In this week’s Film Room, we break down:
- The reported text of a potential executive order and its possible impact on college athletics regulation
- A decision from a federal appeals court reversing an eligibility rule injunction
Reported Text of Potential Executive Order
We’ve noted that federal action can stabilize the college athletics regulatory space, including in two areas in which actions by courts and state legislatures have led to disparate treatment across the country—NIL and eligibility.
Weeks of rumblings of presidential action on college athletics reached a fever pitch on July 18, when Ross Dellenger of Yahoo! Sports published a draft executive order (EO). The draft EO directs the attorney general (AG) and the Federal Trade Commission (FTC) to:
“[I]n litigation, guidelines, policies, or other actions, as appropriate, work to stabilize and preserve college athletics by: (i) supporting the establishment and maintenance of durable rules, adopted by appropriate entities, that fairly protect the rights and interests of student-athletes and the long-term availability of collegiate athletic scholarships and opportunities when such measures are challenged under antitrust or other legal theories . . . and (iii) supporting greater uniformity, predictability, and cooperation with respect to Federal and State laws and enforcement practices concerning college athletics.” (Emphasis added.)
Together, the Antitrust Division of the Department of Justice—ultimately, at the direction of the AG—and the FTC direct the enforcement of US antitrust laws. Activity by the federal government in this area could curtail the serial challenges on antitrust grounds levied on the regulatory structure of college athletics and support the membership’s enforcement efforts through both the NCAA and the College Sports Commission.
The draft EO also directs executive department cabinet members to take action to preserve educational opportunities, protect development of the US Olympic Team, and “clarify[] the status of collegiate athletes” in a manner that will “maximize the educational benefits and opportunities provided by higher education institutions through athletics.” The draft EO does not make a statement on student-athlete employment status but rather directs the Secretary of Labor to analyze athletes’ status and make a direction that maximizes higher education opportunities through athletics.
As some have pointed out, it’s true that an EO is not the same as a legislatively passed law. However, the weight of the executive branch pulling activities in a direction is impactful, as we’ve seen in other areas. Also, influence from the executive branch, and the president specifically, can drive legislative outcomes. It will be instructive to track any issued EO’s impact on the SCORE Act as it moves forward through legislative channels. As always, we’ll keep you posted.
Seventh Circuit Reversal of Injunction That Restricted Enforcement of Five-Year Rule
As we noted earlier this year, a Wisconsin federal district court granted student-athlete Nyzier Fourqurean’s request for an injunction prohibiting the NCAA from enforcing the rule limiting student-athlete eligibility to five years. On July 16, the Seventh Circuit Court of Appeals reversed that decision, adding stability to eligibility rules that have been under recent attack.
Notably, the Seventh Circuit held that the plaintiff’s reliance on Alston did not provide a sufficiently detailed description of a market definition and its impact. In so doing, the Seventh Circuit described limits on the Supreme Court’s ruling in Alston:
“As an initial matter, Fourqurean relies entirely on Alston to define the relevant market. In his and the district court’s view, the Supreme Court in Alston established that men’s NCAA Division I FBS football is a relevant market. But Fourqurean overstates the scope of the Court’s ruling. The Alston Court did not decide the question of market definition.” (p.15).
The Seventh Circuit left open the “possibility that on a fuller record, Fourqurean will succeed in establishing his claim.” (p.18). We’ll keep you posted on any relevant subsequent activity at the district court and in other eligibility-rule litigation pending across the country.
We’ll also track progress on both the reported potential EO and the SCORE Act, which would impact eligibility-rule regulation.
[View source.]
