1 00:00:03,200 --> 00:00:08,760 Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio. 2 00:00:10,360 --> 00:00:12,880 Speaker 2: Next year at the Supreme Court promises to be a 3 00:00:12,920 --> 00:00:16,920 Speaker 2: tumultuous one with cases on abortion, the Second Amendment, and 4 00:00:16,960 --> 00:00:21,480 Speaker 2: the many legal issues involving former President Donald Trump. Joining 5 00:00:21,520 --> 00:00:23,279 Speaker 2: me for the second half of our look at what's 6 00:00:23,280 --> 00:00:26,439 Speaker 2: happening at the Court next year is Bloomberg Supreme Court 7 00:00:26,480 --> 00:00:29,840 Speaker 2: reporter Greg Store. Greg. There's going to be a sort 8 00:00:29,880 --> 00:00:33,400 Speaker 2: of showdown at the Court over agency power with two 9 00:00:33,520 --> 00:00:37,880 Speaker 2: cases involving the Chevron Doctrine, which is a thirty nine 10 00:00:37,960 --> 00:00:41,760 Speaker 2: year old precedent, and this will have major implications for 11 00:00:41,840 --> 00:00:43,760 Speaker 2: all kinds of government regulations. 12 00:00:44,280 --> 00:00:46,960 Speaker 3: Yeah, it is one of those cases that is cited 13 00:00:47,360 --> 00:00:51,559 Speaker 3: all the time in federal administrative law cases, meaning like 14 00:00:51,680 --> 00:00:56,520 Speaker 3: challenges to agency regulations. And basically what the Chevron Doctrine 15 00:00:56,560 --> 00:01:00,360 Speaker 3: says is, if there's a statute that is ambiguous, if 16 00:01:00,360 --> 00:01:03,800 Speaker 3: the agency interprets it that ambiguous statute in a certain way, 17 00:01:03,840 --> 00:01:07,000 Speaker 3: and if that's a reasonable interpretation, we the courts are 18 00:01:07,000 --> 00:01:09,360 Speaker 3: going to defer to the agency. And so it gives 19 00:01:09,600 --> 00:01:13,640 Speaker 3: agencies regulators a certain amount of power to define the 20 00:01:13,680 --> 00:01:17,600 Speaker 3: scope of their mission and their authority and the Supreme Court. 21 00:01:17,760 --> 00:01:21,520 Speaker 3: This very conservative Supreme Court has been expressly a good 22 00:01:21,520 --> 00:01:24,080 Speaker 3: deal skepticism about the Chevron doctrine and in fact has 23 00:01:24,120 --> 00:01:27,560 Speaker 3: been kind of narrowing it over the years, and now 24 00:01:27,560 --> 00:01:30,480 Speaker 3: they have a case where they might just overturn it. 25 00:01:30,480 --> 00:01:34,399 Speaker 3: It's a case that involves a fee that is charged 26 00:01:34,480 --> 00:01:37,959 Speaker 3: to herring fishermen or could be charged to herring fishermen 27 00:01:38,280 --> 00:01:42,120 Speaker 3: to pay for federal monitors aboard their vessels, and the 28 00:01:42,280 --> 00:01:45,280 Speaker 3: argument is that federal regulators didn't have the authority to 29 00:01:46,160 --> 00:01:49,800 Speaker 3: impose that fee. In they don't necessarily have to overturn 30 00:01:49,840 --> 00:01:52,600 Speaker 3: the Chevron doctrine in the case, but if they do, 31 00:01:53,200 --> 00:01:57,320 Speaker 3: it could really represent a major shift in terms of 32 00:01:57,400 --> 00:02:00,960 Speaker 3: what agencies are able to do, how authority they have 33 00:02:01,160 --> 00:02:05,840 Speaker 3: to enact new regulations, and it would really be kind 34 00:02:05,840 --> 00:02:08,760 Speaker 3: of a revolution in this arcane the very very important 35 00:02:08,760 --> 00:02:10,360 Speaker 3: world of federal administrative law. 36 00:02:10,840 --> 00:02:16,880 Speaker 2: And several conservative justices have written about their opposition to Chevron, 37 00:02:17,040 --> 00:02:20,360 Speaker 2: though the Court has never actually revisited it. 38 00:02:20,960 --> 00:02:24,959 Speaker 3: Right, so justices like Clarence Thomas Neil Gorsich, you expect 39 00:02:25,000 --> 00:02:28,280 Speaker 3: them to be very very skeptical when the Court considers it. 40 00:02:28,440 --> 00:02:31,640 Speaker 3: There's another aspect of this issue. In the case a 41 00:02:31,680 --> 00:02:36,079 Speaker 3: couple terms ago involving the EPA and regulation of climate change, 42 00:02:36,160 --> 00:02:38,520 Speaker 3: the Supreme Court said that not only are we not 43 00:02:38,560 --> 00:02:41,600 Speaker 3: going to give Chevron deference to the EPA when it 44 00:02:41,680 --> 00:02:45,440 Speaker 3: decides it has brought authority to impose regulations on power plants, 45 00:02:45,760 --> 00:02:48,360 Speaker 3: but we're actually going to start with the assumption that 46 00:02:49,080 --> 00:02:53,680 Speaker 3: Congress wouldn't have delegated this authority to the EPA unless 47 00:02:53,760 --> 00:02:56,520 Speaker 3: it was explicitly clear. Because this is a so called 48 00:02:56,639 --> 00:02:59,680 Speaker 3: major question. It is so important that we just aren't 49 00:02:59,680 --> 00:03:01,720 Speaker 3: going to be lead that Congress meant to give the 50 00:03:01,720 --> 00:03:04,880 Speaker 3: EPA authority over it unless it's crystal clear in the statute. 51 00:03:04,960 --> 00:03:09,000 Speaker 3: So this notion of deferring to agencies is already under 52 00:03:09,000 --> 00:03:11,079 Speaker 3: pressure from a lot of different angles. 53 00:03:11,400 --> 00:03:13,920 Speaker 2: And you've written about how it's sort of like the 54 00:03:14,040 --> 00:03:18,800 Speaker 2: dream of conservatives and critics of big government. How critics 55 00:03:18,840 --> 00:03:21,919 Speaker 2: of big government have organized to fight the Chevron doctrine 56 00:03:22,320 --> 00:03:26,400 Speaker 2: in ways similar to how anti abortion groups organized to 57 00:03:26,440 --> 00:03:28,360 Speaker 2: fight against Roe v. Wade. 58 00:03:28,600 --> 00:03:31,040 Speaker 3: Yeah, there was a massive pile of briefs on the 59 00:03:31,120 --> 00:03:34,320 Speaker 3: side of the fishermen in this case, all manner of 60 00:03:34,720 --> 00:03:38,040 Speaker 3: conservative groups weighing and in business groups to some degree 61 00:03:38,160 --> 00:03:41,640 Speaker 3: weighing in support. Kind of the interesting difference between Roe v. 62 00:03:41,760 --> 00:03:45,720 Speaker 3: Wade and Chevron is that early on when Chevron, when 63 00:03:45,720 --> 00:03:48,040 Speaker 3: the ruling came down in nineteen eighty four, it was 64 00:03:48,080 --> 00:03:50,720 Speaker 3: something that conservatives tended to like. That was a time 65 00:03:50,720 --> 00:03:54,600 Speaker 3: when Ronald Reagan was president Republican and conservatives tended to 66 00:03:54,800 --> 00:03:58,640 Speaker 3: like what agencies were doing, and so they were happy 67 00:03:58,680 --> 00:04:04,000 Speaker 3: to have courts deferring two agencies. Over time, particularly as 68 00:04:04,080 --> 00:04:07,400 Speaker 3: Democrats came into the White House, conservatives came to think 69 00:04:07,400 --> 00:04:09,960 Speaker 3: it was a bad idea. They wanted judges to have 70 00:04:10,040 --> 00:04:13,080 Speaker 3: more authority to decide how broad federal statutes are. 71 00:04:13,400 --> 00:04:17,880 Speaker 2: Although presidents of both parties have leaned on the Chevron doctrine. 