Neil Gorsuch is likely not a name that means much to sports fans. But as President Donald Trump’s nominee to fill the ninth seat on the Supreme Court, this conservative legal scholar could end up altering the landscape of American sports.
Assuming he can survive presumably contentious confirmation hearings, Gorsuch will take the spot previously occupied by the late Antonin Scalia, breaking the 4-4 split between the current court’s liberal and conservative justices.
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With cases in the Supreme Court pipeline concerning legalized sports betting, paying college athletes, and the legitimacy of arbitrations—remember Deflategate?—Gorsuch’s potential impact is significant.
Gorsuch appears to adhere to a strict textualist view of the law, and does not sway based on political pressure. By all accounts, the current 10th Circuit Judge—who holds degrees from Columbia, Oxford, and Harvard Law, and clerked for two Supreme Court justices—is not one to succumb to Twitter attacks questioning his legitimacy. In fact, as he said at the White House while accepting Trump’s nomination, “a judge who likes every outcome he reaches is very likely a bad judge.”
So what does this mean for sports?
Although Gorsuch has not authored any opinions on cases specifically dealing with athletics, his strong federalist viewpoints and conservative leanings signal how he likely would on the following key issues.
Legal Sports Gambling
One of the first issues Gorsuch may face is whether to declare the much-maligned Professional and Amateur Sports Protection Act (PASPA) unconstitutional—thereby legalizing sports betting across the nation.
Currently, the Supreme Court is considering whether to hear an appeal brought by Governor Chris Christie on behalf of New Jersey to legalize sports gambling within the state. The dispute made its way to the Supreme Court via two cases now consolidated as one: Christie v. NCAAand New Jersey Thoroughbred Horsemen’s Association v. NCAA. New Jersey argues that PASPA, a federal law that bans sports betting outside of grandfathered states such as Nevada, unconstitutionally commandeers the state’s regulatory power.
The case is a golden opportunity for a states’ rights champion like Gorsuch to leave his mark, since it raises issues about commandeering, equal sovereignty of states, and even the selective federal enforcement of PASPA, given that sports betting is outlawed but Daily Fantasy Sports are somehow permissible.
“This case transcends sports betting and is a part of a much broader debate on the powers and limits of federal authority,” says Daniel Wallach, an attorney and sports gambling law expert. “New Jersey’s challenge to PASPA could be a vehicle for conservatives to flesh out the commandeering powers. It is not just a simple policy issues as to whether sports betting is good or evil. It is a true constitutional issue that is right in the federalism wheelhouse.
“I believe a conservative Justice like Gorsuch and a conservative Solicitor General are more likely to want to see the case heard. If you are playing the odds here, signs would point to the Court granting cert.”
Indeed, a grant of certiorari to hear the merits of the case—something the Court only does for about one percent of the 7,000 cases appealed to it each year—appears likely. Last month, the Court called for the views of the Solicitor General, which means that the current eight justices believe that the case is significant enough to ask the federal government to weigh in, even though it isn’t a party to the original lawsuit.
Historically, when the Court calls for the views of the Solicitor General, it almost always then hears the case—according to Wallach, in each of the last 20 times the Solicitor General has recommended for the Court to grant certiorari, the Court has done so.
“At this point, who President Trump nominates as Solicitor General is even more important than the ninth Supreme Court Justice,” Wallach says. “The next Solicitor General is the critical gatekeeper on the initial question as to whether the Court hears the merits of the case or not. So this is a rare opportunity for Trump to directly leave his mark on the issue of sports betting.”
When the action is the juice. Photo by Bill Streicher-USA TODAY Sports
Trump openly campaigned for legal sports betting when he was an Atlantic City casino owner and possibly still wants to throw a political bone to Christie, who is treating this case as a legacy defining one. Gorsuch’s selection over Thomas Hardiman, who was considered the other finalist for the Supreme Court nomination, also provides a boost to the potential for legal sports betting. Hardiman voted against New Jersey when the matter was in front of the Third Circuit last year.
Had Hardiman become the ninth Supreme Court Justice, he would have had to recuse himself from the case. Consequently, New Jersey would have needed to win five of eight judges, since a 4-4 tie would leave in place the Third Circuit’s prior decision.
With Gorsuch, sports betting advocates now have a sympathetic ear and a chance at actually succeeding on the merits—assuming the Solicitor General aligns with Trump’s prior desire to legalize sports betting.
