Act (“CUMMA”) and concluding with the June 2019 RFA. Part II will examine the three ATC licensing processes states employ when the state restricts the amount of available licenses. Part III will analogize and distinguish case law examining the ATC license process in New Jersey, Colorado and Arkansas with caselaw examining college admissions decisions. Part IV will present potential solutions to New Jersey’s ATC licensing process, drawing guidance from Missouri. .
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The Integrity of Elections in the United States: Protecting Voters from Suppression, Technology, and Pandemics


48 Rutgers L. Rec. 142 (2021) | WestLaw | LexisNexis | PDF
Notwithstanding the United States’ challenges in protecting its voters, both domestic and foreign governments have found success in making voting accessible to all voters through blockchain voting. Blockchain voting is an online voting system that utilizes blockchain to protect data. State governments have used blockchain technology to facilitate voting for persons who would not otherwise have been able to vote. Foreign governments have begun integrating blockchain voting into their system of governance. However, insecurities still hang over our legislators as to whether blockchain voting can be trusted. This Article proposes that the U.S. should pass new laws that adopt blockchain voting. Specifically, the U.S. should, subject to certain rules, allow both federal and state governments to allow online voting through blockchain voting on platforms that are reputable, stable, and tested.
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Burgers, Chops, & Vegetable Crops: Constitutional Rights and the “War” on Plant-Based “Meat”


48 Rutgers L. Rec. 119 (2021) | WestLaw | LexisNexis | PDF

Plant-based “meats” are products that mimic the texture, flavor, and appearance of meat that comes from live animals. Tofurky uses terms like “chorizo,” “hot dogs,” and “ham” to describe its products. All of their products unambiguously indicate that they are plant-based, meatless, vegetarian, or vegan. This note will analyze the constitutionality of Act 501, and substantially similar laws that may threaten the constitutionally protected rights of Freedom of Speech and Due Process guaranteed under the First and Fourteenth Amendments. It will also analyze the possible implication of the Dormant Commerce Clause.

This article is comprised of four parts. Part I will focus on the new perceived “threat” and emergence of plant-based products and its place in the agriculture and consumer market. Part II will discuss the plaintiff’s First Amendment claim and the prayer for relief that allegedly protects freedom of speech and expression, which extends to the good faith labeling of food products. Part III will cover the Fourteenth Amendment Due Process violation the plaintiffs assert in their complaint and memorandum in support of plaintiff’s motion for preliminary injunction. The Due Process Clause of the Fourteenth Amendment prohibits against vague statutes. This note will also discuss what constitutes a vaguely written statute, including an assessment of whether or not the plaintiff could prevail on their motion for a preliminary injunction on that claim and additionally, whether or not a court would find the statute unconstitutional. Part IV will cover the public policy implications of upholding Act 501, and substantially similar laws in the United States, and reasons for possibly allowing environmentally friendly companies like Tofurky to promote, advertise and sell their products to the general public.

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Asymmetric Fees Awards in Civil Rights Litigation: A Critical Reevaluation


48 Rutgers L. Rec. 77 (2021) | WestLaw | LexisNexis | PDF

This article posits that the prevailing approach to attorneys’ fees — under which awards for defendants are appropriate only in extraordinary or extreme circumstances — rests upon increasingly archaic assumptions concerning legal practice and the significance of fee awards in encouraging private citizens to seek vindication of civil rights violations in a judicial forum. The fee recovery is not as important as it arguably once was in inducing competent plaintiffs’ counsels to undertake legal representation in civil rights disputes, which casts doubt on the principal public policy rationale for fee-shifting statutes themselves. For example, plaintiffs are now better able to maintain complex or prolonged litigation as a result of changes in ethics rules that enable attorneys to undertake matters on credit or through litigation funding. Additionally, technological advances in discovery and other essential legal processes increasingly allow firms with limited resources to operate more efficiently, thereby significantly neutralizing any resource advantages large defense firms may possess. The prevailing judicial orientation toward fee-shifting also disregards the influence of powerful societal trends, which have heightened sensitivity to the existence and harm of discriminatory practices and provide a powerful independent incentive for counsel to undertake representation in civil rights matters.

