Mark Emmert Says Ignore The Supreme Court
I mean, he's correct that people shouldn't give much judicial weight to a concurrence as compared to the actual decision passed down by SCOTUS. I'm not a particularly big fan of Kavanaugh or his jurisprudence, and even though I agree with some of his sentiments in his writing it's not unlike a dissent in that he couldn't get a majority of judges to sign off on how broad he wanted to make this ruling. Now, Emmert is an idiot if he thinks this doesn't signal a potential direction for the court going forward, but SCOTUS decisions are lousy with judges rambling on their own takes that don't hold judicial precedence.
I think you're minimizing the importance of the concurrence by eliding a key fact. A concurrence is obviously not the majority opinion, but as the majority said, the reason they did not reach the issue of the NCAA's restrictions writ-large was because the plaintiffs declined to raise the issue again after it failed at the 9th circuit.
Kavanaugh is signaling that he would support a challenge to the NCAA's amateurism policies in general. That's just one justices words, but in this case, it's also a very strong signal and it's quite easy to see at least 3 more votes for his position should a case get to the Court again.
I would be extremely nervous about another case reaching the Supreme Court if I was the NCAA.
The easiest way to "see at least 3 more votes for his position" would have been ...... for 3 more Justices to put their name to his concurring opinion. Nothing stopped them today.
I doubt Kavanaugh went looking for others to sign on to his concurrance. He just put his own thoughts out there. A shot across the NCAA's bow. They've been warned, show up here again and we may well put a shell down your funnel.
Kavanaugh easily the most knowledgable justice on how NCAA operates, I think that he will get ears of his colleagues.
that's not how SCOTUS works. they do go looking for signatures, even for concurrences. opinions get circulated again and again before they're published.
Not necessarily.
Justices as a matter of routine formally issue their own thoughts even if it is a part of the majority ruling.
See Clarence Thomas
Something may have stopped them. To join his concurrence wouldn't simply mean agreement, it's a well-considered decision to indicate putting their name to a particular line of reasoning.
So others may have agreed or disagreed or decided the point wasn't worth pursuing at this point. Or they think he's a putz and want to wait to link their name to someone else's opinion later.
I'm not a SCOTUS expert, but is it possible that the other Justices did not want to sign on to the concurring opinion because they don't want to be on record so strongly to one side of a potential future case? I think it's pretty clear where Kavanaugh stands, and if another NCAA antitrust case comes up next year, one that goes much further to the heart of the NCAA's player compensation model, he could basically recycle most of today's opinion into an opinion in that case.
There may be an example in history, but I am unaware of any where the Court so obviously sets up a future case using a concurring opinion in a narrower case. Obviously it's common to set up the court to overturn in the future using a dissenting opinion. It seems that they are generally conservative (not in the political sense) in reaching conclusions and sharing reasoning very far beyond the scope of the case at hand, and prefer to at least publicly maintain an image of openness and impartiality for all cases that would potentially come before them.
No, I recognize that. Like I said, it points toward a direction at least one justice is moving toward, and Kavanaugh has been vocal more generally at his distaste for anti-trust abuses. And I assume there will be another case that attacks the broader-scale prohibitions the NCAA places on non-school/academic means of engaging in commerce, and I think we can pencil in Kavanaugh for voting it be heard by the court. But he also didn't convince any other judge to sign on to his concurrence, and so it's also not unreasonable to believe that he may be a bit more out there compared to the other judges when it comes to the NCAA.
Again, speculation on my part but I would note that Kavanaugh has a penchant for concurrences that are perhaps beyond the bounds of his fellow justices (see his concurrence in the Wisconsin election laws case from 2020) and so assuming they signal a bench-wide viewpoint isn't a given.
My take on Kavanaugh's concurrence, taken with today's unanimous verdict, is that there's some area west of just-education-expenses but not quite as far out as the Wild, Wild West where 5 justices would land on this. NIL would be next, maybe, I don't know, but it's pretty clear the NCAA should be prepared to cede even more ground.