72 00:04:18,080 --> 00:04:21,480 Speaker 2: So there are two cases. One that the Court decided 73 00:04:21,520 --> 00:04:24,680 Speaker 2: to take in May, the Loper Bright case, and then 74 00:04:24,720 --> 00:04:29,200 Speaker 2: a second case the Court decided to take in October, Relentless, 75 00:04:29,360 --> 00:04:34,880 Speaker 2: Perhaps since appropriately entitled Relentless versus Department of Commerce. Explain 76 00:04:34,960 --> 00:04:37,640 Speaker 2: why the justices may have taken that second case. 77 00:04:38,279 --> 00:04:40,159 Speaker 3: Yeah, So, first of one, I should say that they're 78 00:04:40,200 --> 00:04:43,640 Speaker 3: otherwise exactly the same, the exact same issue. It's both 79 00:04:43,640 --> 00:04:47,080 Speaker 3: about this see for monitors on Herring votes. The difference 80 00:04:47,120 --> 00:04:49,479 Speaker 3: is that in the first case, the lober Bright case, 81 00:04:49,680 --> 00:04:53,000 Speaker 3: Justice Katachi bron Jackson is recused from it. She had 82 00:04:53,040 --> 00:04:55,200 Speaker 3: been involved with it when she was a Federal Appeals 83 00:04:55,240 --> 00:04:57,720 Speaker 3: Court judge on the DC Circuit, And so by adding 84 00:04:57,839 --> 00:05:00,679 Speaker 3: the second case, the Court guarantees they will have nine 85 00:05:00,880 --> 00:05:04,600 Speaker 3: justices to decide it. Now, I'm given the conservative leanings 86 00:05:04,600 --> 00:05:07,400 Speaker 3: of this court, they may not need nine justices. They 87 00:05:07,400 --> 00:05:09,640 Speaker 3: may already have the five they need to overturn the 88 00:05:09,720 --> 00:05:12,560 Speaker 3: Chevran decision. But at least Justice Jackson will have a 89 00:05:12,680 --> 00:05:13,960 Speaker 3: chance to weigh in in the case. 90 00:05:14,560 --> 00:05:17,960 Speaker 2: And the Supreme Court is going to delve into several 91 00:05:18,000 --> 00:05:22,599 Speaker 2: cases involving social media. They agreed to review Florida and 92 00:05:22,720 --> 00:05:25,919 Speaker 2: Texas laws that would sharply restrict the ability of the 93 00:05:26,000 --> 00:05:31,279 Speaker 2: largest social media platforms to police political misinformation. The laws 94 00:05:31,279 --> 00:05:33,320 Speaker 2: are a little bit different, but similar. 95 00:05:34,200 --> 00:05:39,520 Speaker 3: Yeah, So both of them basically restrict the editorial discretion 96 00:05:39,720 --> 00:05:42,840 Speaker 3: of social media companies. Restrict the ability of social media 97 00:05:42,880 --> 00:05:46,760 Speaker 3: companies to decide on their own whether certain posts should 98 00:05:46,760 --> 00:05:50,800 Speaker 3: be taken down or certain users kicked off the platform. 99 00:05:51,240 --> 00:05:54,479 Speaker 3: The argument that the states are making is that, oh, 100 00:05:54,600 --> 00:05:58,680 Speaker 3: these social media companies discriminate against conservative viewpoints and so 101 00:05:58,800 --> 00:06:02,920 Speaker 3: we need to pose some regulations. And the two laws 102 00:06:03,040 --> 00:06:07,320 Speaker 3: are different in terms of their exact provisions. The Texas law, 103 00:06:07,360 --> 00:06:11,160 Speaker 3: for example, includes a broader provision that essentially says that 104 00:06:11,240 --> 00:06:13,919 Speaker 3: social media companies have to be viewpoint neutral. They have 105 00:06:13,960 --> 00:06:17,800 Speaker 3: to treat conservative viewpoints and liberal viewpoints alike. The Florida 106 00:06:17,920 --> 00:06:22,200 Speaker 3: law has a provision in it that requires social media companies, 107 00:06:22,240 --> 00:06:25,480 Speaker 3: whenever they do something take down a post, to give 108 00:06:25,520 --> 00:06:29,240 Speaker 3: a detailed explanation of why they did that. So social 109 00:06:29,279 --> 00:06:32,279 Speaker 3: media companies their trade group are lodging a first Amendment 110 00:06:32,360 --> 00:06:35,760 Speaker 3: challenge to both laws, and the devil may be in 111 00:06:35,839 --> 00:06:38,520 Speaker 3: the detailed to some degree. For example, the Florida law, 112 00:06:38,560 --> 00:06:41,760 Speaker 3: a federal appeals court upheld part of it and blocked 113 00:06:41,839 --> 00:06:44,039 Speaker 3: part of it, So there may be some parsing that 114 00:06:44,080 --> 00:06:46,679 Speaker 3: the Supreme Court decides to do in terms of whether 115 00:06:46,720 --> 00:06:48,920 Speaker 3: these laws are constitutional, and that. 116 00:06:48,960 --> 00:06:52,599 Speaker 2: Appeals court, the Eleventh Circuit, is one of the most 117 00:06:52,800 --> 00:06:56,440 Speaker 2: conservative circuits in the country, but not as conservative as 118 00:06:56,440 --> 00:07:00,919 Speaker 2: the Fifth Circuit, which upheld the Texas law. Former President 119 00:07:00,960 --> 00:07:04,760 Speaker 2: Donald Trump filed a brief in support of the Florida law. 120 00:07:04,960 --> 00:07:11,200 Speaker 2: How much could this decision shape the rules online in 121 00:07:11,240 --> 00:07:13,440 Speaker 2: the run up to the twenty twenty four election. 122 00:07:14,040 --> 00:07:16,200 Speaker 3: That's a good question, and I think my answer is 123 00:07:16,640 --> 00:07:18,520 Speaker 3: perhaps not as much as I would have thought a 124 00:07:18,600 --> 00:07:22,440 Speaker 3: year ago, in that we've seen social media companies X 125 00:07:22,480 --> 00:07:25,960 Speaker 3: for example, the platform formally known as Twitter doing less 126 00:07:26,000 --> 00:07:30,840 Speaker 3: to combat misinformation disinformation on their platform, same thing with 127 00:07:31,240 --> 00:07:35,120 Speaker 3: other social media platforms. So to the extent that these 128 00:07:35,200 --> 00:07:39,240 Speaker 3: laws were trying to crack down on social media companies 129 00:07:39,280 --> 00:07:44,520 Speaker 3: when they were actively trying to remove inaccuracies, you know, 130 00:07:44,560 --> 00:07:46,800 Speaker 3: there's less of that going on anyway, and so the 131 00:07:46,840 --> 00:07:49,200 Speaker 3: practical effect of it might be a little less than 132 00:07:49,240 --> 00:07:50,800 Speaker 3: we thought it was going to be previously. 