“It has not come this far for Donald Trump to fumble the snap,” Wallach says. “He has been given an opportunity to immediately change the landscape of sports betting in this country without requiring an act of Congress. This is a slam dunk I do not believe he will miss.”
Paying College Athletes
Further down the line, it is quite likely that Gorsuch will have to decide one or more cases involving the NCAA. Yet as history has shown, political ideology is not always a strong predictor of college sports case outcomes.
Almost thirty years ago, the Supreme Court weighed in on whether the NCAA had to provide due process in its disciplinary enforcement procedures. In a surprising 5-4 vote, Justice John Paul Stevens sided with the conservatives in declaring that the NCAA, as a private entity, did not have to adhere to the due process requirements of the 14th Amendment in NCAA v. Tarkanian.
The NCAA has since used that decision to punish athletes and coaches in draconian fashion, with zero regard for basic notions of fairness. Now known as a liberal champion, Justice Stevens’ vote in Tarkanian likely will forever harm college athletes and tarnish his legacy among liberals who expected a different outcome.
Within the next few years, Gorsuch’s vote could possibly do the same—at least when it comes to paying college athletes. Currently, there are several significant cases percolating in the lower courts that seek to essentially eliminate the NCAA amateurism as we know it.
The case that made the most recent headlines was O’Bannon v. NCAA. After years of litigation, the 9th Circuit determined that the NCAA’s rules prohibiting student-athletes from being paid for the use of their names, images, and likenesses constituted an unlawful restraint of trade in violation of the Sherman Antitrust Act. Although proposed $5,000 per-year trust fund payments to athletes were struck down on appeal, the decision stripped the NCAA of its long-claimed antitrust immunity by subjecting it the “Rule of Reason” test—basically, the association could no longer claim amateurism protected it from antitrust claims because, well, amateurism.
O’Bannon was a monumental shift, because the NCAA had successfully claimed since 1984 that it was immune from antitrust scrutiny due to a few lines of dicta in the Supreme Court’s decision in NCAA v. Board of Regents of the University of Oklahoma. The NCAA petitioned the Supreme Court to hear its O’Bannon challenge, but in October the Court declined and denied certiorari.
In the wake of O’Bannon, several other antitrust lawsuits have sprung up that seek to go even further. These will almost certainly lead to challenges all the way to the Supreme Court.
For example, just last week, the NCAA agreed to pay a $208.7 million settlement in Alston v. NCAA. The lawsuit, brought by former West Virginia running back Shawne Alston, alleged the NCAA and the Big 5 Conferences had violated antitrust law by capping the value of athletic scholarships below the actual cost of attendance. The settlement pays the athletes who were improperly short-changed prior to the Power Five conferences raising scholarship limits to cover full cost of attendance.
However, the settlement does not affect another portion of Alston or a similar case brought by renowned sports lawyer Jeffrey Kessler, Jenkins v. NCAA, that seek to remove all limits on college athlete compensation. In those cases, the plaintiffs are seeking injunctions to stop the NCAA from placing caps on what an athlete can receive. Essentially, they want a free-agency model in which athletes are paid whatever they can command in a free market, with schools bidding for their services.
U.S. District Court judge Claudia Wilken, who oversaw the O’Bannon case, is also handling Alston and Jenkins. Given the athlete-friendly nature of the 9th Circuit, the NCAA could lose—and if it does, it already has declared that it will appeal to the Supreme Court.
That’s where Gorsuch comes in. He has had limited dealings with antitrust cases thus far, but in two major instances he has declined to find antitrust violations.
In Novell, Inc. v. Microsoft Corp., Gorsuch found that Microsoft did not violate the Sherman Act when it refused to share intellectual property with rival, Novell. Gorsuch famously wrote, “antitrust laws rarely impose on firms – even dominant firms – a duty to deal with their rivals.” Also, in Four Corners Nephrology Associates, P.C. v. Mercy Medical Center of Durango, Gorsuch determined that a hospital’s refusal to allow a doctor to uses its facilities while underwriting the losses of that doctor’s competition was not an antitrust violation.
Although Gorsuch declined to find antitrust violations in these instances, there is nothing in his published jurisprudence that would suggest he would not at least openly consider challenges by NCAA athletes based on economic analysis, rather than merely siding with preserving the antiquated notion of amateurism. If Wilken’s O’Bannon decision is any guide, that could prove helpful to pay-for-play advocates.