Yeah, that's my reading as well. But it will depend on the fact pattern; I could see the judges coming down in some "split the baby" decision wherein the athletes have some access to NIL rights but there's a general organization that the NCAA sets up to administer it all and there are limits. I'm not advocating for that but it wouldn't be a shock.
Kavanaugh correctly points out that the Court blew up the justifications for *any* NCAA-imposed restrictions on how much athletes get paid, other than in order to conform to Title IX. Basically, all we need is for a conference (B1G!) to say "we are going to pay our athletes" and let the NCAA sue them.
The big policy problem here is Title IX. Colleges will likely have to pay female and male athletes equally, which creates conundrums if the goal is to lure superstar athletes with higher pay packages.
I disagree. The court recognized that some D1 football and basketball players could receive higher education related compensation in a competitive and open market. Title IX prohibits gender discrimination, it doesn't guarantee equal compensation in a competitve environment.
I’m not a lawyer, nor did I stay at a Holiday Inn Express last night, but my gut feeling is that this decision paves the way for a third option. Currently, universities have club sports and varsity sports. Club sports are effectively money losing businesses that exist because the participants love the game and are willing to pay their own way (and try to earn some money for the club to offset the costs.)
I can envision a situation where varsity sports experience a schism between “educational opportunities” covered by Title IX, and money-making enterprises not covered by Title IX. The Detroit Lions are not forced to have a women’s team. Why? Because it’s a business, not an educational opportunity. It appears that the Court has decided if it walks like a duck, talks like a duck, and brings in billions of dollars in revenue, it’s a business.
The question I have is what will the universities do with their non-revenue, varsity sports if they don’t have surpluses from the revenue sports to offset the costs? The cost-benefit analysis of having a rowing team versus a university choir changes when the funding mechanism changes.
I suspect 10 years from now we will have fewer varsity sports, more club sports, and more disgruntled school supporters who take their dollars to professional leagues that provide a better product.
One last question. Say you are a band member or cheerleader or other student volunteer. If the players start getting paid above the table, what is your incentive to continue volunteering to help out this business? If it’s me, I tell the school to get bent. I’d rather spend my time trying to earn some money than subsidizing a commercial business. I suppose it’s that way now, it’s just going to be more obvious going forward.
Nothing would necessarily stop the "University of Michigan Collegiate Sports Corporation" from donating all of their profits to the University of Michigan Athletics Department to fund non-revenue sports educational opportunities...
I disagree. It sounds very much like you stayed at a Holiday Inn Express last night.
I didnt read the whole concurrence, but just based on the excerpt I read, it was wasn't part of the holding anyway; it didnt really matter if any other justices joined it or not. Kavanaugh's opinion was basically just trying to goad a future plaintiff to take up a much broader suit against the NCAA.
You wouldn't expect to see any other Justices join in that kind of opinion since its clearly not part of the holding in the present case.
But if you are the NCAA, you have be an idiot not to realize the implications of a Supreme Court Justice openly daring someone to bring a lawsuit against you because they can't wait to blow up your whole entire enterprise.
The sense I've gotten with Kavanaugh (and Roberts, to a lesser extent) is that he's very conscious of his poor image among liberals and left-leaning folks and he's very eager to demonstrate that he's a good dude who really does care about the little guy. That makes him a bit of a wildcard, notwithstanding his judicial philosophy.
I doubt there is anything Kavanaugh could do to improve his "image" among liberals and left leaning folk. And I would hope how his decisions impact his image with the public or the media is not of much concern to him.
Perhaps, but Kavanaugh seems to have a very particular view of anti-trust law and so I'm not surprised he'd come out hard in a case like this. He did something similar in an antitrust case between Apple and customers over App store charges and wrote the 5-4 decision, siding with the liberals that the lawsuit could proceed. He also wrote the opinion for a lawsuit between the NFL and I think Direct TV, siding against the NFL.