133 00:07:51,200 --> 00:07:55,080 Speaker 2: Greg looking at what's coming up, do you think that 134 00:07:55,600 --> 00:08:01,840 Speaker 2: this term could be as controversial as two terms ago. 135 00:08:02,280 --> 00:08:04,720 Speaker 3: Well, that's a pretty high bar to set the term 136 00:08:04,760 --> 00:08:06,920 Speaker 3: two years ago. That, of course, is the term where, 137 00:08:07,160 --> 00:08:10,160 Speaker 3: among other things, the Court overturned Roe v. Wade, sot 138 00:08:10,200 --> 00:08:13,440 Speaker 3: up a tough new test for gun regulations. This term 139 00:08:13,560 --> 00:08:16,200 Speaker 3: right now, we have a lot of very important cases, 140 00:08:16,680 --> 00:08:19,640 Speaker 3: but not historic cases in quite the same way as 141 00:08:19,800 --> 00:08:23,200 Speaker 3: we had that term. Now, the big caveat to all 142 00:08:23,200 --> 00:08:26,240 Speaker 3: that is Donald Trump is out there, and there are 143 00:08:26,680 --> 00:08:30,680 Speaker 3: all manner of Donald Trump related cases that are percolating, 144 00:08:30,760 --> 00:08:34,800 Speaker 3: including the question of whether he is immune from criminal 145 00:08:34,880 --> 00:08:37,520 Speaker 3: charges over things he did as president to try to 146 00:08:37,520 --> 00:08:40,640 Speaker 3: overturn the election results leading up to the January sixth 147 00:08:40,720 --> 00:08:43,319 Speaker 3: riot at the Capitol. There's also the question of whether 148 00:08:43,360 --> 00:08:46,800 Speaker 3: the Constitution's fourteenth amend and the insurrection clause in there 149 00:08:47,040 --> 00:08:51,520 Speaker 3: precludes him from becoming president again. Those are enormously big 150 00:08:51,679 --> 00:08:57,360 Speaker 3: issues with both legal and political significance, and so those 151 00:08:57,440 --> 00:09:01,280 Speaker 3: cases may end up being the things that power above 152 00:09:01,320 --> 00:09:03,800 Speaker 3: everything else that the Supreme Court has this term. 153 00:09:04,240 --> 00:09:06,319 Speaker 2: So I think you'll be quite busy next year. Greg, 154 00:09:06,720 --> 00:09:08,680 Speaker 2: Thanks so much for running it all down for us. 155 00:09:08,880 --> 00:09:13,000 Speaker 2: That's Bloomberg Supreme Court reporter Greg Store. Coming up next 156 00:09:13,000 --> 00:09:16,439 Speaker 2: on the Bloomberg Law Show, Top US officials are going 157 00:09:16,440 --> 00:09:19,400 Speaker 2: to be traveling to Mexico in an attempt to deal 158 00:09:19,440 --> 00:09:22,720 Speaker 2: with the record numbers of people crossing the southern border. 159 00:09:23,360 --> 00:09:26,240 Speaker 2: I'm June Gross. When you're listening to Bloomberg, the US 160 00:09:26,360 --> 00:09:31,480 Speaker 2: is facing an unprecedented surge of migrants at the southern border. Yesterday, 161 00:09:31,600 --> 00:09:35,480 Speaker 2: US Customs and Border Protection encountered more than twelve thousand 162 00:09:35,679 --> 00:09:39,840 Speaker 2: undocumented migrants crossing the border for the third straight day, 163 00:09:40,240 --> 00:09:45,000 Speaker 2: a new record. National Security Council official John Kirby said 164 00:09:45,040 --> 00:09:48,840 Speaker 2: President Joe Biden and the President of Mexico agreed during 165 00:09:48,920 --> 00:09:52,400 Speaker 2: a call today that more enforcement at the border between 166 00:09:52,440 --> 00:09:55,960 Speaker 2: the two countries is needed, as record numbers of people 167 00:09:56,080 --> 00:09:58,559 Speaker 2: trying to cross have disrupted trade. 168 00:09:59,040 --> 00:10:01,880 Speaker 4: One of the things that the President Lopez Overdoor and 169 00:10:01,920 --> 00:10:04,120 Speaker 4: the President talked about today was trying to work on 170 00:10:04,160 --> 00:10:07,160 Speaker 4: getting at the root causes of migration. We're seeing record 171 00:10:07,240 --> 00:10:09,000 Speaker 4: levels of people, more people are on the move in 172 00:10:09,000 --> 00:10:11,560 Speaker 4: this hemisphere than that has been the case since World 173 00:10:11,559 --> 00:10:12,000 Speaker 4: War Two. 174 00:10:12,480 --> 00:10:17,120 Speaker 2: Top US officials, including Secretary of State Anthony Blincoln and 175 00:10:17,240 --> 00:10:21,960 Speaker 2: Homeland Security Secretary Alejandro Majorcis, will travel to Mexico in 176 00:10:22,000 --> 00:10:25,440 Speaker 2: the coming days to meet with President Lopez Oberdoor on 177 00:10:25,520 --> 00:10:29,160 Speaker 2: the issue. My guest is immigration law expertly On Fresco, 178 00:10:29,280 --> 00:10:31,640 Speaker 2: a partner at Holland and Knight Leon. There was a 179 00:10:31,679 --> 00:10:36,360 Speaker 2: record number of so called migrant encounters on the southern 180 00:10:36,400 --> 00:10:40,880 Speaker 2: border this year, with two point four million migrants crossing 181 00:10:40,920 --> 00:10:44,400 Speaker 2: the border. Is a Biden administration doing everything it has 182 00:10:44,600 --> 00:10:45,920 Speaker 2: the legal power to do. 183 00:10:46,559 --> 00:10:50,000 Speaker 5: So here's the main point to take from this, which 184 00:10:50,040 --> 00:10:54,520 Speaker 5: is there is undoubtedly one thing that the Biden administration 185 00:10:54,720 --> 00:10:57,800 Speaker 5: is not doing that. The Trump administration was doing that. 186 00:10:57,880 --> 00:11:00,600 Speaker 5: It theoretically has the legal ability to do, which is 187 00:11:00,600 --> 00:11:05,120 Speaker 5: to remain in Mexico. Program. Now, that would require cooperation 188 00:11:05,280 --> 00:11:10,240 Speaker 5: from Mexico, which Mexico currently states that it wouldn't provide. Now, 189 00:11:10,280 --> 00:11:14,079 Speaker 5: if you remember President Trump obtaining that cooperation by saying 190 00:11:14,080 --> 00:11:18,640 Speaker 5: he would create massive paris on cars entering from Mexico, 191 00:11:18,720 --> 00:11:23,560 Speaker 5: which scared the Mexican government into cooperating. It's unclear if 192 00:11:23,600 --> 00:11:26,880 Speaker 5: President Biden would use similar toxics, but the point is 193 00:11:26,960 --> 00:11:33,160 Speaker 5: there is that one arsenal lest where theoretically President Biden 194 00:11:33,240 --> 00:11:37,640 Speaker 5: could create some sort of threats such as sarasun cars, 195 00:11:38,040 --> 00:11:42,000 Speaker 5: which would create an incentive for Mexico to allow remain 196 00:11:42,080 --> 00:11:46,959 Speaker 5: in Mexico and then have all of those individuals placed 197 00:11:47,000 --> 00:11:51,600 Speaker 5: into Mexico waiting for their asylum case to be heard. 