“More learned individuals, especially in the field of antitrust, generally oppose bright line rules of either legality or illegality and prefer economic analysis,” says antitrust scholar and law professor Marc Edelman. “It’s doubtful Judge Gorsuch would take seriously any claims that the NCAA’s purported restraints of trade are immune from antitrust scrutiny.”
Neil Gorsuch is a top-notch conservative legal mind, and also prime Nexium spokesmodel material. Photo courtesy of Wikipedia
Assuming Gorsuch maintains an independent legal analysis and does not succumb to conservative political pressure to shackle college athletes in the status quo—despite their oft-professed love of free markets, bootstrapping, and job creation, Congressional GOP members have been publicly hostile to the idea of college athlete pay-for-play, possibly because they associate it with unions—he could cast the tie-breaking vote on these significant antitrust issues.
Of course, if there is any chance of the NCAA’s future falling into the hands of the Supreme Court, look for the newly formed college athletic director political action committee, LEAD1, to join the association in lobbying Congress for a legislative shield from antitrust claims.
Arbitration Nation
Whether Gorsuch has watched a single down of football in his life or not, there is no doubt that he is well aware of Deflategate. Putting aside Roger Goodell’s Napoleon Complex and Tom Brady’s balls, the core of the case involved the sanctity of arbitration clauses. Ultimately, the seemingly unfair NFL arbitration process in which Goodell served judge, jury, prosecutor, and executioner on player discipline matters was upheld, all because the NFL Players Association agreed to it in the league’s Collective Bargaining Agreement.
Although the NFL’s system was the product of a terrible agreement negotiated by a historically weak union, the bottom line was that all parties signed off on it.
This is why the 2nd Circuit Court of Appeals denied Brady’s request for a rehearing last summer after a 2-1 decision upholding his four-game suspension. Writing for the majority, Judge Barrington Parker, Jr., a George W. Bush appointee, remarked, “If it is seriously believed that these procedures were deficient or prejudicial, the remedy was to address them during collective bargaining. Had the parties wished to otherwise limit the arbitrator’s authority, they could have negotiated terms to do so.”
Following the decision, rumors flew that Brady would appeal to the Supreme Court. Ultimately, the NFLPA and Brady decided not to petition the Supreme Court, likely because they would have lost.
There is certainly no evidence to suggest that Gorsuch would rule differently than Parker. In 2016, he upheld the sanctity of bargained-for arbitration provisions while dissenting in Ragab v. Howard.
Moving forward, all unionized athletes should pay closer attention to the arbitration provisions in their collective bargaining agreements—because if Gorsuch is confirmed, those provisions likely will survive judicial challenges. Gorsuch’s deference to arbitration provisions is also significant to consumers of just about any product, because buried deep in almost all user agreements and contracts is an arbitration clause precluding consumers from pursuing civil lawsuits or class actions.
This will be a central issue as the dozens of class actions against daily fantasy sports operators DraftKings and FanDuel move forward, as each site’s Terms of Use contain a mandatory arbitration provision.
The Supreme Court made it clear in American Express Co. v. Italian Colors Restaurant that such arbitration provisions are binding and enforceable. In American Express, Justice Scalia wrote the majority opinion stating that even if arbitration is too costly and difficult, it is still an option, so suck it up and arbitrate. In 2015, the Court again upheld the supremacy of binding arbitration clauses in DirecTV, Inc. v. Imburgia.
At this point, appears that Gorsuch holds similar views to Scalia. So if a challenge to arbitration clauses arises in a consumer class action context or from a union’s CBA, the Supreme Court like wouldn’t overrule itself. That’s good news for corporations and sports leagues, and not so good news for any athletes or consumers facing an uphill arbitration battle.
Overall, Gorsuch is a conservative intellectual who perceives government through a Federalist lens. Although perhaps less confrontational than Scalia, Gorsuch is by all accounts very similar—which means that if he’s confirmed, he’ll essentially restore the status quo to the Court.
Or will he? History shows that once a judge makes it to the Supreme Court, they are beholden to no one. Sometimes they end up ruling exactly as you’d expect—but sometimes, they don’t. That uncertainty could actually lead to heavier lobbying by the NCAA and professional sports leagues to create a revised federal regulatory framework for sports betting and college sports amateurism before Gorsuch can weigh in on potential cases.
Absent a nuclear war started by some errant presidential Tweets, the upcoming Supreme Court terms promise some major potential changes for sports. Gorsuch will be right in the middle of them.
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