I don't think that's the case. The NCAA current state violates his free market/enterprise beliefs, not because he cares about "the little guy". I think Brian summed it up best in his front page post using this tweet:
"If a broader appeal were to go up, the NCAA is pretty much hosed. The right wing of the court sees an obvious restraint on trade that's objectionable on market principles, and the left wing of the court sees blatant inequality. The NCAA has no quarter."
The Roberts court is known for issuing narrow rulings, and this current term has seen what appears to be a real effort by the justices to reach decisions supported by virtually the entire bench, if not unanimous opinions. I wouldn’t assume the concurrence means four other justices agree with Kavanaugh, but I certainly wouldn’t infer the opposite either. It may well be a majority sees it his way, but did not need to reach that far to dispose of this case. Claiming the decision is nothing to worry about is precisely the attitude that got the organization where it is today.
I think the NCAA should absolutely be worried about the current decision because it signals a movement against them, but I'm only saying that assuming the court's outlook about the continued existence of the NCAA is embodied in Kavanaugh's concurrence probably isn't true. I do think we'll see a case in the next couple of years that goes to the heart of "amateurism" as preached by the NCAA as it relates to off-the-field/court financial options for players, and if I'm the NCAA I would be nervous that the court would rule against me. I'm just arguing that a concurrence written only by Kavanaugh and unsigned by the other justices doesn't likely represent the current outlook of the court and my guess is that if the issues he spoke to were before the court I'm not sure Kavanaugh's particular outlook would be the final consensus.
All that said, Emmert is an idiot if he doesn't start re-adjusting the NCAA's stance on the financial aspects of their student-athletes.
Emmert is a politician who knows who signs his paychecks, so he's going to do the political & self-interested thing, put a bold face on whatever the NCAA wants to do.
And if—though probably when—the NCAA surrenders, he'll be standing front and center declaring the surrender is actually a victory.
Also—in one of my favorite legal techniques, arguing in the alternative—he may admit it's surrender while stoutly insisting that the new stance is TOTALLY consistent with the NCAA's earlier philosophy and statements.
This has the feeling of Emmert playing to his base constituency. Wring every ounce of blood from the stone you can before it runs dry.
They're right in the sense that Kavanagh's concurrence has no legal significance. But they'd have to be complete morons not to see that they're screwed once the next challenge to their model comes down the pike. And there's no way the fine people at the NCAA would be moronic about something.
"And there's no way the fine people at the NCAA would be moronic about something."
That is one of the funniest lines anyone has ever written on this site.
The fact the NCAA lead by Emmert is unwilling to yield control to the students-athletes tells me all you need to know about his opinions of student-athlete.
boycott this corrupt organization called the NCAA
Except for Basketball...UM is good at basketball.
Law suites will abound against NCAA in which will backfire against them. It won't take long.
Emmert's days are numbered.
you want to solve the deficit?
Remove this organization's tax exempt status.
Came here to say that he’s technically right as the concurring opinion isn’t legally binding, but of course, with this being a Michigan blog, the first 2 responses covered that…
And this being a Michigan blog, the responses after that veered all over the place.
Yeah he's absolutely right that the details of a concurring opinion carry as much legal weight as a dissent, which is to say none at all
The Kavanaugh opinion is the proverbial "writing on the wall". I think the NCAA ignores the message at its own risk.
Ha!!! I miss Baghdad Bob - grand entertainment, that guy!
i do my part by ignoring jury summons -- together we can do this, emmert!
Can the Supreme Court sentence Emmert to life in prison?
Mark Emmert:
Mark Emmert should just shut up and have people think he is an ignorant ass - instead of opening his piehole and confirming it.
Fuck him and the money grubbing, archaic NCAA...
i second his opinion. i ignore any opinion i dont like. keeps me happy
Shorter Mark Emmert:
The Black Knight was much braver and quantum leaps more intelligent than Marky poo.
"Tis but a scratch!"
Ah yes, the ole' Andrew Jackson move.
dragonchild says ignore the Mark Emmert.
mark emmert. never not whistling past the graveyard.
Kavanaugh was drunk posting.
You won't see me casting any stones his way.