198 00:11:52,200 --> 00:11:55,680 Speaker 5: And so you'd have to obviously spend lots of money 199 00:11:55,679 --> 00:11:59,160 Speaker 5: on resources and creating facilities in Mexico for people to 200 00:11:59,240 --> 00:12:03,600 Speaker 5: wait in, and perhaps in creating locations where people could 201 00:12:03,600 --> 00:12:07,240 Speaker 5: obtain legal assistance to do their asylum claim and things 202 00:12:07,240 --> 00:12:11,240 Speaker 5: of this nature. But nevertheless, it's possible, but they're choosing 203 00:12:11,280 --> 00:12:13,400 Speaker 5: not to go down that route. What if it appears 204 00:12:13,440 --> 00:12:15,960 Speaker 5: they're trying to invest in at the moment, are these 205 00:12:16,000 --> 00:12:20,040 Speaker 5: bipartisan negotiations in the Senate to try to come up 206 00:12:20,120 --> 00:12:24,479 Speaker 5: with some statutory authority to do different things by statutes 207 00:12:24,840 --> 00:12:27,640 Speaker 5: than what is currently permitted as opposed to using remaining 208 00:12:27,640 --> 00:12:28,240 Speaker 5: in Mexico. 209 00:12:28,640 --> 00:12:31,440 Speaker 2: What are the sticking points in the Senate between the 210 00:12:31,440 --> 00:12:32,880 Speaker 2: Democrats and the Republicans. 211 00:12:34,280 --> 00:12:40,000 Speaker 5: The problem is this is a basically conceptual disagreement about 212 00:12:40,040 --> 00:12:44,079 Speaker 5: what the problem is visa visa border. The Democrats are 213 00:12:44,120 --> 00:12:49,320 Speaker 5: focused on solving the narrow issue of what is the 214 00:12:49,360 --> 00:12:52,240 Speaker 5: standard that people have to articulate in order to be 215 00:12:52,320 --> 00:12:56,160 Speaker 5: permitted entry into the United States, and they want to 216 00:12:56,280 --> 00:12:59,760 Speaker 5: raise that standard. And what they want to do, which 217 00:12:59,800 --> 00:13:02,520 Speaker 5: is sort of a big concession, is to say if 218 00:13:02,559 --> 00:13:04,800 Speaker 5: a certain amount of people are still coming after we 219 00:13:05,000 --> 00:13:09,199 Speaker 5: raise that standard, then we will actually trigger some sort 220 00:13:09,200 --> 00:13:13,840 Speaker 5: of Title forty two, like automatic expulsion until the numbers 221 00:13:13,880 --> 00:13:16,760 Speaker 5: start coming down. And so even if you had a 222 00:13:16,840 --> 00:13:19,840 Speaker 5: legitimate claim, you'd still have to make it in Mexico. 223 00:13:20,400 --> 00:13:22,920 Speaker 5: That's pretty much where the Democrats want to go, and 224 00:13:22,960 --> 00:13:25,960 Speaker 5: they don't want to do anything more. The Republicans view 225 00:13:26,000 --> 00:13:29,000 Speaker 5: this as sort of a larger problem, which is not 226 00:13:29,200 --> 00:13:32,440 Speaker 5: just that, but also all of the parole groups that 227 00:13:32,760 --> 00:13:39,160 Speaker 5: President Biden is allowing to enter the country currently from Cuba, Venezuela, Nicaragua, Haiti. 228 00:13:39,360 --> 00:13:42,160 Speaker 5: They want to eliminate all of that and say and 229 00:13:42,400 --> 00:13:46,640 Speaker 5: Ukraine also and say that pretty much that whole flow 230 00:13:46,720 --> 00:13:49,400 Speaker 5: has to be shut down. And the problem is the 231 00:13:49,400 --> 00:13:53,320 Speaker 5: Biden administration thinks that those legal parole programs are actually 232 00:13:53,440 --> 00:13:58,200 Speaker 5: lowering the demand for illegal immigration, whereas the Republicans think, no, 233 00:13:58,400 --> 00:14:02,200 Speaker 5: the illegal crossers are coming and it's only the people 234 00:14:02,200 --> 00:14:06,320 Speaker 5: who would have come legally who are applying for the 235 00:14:06,440 --> 00:14:10,280 Speaker 5: legal parole program but that this isn't really reducing any 236 00:14:10,280 --> 00:14:15,000 Speaker 5: flow of illegal immigration. And so for the Republicans, unless 237 00:14:15,000 --> 00:14:18,320 Speaker 5: you end these parole programs, they are claiming they won't 238 00:14:18,360 --> 00:14:21,320 Speaker 5: reach any deal. And for the Democrats this is sort 239 00:14:21,320 --> 00:14:25,280 Speaker 5: of viewed as a non starter because the Democrats are saying, 240 00:14:25,280 --> 00:14:31,040 Speaker 5: we're already making enough concessions on the asylum claims themselves 241 00:14:31,360 --> 00:14:35,160 Speaker 5: without achieving anything to help any immigrants, that we're not 242 00:14:35,200 --> 00:14:37,960 Speaker 5: going to go this final route and limit the president's 243 00:14:37,960 --> 00:14:40,680 Speaker 5: ability to parole people into the country. 244 00:14:41,520 --> 00:14:45,960 Speaker 2: I mean the buying administration by itself could raise the 245 00:14:46,600 --> 00:14:49,200 Speaker 2: what's required in the credible fear interview. 246 00:14:48,840 --> 00:14:53,160 Speaker 5: Right, Well, they've already done that visa the asylum. That's 247 00:14:53,160 --> 00:14:56,080 Speaker 5: certainly true. And like I said, what that's done is 248 00:14:56,120 --> 00:15:00,560 Speaker 5: it's sprinkled into withholding of removal, meaning now so everybody 249 00:15:00,600 --> 00:15:03,720 Speaker 5: has to use because of this asylum ban, the withholding 250 00:15:03,760 --> 00:15:06,600 Speaker 5: of removal. Though, remember the asylum ban is also being 251 00:15:06,640 --> 00:15:09,720 Speaker 5: litigated and the Ninth Circuit has shut that down for 252 00:15:09,720 --> 00:15:12,080 Speaker 5: a little while. The asylum ban, so it comes on 253 00:15:12,160 --> 00:15:15,160 Speaker 5: and it comes off. But even if the withholding of 254 00:15:15,240 --> 00:15:19,360 Speaker 5: removal standard is implemented, we're still talking about a standard 255 00:15:19,400 --> 00:15:23,320 Speaker 5: that permits something on average of fifty to sixty percent 256 00:15:23,360 --> 00:15:26,840 Speaker 5: of people to enter, as opposed to eighty percent, which 257 00:15:26,880 --> 00:15:31,400 Speaker 5: is the lower credible fear standard. And I think the 258 00:15:31,520 --> 00:15:34,920 Speaker 5: kinds of changes people are talking about implementing would bring 259 00:15:34,960 --> 00:15:38,680 Speaker 5: that number far lower and require far more evidence on 260 00:15:38,800 --> 00:15:42,120 Speaker 5: the upfront initial threshold, such that maybe you'd have a 261 00:15:42,200 --> 00:15:45,240 Speaker 5: twenty five to thirty percent chance of being able to 262 00:15:45,400 --> 00:15:48,400 Speaker 5: enter into the United States because you'd have to articulate 263 00:15:48,760 --> 00:15:53,400 Speaker 5: not just something that could eventually be a logical case 264 00:15:53,560 --> 00:15:57,640 Speaker 5: for asylum flash withholding of removal, but you'd actually have 265 00:15:57,760 --> 00:16:00,560 Speaker 5: to have some evidence on your person at the moment 266 00:16:00,920 --> 00:16:04,160 Speaker 5: when you arrive, or some other riight theory of a 267 00:16:04,280 --> 00:16:08,920 Speaker 5: well explained theory of your case such that that would 268 00:16:09,000 --> 00:16:10,760 Speaker 5: be the only way that would permit you to enter 269 00:16:10,800 --> 00:16:11,840 Speaker 5: the United States. 