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Giving Working Parents the Opportunity to be the MVP of an IEP Team


48 Rutgers L. Rec. 58 (2020) | WestLaw | LexisNexis | PDF

On August 8, 2019, the United States Department of Labor (“DOL”) issued three opinion letters, which are official, written opinions composed by the Wage and Hour Division of the DOL, that interpret “how a particular law applies in specific circumstances presented by the individual person or entity that requested the letter.” Two of the letters released in August 2019 addressed compliance issues related to the Fair Labor Standards Act (“FLSA”), and the third letter addressed a compliance issue related to the Family and Medical Leave Act (“FMLA”). FMLA2019-2-A, the letter regarding compliance with the FMLA, responded to an employee’s request for an opinion on “whether an employee may take leave under the Family and Medical Leave Act (FMLA) to attend a Committee on Special Education (CSE) meeting to discuss the Individualized Education Program (IEP) of the employee’s son or daughter.” Based on the facts presented by the requesting employee, the Wage and Hour Division concluded that attendance at such meetings is indeed a qualifying reason to take intermittent leave under the FMLA.

This paper analyzes the conclusion presented in the above-detailed opinion letter and explores why a parent should undoubtedly be able to take leave under the FMLA to attend meetings concerning their child’s educational and special medical needs. Further, this paper seeks to explore why a parent’s attendance at such meetings constitutes essential care for a family member with a serious health condition within the meaning of the FMLA. Finally, this paper seeks to explain the implications of FMLA2019-2-A on employers. Although DOL opinion letters are not binding, it is essential for employers to treat this opinion as if it were in order to promote the well-being of employees with children who are entitled to special education services in public schools.

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Moral Imitation: Can An Algorithm Really Be Ethical?


48 Rutgers L. Rec. 47 (2020) | WestLaw | LexisNexis | PDF

Introduction of algorithms in the realm of public administration bears the risk of reducing moral dilemmas to epistemic probabilities. This paper explores the interlinkages between attribution of moral agency on algorithms and algorithmic injustice. While challenging some of the fundamental assumptions underlying ethical machines, I argue that the moral algorithm claim is inherently flawed and has particularly severe consequences when applied to algorithms making fateful decisions regarding an individual’s life. I contend that free will, consciousness and moral intentionality are sine qua non for any moral agent. A well-known objection to the Turing Test is cited for the proposition that, while an algorithm may imitate morality, an algorithm cannot be ethical unless it understands the moral choices it is making. I raise a methodological objection regarding transposing moral intuitions on algorithms through global surveys. I cite the ‘consciousness thesis’ for the principle that without consciousness there cannot be moral responsibility. Moral justifications form the bedrock of legal defenses. In the absence of moral agency and the algorithm’s inability to be held morally responsible, any attempt by the firms developing and/or deploying the algorithm to escape accountability is untenable. I highlight the grave cost of masking algorithmic injustices with ethical justifications and argue for strict liability for any firm deploying algorithms in the public policy realm.

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Awarding A Plaintiff A Defendant’s Profits In Trademark Infringement Actions: Why Courts Should Universally Apply The Bright-Line Rule Requiring Willful Infringement


48 Rutgers L. Rec. 25 (2020) | WestLaw | LexisNexis | PDF

This note seeks to analyze the issue of whether, under Section 35(a) of the Lanham Act, willful infringement should be a prerequisite for an award of an infringer’s profits for a violation of Section 43 of the Lanham Act, 15 USC § 1125. This note argues in favor of the bright-line rule requiring that a plaintiff prove willful infringement as a prerequisite for a court to grant the remedy of infringer’s profits in instances of trademark infringement arguing a likelihood of confusion. In doing so, this note will consider the legislative intent behind the Act, analysis of relevant precedential case law, and the effective outcome of such a decision. For the purposes of this note, “trademark infringement” is synonymous with a likelihood of confusion action.

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