270 00:16:12,040 --> 00:16:17,080 Speaker 2: Because I was reading that three million people are awaiting 271 00:16:17,400 --> 00:16:21,080 Speaker 2: their immigration court hearings, so they're free to stay and 272 00:16:21,480 --> 00:16:25,240 Speaker 2: after six months legally work until they come before it judge. 273 00:16:25,560 --> 00:16:28,600 Speaker 2: And that's one of the reasons drawing so many people 274 00:16:28,960 --> 00:16:30,960 Speaker 2: to cross, because they know. 275 00:16:30,920 --> 00:16:34,920 Speaker 5: That that's absolutely right. The idea is a backlog. Begets 276 00:16:34,920 --> 00:16:38,600 Speaker 5: the backlog because the longer the backlog is, the more 277 00:16:39,000 --> 00:16:40,680 Speaker 5: you're going to have people wanting to come in to 278 00:16:40,760 --> 00:16:43,160 Speaker 5: exploit the backlog. Because if there's only a two month 279 00:16:43,240 --> 00:16:46,800 Speaker 5: backlog and you will have to spend twenty thousand dollars 280 00:16:46,840 --> 00:16:49,120 Speaker 5: to come into the US I legally and you'll get 281 00:16:49,200 --> 00:16:53,120 Speaker 5: deported in two months, that's not really encouraging people to come. 282 00:16:53,160 --> 00:16:55,880 Speaker 5: But if there's a five to six year backlog, which 283 00:16:55,920 --> 00:16:58,640 Speaker 5: is what we have now, people then can say, well, 284 00:16:58,680 --> 00:17:00,960 Speaker 5: even if I get ordered to poor five six years 285 00:17:01,000 --> 00:17:03,520 Speaker 5: from now, who cares, I was still able to come 286 00:17:03,520 --> 00:17:06,239 Speaker 5: and work for five or six years. I'll take that 287 00:17:06,400 --> 00:17:09,400 Speaker 5: risk and hopefully I won't even get supported in those 288 00:17:09,440 --> 00:17:11,800 Speaker 5: sext fights to six years. So that's one of the 289 00:17:11,840 --> 00:17:15,160 Speaker 5: problems is if the backlog begets the backlog, and at 290 00:17:15,160 --> 00:17:17,439 Speaker 5: some point people are gonna have to decide what to do, 291 00:17:17,520 --> 00:17:22,040 Speaker 5: because yes, it does seem very strange that you would 292 00:17:22,040 --> 00:17:24,840 Speaker 5: forgive those three to four million people and what could 293 00:17:24,880 --> 00:17:27,200 Speaker 5: end up being six million by the end of this year, 294 00:17:27,440 --> 00:17:29,880 Speaker 5: but it also seems very unlikely you're going to get 295 00:17:29,880 --> 00:17:33,240 Speaker 5: through those cases. And so at the end of the day, 296 00:17:33,320 --> 00:17:36,359 Speaker 5: you'd have to decide where are you gonna sort of 297 00:17:36,440 --> 00:17:39,600 Speaker 5: start from scratch so that we can make these cases 298 00:17:39,640 --> 00:17:42,640 Speaker 5: cases that can get done in a month or two 299 00:17:42,760 --> 00:17:46,000 Speaker 5: and not cases that take three, four or five six 300 00:17:46,119 --> 00:17:49,120 Speaker 5: years to do. And so that's the problem is there's 301 00:17:49,119 --> 00:17:52,119 Speaker 5: gonna have to be a realistic come to grips moment 302 00:17:52,560 --> 00:17:55,600 Speaker 5: with this system where people say, look, we can't have 303 00:17:55,720 --> 00:17:58,920 Speaker 5: backlogs that beget more backlog. We're gonna have to cut 304 00:17:58,960 --> 00:18:02,240 Speaker 5: some people off and say those people are not our priority, 305 00:18:02,280 --> 00:18:04,800 Speaker 5: and we're going to have to prioritize the people coming 306 00:18:04,840 --> 00:18:07,840 Speaker 5: in right this second and really focus on getting them 307 00:18:07,840 --> 00:18:09,080 Speaker 5: out as soon as possible. 308 00:18:09,720 --> 00:18:13,879 Speaker 2: And lawmakers went home over the holidays without the Senate 309 00:18:13,920 --> 00:18:16,640 Speaker 2: negotiations over immigration resolved. 310 00:18:16,960 --> 00:18:20,040 Speaker 5: Everybody's very pessimistic that there will be a deal made 311 00:18:20,240 --> 00:18:23,879 Speaker 5: because there's different factors. There's the factor of that the 312 00:18:23,920 --> 00:18:27,560 Speaker 5: Democrats aren't getting anything pro immigration in exchange for these 313 00:18:27,560 --> 00:18:31,720 Speaker 5: immigration enforcement provisions. So there's some segment of the Democratic 314 00:18:31,720 --> 00:18:34,119 Speaker 5: Party that says, well, what do I care about Ukraine funding? 315 00:18:34,240 --> 00:18:36,520 Speaker 5: That doesn't do anything for me? Why am I trading 316 00:18:36,960 --> 00:18:40,280 Speaker 5: Ukraine funding for immigration? It needs to be immigration for immigration. 317 00:18:40,880 --> 00:18:44,840 Speaker 5: So that's number one. Number two is the Republican fear 318 00:18:45,280 --> 00:18:48,680 Speaker 5: that whatever the agreement they will come to will immediately 319 00:18:48,760 --> 00:18:52,399 Speaker 5: be rejected by President Biden, such that then there's no 320 00:18:52,520 --> 00:18:55,080 Speaker 5: point because if he says this is a terrible agreement 321 00:18:55,440 --> 00:18:58,920 Speaker 5: and it doesn't do anything, then everybody will fall off 322 00:18:58,960 --> 00:19:01,520 Speaker 5: and all that work will be well. And so that 323 00:19:01,640 --> 00:19:05,480 Speaker 5: seems to be the double problem. Everybody's thought of company. 324 00:19:05,840 --> 00:19:09,920 Speaker 2: Well, we'll see if anything changes after the holiday. Thanks 325 00:19:09,960 --> 00:19:13,240 Speaker 2: so much, Leon, as always, that's Leon Fresco of Holland 326 00:19:13,320 --> 00:19:16,840 Speaker 2: and Knight. Coming up next the NC Double A on trial. 327 00:19:17,160 --> 00:19:20,760 Speaker 2: You're listening to Bloomberg Opening statements kicked off Monday in 328 00:19:20,800 --> 00:19:23,680 Speaker 2: a case that may shape the future of college sports. 329 00:19:24,119 --> 00:19:28,320 Speaker 2: A National Labor Relations Board administrative law judge is considering 330 00:19:28,400 --> 00:19:32,879 Speaker 2: whether the NCAA, the PAC twelve Conference, and the University 331 00:19:32,880 --> 00:19:38,600 Speaker 2: of Southern California violated federal law by misclassifying student football 332 00:19:38,640 --> 00:19:43,520 Speaker 2: and basketball players as non employees. N LRB attorneys say 333 00:19:43,560 --> 00:19:48,480 Speaker 2: that student athletes should legally be considered employees. The defendants 334 00:19:48,520 --> 00:19:52,560 Speaker 2: have denied all wrongdoing, and an attorney for the university 335 00:19:52,720 --> 00:19:56,760 Speaker 2: said that student athletes are not in service to the university. 336 00:19:57,119 --> 00:20:02,000 Speaker 2: To the contrary, the students are beneficial of USC services. 337 00:20:02,680 --> 00:20:05,720 Speaker 2: The case is one part of a patchwork of litigation 338 00:20:05,880 --> 00:20:09,720 Speaker 2: against the NCAA, which has come under heavy fire for 339 00:20:09,800 --> 00:20:13,720 Speaker 2: preventing players from sharing in the billions that universities make 340 00:20:13,800 --> 00:20:18,480 Speaker 2: on college athletics every year. Joining me is Martiney Dell, 341 00:20:18,680 --> 00:20:23,280 Speaker 2: co chair of Gulsen and Stores Sports law practice in 342 00:20:23,320 --> 00:20:27,720 Speaker 2: this trial. Is the NCAA's business model at stake? 343 00:20:29,320 --> 00:20:32,639 Speaker 1: You bet so. The whole purpose of the trial is 344 00:20:32,720 --> 00:20:37,840 Speaker 1: to challenge whether or not student athletes a term that 345 00:20:38,040 --> 00:20:43,280 Speaker 1: the National Liberations Board does not like our employees and 346 00:20:43,680 --> 00:20:48,040 Speaker 1: therefore not students for classification purposes under the National Labor 347 00:20:48,080 --> 00:20:52,240 Speaker 1: Relations Act. It ultimately held to be employees. This changes 348 00:20:52,280 --> 00:20:56,280 Speaker 1: the whole model of amateurism in very significant ways. 349 00:20:57,160 --> 00:21:00,719 Speaker 2: So why is it the NLRB that's bringing the lawsuit 350 00:21:01,320 --> 00:21:04,000 Speaker 2: instead of, you know, the individual players. 351 00:21:04,680 --> 00:21:07,800 Speaker 1: So there's a group of players. So it's actually both 352 00:21:08,040 --> 00:21:12,639 Speaker 1: a group of players complained under the title of a 353 00:21:12,920 --> 00:21:19,040 Speaker 1: concerned students and the National Labor Relations Board Region number 354 00:21:19,080 --> 00:21:23,080 Speaker 1: thirty one, which is Southern California, looked into it and 355 00:21:23,359 --> 00:21:27,359 Speaker 1: issued what they call an unfair labor practice. So this 356 00:21:27,480 --> 00:21:31,880 Speaker 1: trial is over the unfair labor practice issued by the 357 00:21:31,920 --> 00:21:36,480 Speaker 1: local district of the National Labor Relations Board against USC, 358 00:21:37,320 --> 00:21:40,040 Speaker 1: the PAC twelve Conference, and the NCAA. 359 00:21:40,480 --> 00:21:43,320 Speaker 2: It's very hard to keep track of what's going on 360 00:21:43,520 --> 00:21:48,280 Speaker 2: with college athletes as they're called at this point. I mean, 361 00:21:48,320 --> 00:21:52,200 Speaker 2: it seems like there's litigation going on here and there. 362 00:21:52,680 --> 00:21:54,520 Speaker 2: Is that true or is it just seen that way? 363 00:21:55,040 --> 00:21:58,439 Speaker 1: What it seems like is the reality. So let me 364 00:21:58,440 --> 00:22:00,399 Speaker 1: see if I can unpack that just the little bit. 365 00:22:00,440 --> 00:22:05,359 Speaker 1: There are antitrust suits flying around principally now in the 366 00:22:05,400 --> 00:22:10,399 Speaker 1: Northern District of California as to whether student athletes ought 367 00:22:10,440 --> 00:22:13,520 Speaker 1: to be paid to play. This is an outgrowth of 368 00:22:13,600 --> 00:22:17,959 Speaker 1: what we've previously talked about. The Olston case. Also in 369 00:22:18,119 --> 00:22:21,040 Speaker 1: the Northern District of California, there has been a class 370 00:22:21,080 --> 00:22:29,080 Speaker 1: certification of students for monetizing their image and likeness rights 371 00:22:30,040 --> 00:22:33,280 Speaker 1: during the period they were excluded from monetizing their name, 372 00:22:33,320 --> 00:22:38,560 Speaker 1: image and likeness rights. So those are two separate movements 373 00:22:38,600 --> 00:22:42,919 Speaker 1: going on. Third, we have the National Labor Relations Board 374 00:22:43,280 --> 00:22:47,560 Speaker 1: proceeding here, and fourth we have in the Third Circuit 375 00:22:47,600 --> 00:22:52,080 Speaker 1: Court of Appeals an appeal from the denial of a 376 00:22:52,200 --> 00:22:57,000 Speaker 1: motion to dismiss by the District Court judge in which 377 00:22:57,080 --> 00:23:00,720 Speaker 1: the District Court judge essentially held that the Fairly Standards 378 00:23:00,760 --> 00:23:03,400 Speaker 1: Act ought to apply to student athletes. 379 00:23:04,560 --> 00:23:09,640 Speaker 2: The NCAA recently changed the rules governing whether students can 380 00:23:09,680 --> 00:23:13,439 Speaker 2: profit from their names, images, and likenesses. Is that at 381 00:23:13,480 --> 00:23:14,800 Speaker 2: all an issue in this case? 382 00:23:15,280 --> 00:23:19,320 Speaker 1: So only marginally, And what I mean by that is 383 00:23:19,840 --> 00:23:24,760 Speaker 1: that the National Labor Relations Board uses the concept that 384 00:23:24,960 --> 00:23:28,480 Speaker 1: students can now monetize their name, image and likeness rights 385 00:23:29,040 --> 00:23:32,879 Speaker 1: as further evidence of the fact that they are more 386 00:23:33,080 --> 00:23:37,440 Speaker 1: like employees who are seeking to get part of that 387 00:23:37,600 --> 00:23:41,399 Speaker 1: revenue pot that the universities hold than they are as students. 388 00:23:41,760 --> 00:23:43,720 Speaker 1: But it's not directly impacted. 389 00:23:44,359 --> 00:23:48,520 Speaker 2: Let's talk about opening statements which took place on Monday, 390 00:23:49,160 --> 00:23:51,879 Speaker 2: tell us what the NLRB's position is. 391 00:23:52,760 --> 00:23:55,760 Speaker 1: So I think there needs to be a little bit 392 00:23:55,840 --> 00:23:59,760 Speaker 1: of background here as to what's going on. And it's 393 00:23:59,800 --> 00:24:02,639 Speaker 1: not a long history, but it goes back about nine 394 00:24:02,720 --> 00:24:06,760 Speaker 1: years here. So nine years ago, in twenty fourteen, the 395 00:24:06,840 --> 00:24:10,919 Speaker 1: National Labor Relations Board brought a case against Northwestern seeking 396 00:24:10,920 --> 00:24:13,960 Speaker 1: to declare student athletes as employees within the meaning of 397 00:24:14,000 --> 00:24:18,600 Speaker 1: the National Labor Relations Act. At the level we're talking 398 00:24:18,600 --> 00:24:21,879 Speaker 1: about now, which is the administrative ward judge level, the 399 00:24:22,000 --> 00:24:26,560 Speaker 1: NLRB was successful. According to the administrative law judge, the 400 00:24:27,359 --> 00:24:32,600 Speaker 1: NLRB successfully had shown that student athletes were working for 401 00:24:32,680 --> 00:24:37,040 Speaker 1: the university. This is the Northwestern football players upwards of 402 00:24:37,080 --> 00:24:42,560 Speaker 1: sixty hours per week during the season and upwards of 403 00:24:43,080 --> 00:24:48,280 Speaker 1: forty hours per week during off season periods doing football 404 00:24:48,400 --> 00:24:53,040 Speaker 1: that gave them less and less time for things like studies, 405 00:24:53,080 --> 00:24:59,399 Speaker 1: attending classes, and the other types of activities that college 406 00:24:59,440 --> 00:25:03,639 Speaker 1: students might partake in. Then, at the National Labor Relations 407 00:25:03,680 --> 00:25:06,880 Speaker 1: Board level, that is the top level, the National Labor 408 00:25:06,920 --> 00:25:12,040 Speaker 1: Relations Board vacated the award because it found that this 409 00:25:12,160 --> 00:25:18,320 Speaker 1: might destabilize labor relations. Reason for that is Northwestern is 410 00:25:18,359 --> 00:25:22,280 Speaker 1: a private university. It was at that point the only 411 00:25:22,359 --> 00:25:26,760 Speaker 1: private university in the Big Ten Conference, and the other 412 00:25:27,359 --> 00:25:31,120 Speaker 1: schools in the Big Ten Conference being public universities, were 413 00:25:31,119 --> 00:25:35,080 Speaker 1: not subject to the National Labor Relations Act, so therefore 414 00:25:35,119 --> 00:25:40,920 Speaker 1: a differential impact. That issue became dormant from twenty fifteen 415 00:25:41,000 --> 00:25:45,280 Speaker 1: until twenty twenty one. In twenty twenty one, we had 416 00:25:45,320 --> 00:25:50,760 Speaker 1: a cacophony of events. One was, as you noted just earlier, 417 00:25:51,520 --> 00:25:56,200 Speaker 1: you had name, image, and likeness monetization a number of states. 418 00:25:56,200 --> 00:25:58,679 Speaker 1: I think it was upwards of thirty past laws that 419 00:25:58,840 --> 00:26:03,440 Speaker 1: became effective in twenty twenty one, allowing student athletes to 420 00:26:03,480 --> 00:26:09,240 Speaker 1: monetize their name, image, and likeness rights without being penalized 421 00:26:09,280 --> 00:26:16,760 Speaker 1: by the NCAA. The NCAA dropped its prohibition against athletes 422 00:26:16,800 --> 00:26:20,919 Speaker 1: monetizing their name, image and likeness rights in late June 423 00:26:21,080 --> 00:26:23,800 Speaker 1: of twenty twenty one. In June of twenty twenty one, 424 00:26:24,040 --> 00:26:27,800 Speaker 1: the Supreme Court decided the Alston case, which found, among 425 00:26:27,880 --> 00:26:31,840 Speaker 1: other things, that the NCAAA could violate the antitrust laws, 426 00:26:32,080 --> 00:26:35,879 Speaker 1: had violated the anti trust laws and enjoyed certain provisions 427 00:26:35,960 --> 00:26:40,240 Speaker 1: of its compensation rules as being an antitrust violation. In addition, 428 00:26:41,040 --> 00:26:44,439 Speaker 1: President Biden appointed a new General Council for the National 429 00:26:44,520 --> 00:26:50,960 Speaker 1: Labor Relations Board, Jennifer Abruso and Miss Bruso issued in 430 00:26:51,000 --> 00:26:55,440 Speaker 1: September twenty twenty one an advisory stating that the view 431 00:26:55,520 --> 00:26:58,399 Speaker 1: that student athletes are employees within the meaning of the 432 00:26:58,480 --> 00:27:03,600 Speaker 1: National Labor Relations Act was one that she hoped would 433 00:27:03,600 --> 00:27:06,800 Speaker 1: be litigated and she was looking for a test case. 434 00:27:07,560 --> 00:27:11,639 Speaker 1: And in the wake of that, these USC student athletes 435 00:27:12,400 --> 00:27:17,200 Speaker 1: filed a petition which was adopted by the Region thirty 436 00:27:17,240 --> 00:27:20,520 Speaker 1: one director, and that'smuth subject of the hearings this week. 437 00:27:21,359 --> 00:27:25,600 Speaker 1: In short, the National Labor Relations Board is claiming that 438 00:27:25,640 --> 00:27:31,119 Speaker 1: the student athletes are employees. By calling them student athletes, 439 00:27:31,640 --> 00:27:35,199 Speaker 1: the school is misclassifying their status and they should be 440 00:27:35,400 --> 00:27:39,520 Speaker 1: entitled therefore to all the rights and benefits of the 441 00:27:39,600 --> 00:27:44,960 Speaker 1: National Labor Relations Act, including the right to unionize, the 442 00:27:45,080 --> 00:27:49,440 Speaker 1: right to file unfair labor practice charges, and the right 443 00:27:49,520 --> 00:27:52,879 Speaker 1: to seek and use the economic weapons of the National 444 00:27:52,960 --> 00:27:56,280 Speaker 1: Labor Relations Act, including the right to strike. 445 00:27:57,280 --> 00:28:02,359 Speaker 2: And what is the response of u USC. What's USC's case. 446 00:28:03,240 --> 00:28:09,120 Speaker 1: First, the students are students and primarily and not employees. 447 00:28:09,520 --> 00:28:12,320 Speaker 1: They go to school, they get an education, they're giving 448 00:28:12,359 --> 00:28:16,320 Speaker 1: grant and aids to get an education. Secondly, that USC 449 00:28:16,359 --> 00:28:18,960 Speaker 1: should not be classified as an employer. Within the meeting 450 00:28:19,080 --> 00:28:20,080 Speaker 1: of the Act. 451 00:28:20,560 --> 00:28:25,760 Speaker 2: The first witnesses were former USC football players, and they 452 00:28:26,280 --> 00:28:33,000 Speaker 2: described how the program officials basically controlled their lives almost 453 00:28:33,000 --> 00:28:34,719 Speaker 2: all year, not just at school. 454 00:28:35,240 --> 00:28:37,880 Speaker 1: That's not a surprise if we look back to the 455 00:28:37,920 --> 00:28:42,800 Speaker 1: Northwestern case, that is the same proof the NLRB adduced, 456 00:28:43,160 --> 00:28:47,160 Speaker 1: and it shows that students who are athletes, particularly in 457 00:28:47,240 --> 00:28:51,800 Speaker 1: the football program, in the basketball program, the revenue generating sports, 458 00:28:51,880 --> 00:28:55,280 Speaker 1: are required to spend a lot of time upwards of 459 00:28:55,440 --> 00:28:59,200 Speaker 1: forty to sixty hours per week throughout the school year 460 00:28:59,600 --> 00:29:05,000 Speaker 1: on revenue generating activities that is, their sport for the university, 461 00:29:05,360 --> 00:29:09,240 Speaker 1: without reaping any of the benefits of creating those revenues. 462 00:29:09,720 --> 00:29:12,520 Speaker 2: You know, to an outside observer, it sounds like the 463 00:29:12,560 --> 00:29:16,840 Speaker 2: student athletes have the best end of this argument. Does 464 00:29:16,840 --> 00:29:18,040 Speaker 2: it appear that way to you? 465 00:29:19,280 --> 00:29:23,640 Speaker 1: I think there is a very distinct argument which the 466 00:29:23,760 --> 00:29:27,200 Speaker 1: NLRB is putting to the side, which is what are 467 00:29:27,240 --> 00:29:31,840 Speaker 1: the educational benefits that these students are getting. If you 468 00:29:31,960 --> 00:29:34,719 Speaker 1: are a student athlete, you're not going to the school 469 00:29:34,920 --> 00:29:39,920 Speaker 1: simply because of its football or basketball program. Hopefully you're 470 00:29:39,920 --> 00:29:42,840 Speaker 1: going there because of the opportunity to get an education too. 471 00:29:43,320 --> 00:29:47,320 Speaker 2: This is a hearing before an administrative law judge. What 472 00:29:47,520 --> 00:29:49,280 Speaker 2: happens next? What's the sequence? 473 00:29:50,000 --> 00:29:53,400 Speaker 1: So once the administrative law judge completes the hearings, which 474 00:29:53,440 --> 00:29:56,960 Speaker 1: is going to take several months given the schedule, the 475 00:29:57,000 --> 00:30:00,480 Speaker 1: administrative law judge issues of decision. The decision can then 476 00:30:00,520 --> 00:30:05,000 Speaker 1: be appealed to the full National Labor Relations Board in Washington, DC, 477 00:30:05,720 --> 00:30:09,960 Speaker 1: which then issues its own decision, and that may be appealed, 478 00:30:09,960 --> 00:30:12,880 Speaker 1: I believe, to a federal circuit Court of Appeals. 479 00:30:13,160 --> 00:30:18,080 Speaker 2: NCAA President Charlie Baker. Earlier this month, there was a 480 00:30:18,080 --> 00:30:23,200 Speaker 2: proposal to directly compensate student athletes. He floated that concept 481 00:30:23,200 --> 00:30:26,560 Speaker 2: in a letter. Would that solve this problem? And is 482 00:30:26,600 --> 00:30:27,560 Speaker 2: that going anywhere? 483 00:30:29,360 --> 00:30:32,400 Speaker 1: Let me take that in reverse order. Okay, I do 484 00:30:32,480 --> 00:30:35,400 Speaker 1: not know if it is going anywhere. It's an intriguing 485 00:30:35,560 --> 00:30:40,120 Speaker 1: proposal because there's an additional part to that, which is 486 00:30:40,640 --> 00:30:45,320 Speaker 1: that Governor Baker has floated the idea of creating a 487 00:30:45,480 --> 00:30:49,000 Speaker 1: new power division, maybe out of the Power five, but 488 00:30:49,080 --> 00:30:54,280 Speaker 1: a new power division which would compensate athletes. It does 489 00:30:54,320 --> 00:30:58,320 Speaker 1: not provide for compensation of all athletes. In all sports 490 00:30:58,640 --> 00:31:00,120 Speaker 1: at all schools. 491 00:31:00,480 --> 00:31:03,160 Speaker 2: And tell us what it would look like if the 492 00:31:03,280 --> 00:31:10,000 Speaker 2: National Labor Relations Board had jurisdiction over student athletes as employees. 493 00:31:10,840 --> 00:31:13,000 Speaker 1: I think what we need to look at here are 494 00:31:13,600 --> 00:31:17,880 Speaker 1: that a system in which the National Labor Relations Board 495 00:31:17,960 --> 00:31:22,040 Speaker 1: would assume jurisdiction over students as employees would have the 496 00:31:22,360 --> 00:31:26,880 Speaker 1: ability to create differential impacts on students and schools in 497 00:31:26,960 --> 00:31:29,920 Speaker 1: three ways. One, different roles for schools in the same 498 00:31:29,960 --> 00:31:33,200 Speaker 1: conference because you have schools in the same conference which 499 00:31:33,200 --> 00:31:36,440 Speaker 1: are private and some which are public. USC, for example, 500 00:31:36,520 --> 00:31:39,480 Speaker 1: is joining the Big Ten. The Big Ten will now 501 00:31:39,560 --> 00:31:42,920 Speaker 1: have two private schools, USC and Northwestern, and the rest 502 00:31:42,920 --> 00:31:45,560 Speaker 1: of all public schools which are not subject to the 503 00:31:45,680 --> 00:31:51,400 Speaker 1: National Labor Relations Board jurisdiction. Second is differential impact on frankly, 504 00:31:51,480 --> 00:31:55,000 Speaker 1: all economically challenged students who look to college athletics as 505 00:31:55,000 --> 00:31:59,040 Speaker 1: means to get a higher education by possibly having the 506 00:31:59,040 --> 00:32:02,600 Speaker 1: schools get rid of anton aid programs for them because 507 00:32:02,600 --> 00:32:05,880 Speaker 1: they can't afford it under a new regime. And third 508 00:32:06,040 --> 00:32:10,960 Speaker 1: is a potential differential impact on women who may find 509 00:32:11,000 --> 00:32:14,360 Speaker 1: their sports downsized as a result of schools not being 510 00:32:14,400 --> 00:32:17,440 Speaker 1: able to afford a full college program thanks Marty. 511 00:32:17,720 --> 00:32:20,800 Speaker 2: That's Martiny Dell, coacher of the sports law practice at 512 00:32:20,800 --> 00:32:23,680 Speaker 2: Gulston and Stores. And that's it for this edition of 513 00:32:23,680 --> 00:32:26,320 Speaker 2: The Bloomberg Law Show. Remember you can always get the 514 00:32:26,400 --> 00:32:29,640 Speaker 2: latest legal news on our Bloomberg Law Podcast. You can 515 00:32:29,680 --> 00:32:33,880 Speaker 2: find them on Apple Podcasts, Spotify, and at www dot 516 00:32:33,920 --> 00:32:38,080 Speaker 2: Bloomberg dot com, slash podcast, Slash Law, And remember to 517 00:32:38,120 --> 00:32:41,160 Speaker 2: tune into The Bloomberg Law Show every weeknight at ten 518 00:32:41,240 --> 00:32:45,000 Speaker 2: pm Wall Street Time. I'm June Grosso and you're listening 519 00:32:45,120 --> 00:32:45,760 Speaker 2: to Bloomberg