Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
Speaker 2: Next year at the Supreme Court promises to be a
Speaker 2: tumultuous one with cases on abortion, the Second Amendment, and
Speaker 2: the many legal issues involving former President Donald Trump. Joining
Speaker 2: me for the second half of our look at what's
Speaker 2: happening at the Court next year is Bloomberg Supreme Court
Speaker 2: reporter Greg Store. Greg. There's going to be a sort
Speaker 2: of showdown at the Court over agency power with two
Speaker 2: cases involving the Chevron Doctrine, which is a thirty nine
Speaker 2: year old precedent, and this will have major implications for
Speaker 2: all kinds of government regulations.
Speaker 3: Yeah, it is one of those cases that is cited
Speaker 3: all the time in federal administrative law cases, meaning like
Speaker 3: challenges to agency regulations. And basically what the Chevron Doctrine
Speaker 3: says is, if there's a statute that is ambiguous, if
Speaker 3: the agency interprets it that ambiguous statute in a certain way,
Speaker 3: and if that's a reasonable interpretation, we the courts are
Speaker 3: going to defer to the agency. And so it gives
Speaker 3: agencies regulators a certain amount of power to define the
Speaker 3: scope of their mission and their authority and the Supreme Court.
Speaker 3: This very conservative Supreme Court has been expressly a good
Speaker 3: deal skepticism about the Chevron doctrine and in fact has
Speaker 3: been kind of narrowing it over the years, and now
Speaker 3: they have a case where they might just overturn it.
Speaker 3: It's a case that involves a fee that is charged
Speaker 3: to herring fishermen or could be charged to herring fishermen
Speaker 3: to pay for federal monitors aboard their vessels, and the
Speaker 3: argument is that federal regulators didn't have the authority to
Speaker 3: impose that fee. In they don't necessarily have to overturn
Speaker 3: the Chevron doctrine in the case, but if they do,
Speaker 3: it could really represent a major shift in terms of
Speaker 3: what agencies are able to do, how authority they have
Speaker 3: to enact new regulations, and it would really be kind
Speaker 3: of a revolution in this arcane the very very important
Speaker 3: world of federal administrative law.
Speaker 2: And several conservative justices have written about their opposition to Chevron,
Speaker 2: though the Court has never actually revisited it.
Speaker 3: Right, so justices like Clarence Thomas Neil Gorsich, you expect
Speaker 3: them to be very very skeptical when the Court considers it.
Speaker 3: There's another aspect of this issue. In the case a
Speaker 3: couple terms ago involving the EPA and regulation of climate change,
Speaker 3: the Supreme Court said that not only are we not
Speaker 3: going to give Chevron deference to the EPA when it
Speaker 3: decides it has brought authority to impose regulations on power plants,
Speaker 3: but we're actually going to start with the assumption that
Speaker 3: Congress wouldn't have delegated this authority to the EPA unless
Speaker 3: it was explicitly clear. Because this is a so called
Speaker 3: major question. It is so important that we just aren't
Speaker 3: going to be lead that Congress meant to give the
Speaker 3: EPA authority over it unless it's crystal clear in the statute.
Speaker 3: So this notion of deferring to agencies is already under
Speaker 3: pressure from a lot of different angles.
Speaker 2: And you've written about how it's sort of like the
Speaker 2: dream of conservatives and critics of big government. How critics
Speaker 2: of big government have organized to fight the Chevron doctrine
Speaker 2: in ways similar to how anti abortion groups organized to
Speaker 2: fight against Roe v. Wade.
Speaker 3: Yeah, there was a massive pile of briefs on the
Speaker 3: side of the fishermen in this case, all manner of
Speaker 3: conservative groups weighing and in business groups to some degree
Speaker 3: weighing in support. Kind of the interesting difference between Roe v.
Speaker 3: Wade and Chevron is that early on when Chevron, when
Speaker 3: the ruling came down in nineteen eighty four, it was
Speaker 3: something that conservatives tended to like. That was a time
Speaker 3: when Ronald Reagan was president Republican and conservatives tended to
Speaker 3: like what agencies were doing, and so they were happy
Speaker 3: to have courts deferring two agencies. Over time, particularly as
Speaker 3: Democrats came into the White House, conservatives came to think
Speaker 3: it was a bad idea. They wanted judges to have
Speaker 3: more authority to decide how broad federal statutes are.
Speaker 2: Although presidents of both parties have leaned on the Chevron doctrine.
Speaker 2: So there are two cases. One that the Court decided
Speaker 2: to take in May, the Loper Bright case, and then
Speaker 2: a second case the Court decided to take in October, Relentless,
Speaker 2: Perhaps since appropriately entitled Relentless versus Department of Commerce. Explain
Speaker 2: why the justices may have taken that second case.
Speaker 3: Yeah, So, first of one, I should say that they're
Speaker 3: otherwise exactly the same, the exact same issue. It's both
Speaker 3: about this see for monitors on Herring votes. The difference
Speaker 3: is that in the first case, the lober Bright case,
Speaker 3: Justice Katachi bron Jackson is recused from it. She had
Speaker 3: been involved with it when she was a Federal Appeals
Speaker 3: Court judge on the DC Circuit, And so by adding
Speaker 3: the second case, the Court guarantees they will have nine
Speaker 3: justices to decide it. Now, I'm given the conservative leanings
Speaker 3: of this court, they may not need nine justices. They
Speaker 3: may already have the five they need to overturn the
Speaker 3: Chevran decision. But at least Justice Jackson will have a
Speaker 3: chance to weigh in in the case.
Speaker 2: And the Supreme Court is going to delve into several
Speaker 2: cases involving social media. They agreed to review Florida and
Speaker 2: Texas laws that would sharply restrict the ability of the
Speaker 2: largest social media platforms to police political misinformation. The laws
Speaker 2: are a little bit different, but similar.
Speaker 3: Yeah, So both of them basically restrict the editorial discretion
Speaker 3: of social media companies. Restrict the ability of social media
Speaker 3: companies to decide on their own whether certain posts should
Speaker 3: be taken down or certain users kicked off the platform.
Speaker 3: The argument that the states are making is that, oh,
Speaker 3: these social media companies discriminate against conservative viewpoints and so
Speaker 3: we need to pose some regulations. And the two laws
Speaker 3: are different in terms of their exact provisions. The Texas law,
Speaker 3: for example, includes a broader provision that essentially says that
Speaker 3: social media companies have to be viewpoint neutral. They have
Speaker 3: to treat conservative viewpoints and liberal viewpoints alike. The Florida
Speaker 3: law has a provision in it that requires social media companies,
Speaker 3: whenever they do something take down a post, to give
Speaker 3: a detailed explanation of why they did that. So social
Speaker 3: media companies their trade group are lodging a first Amendment
Speaker 3: challenge to both laws, and the devil may be in
Speaker 3: the detailed to some degree. For example, the Florida law,
Speaker 3: a federal appeals court upheld part of it and blocked
Speaker 3: part of it, So there may be some parsing that
Speaker 3: the Supreme Court decides to do in terms of whether
Speaker 3: these laws are constitutional, and that.
Speaker 2: Appeals court, the Eleventh Circuit, is one of the most
Speaker 2: conservative circuits in the country, but not as conservative as
Speaker 2: the Fifth Circuit, which upheld the Texas law. Former President
Speaker 2: Donald Trump filed a brief in support of the Florida law.
Speaker 2: How much could this decision shape the rules online in
Speaker 2: the run up to the twenty twenty four election.
Speaker 3: That's a good question, and I think my answer is
Speaker 3: perhaps not as much as I would have thought a
Speaker 3: year ago, in that we've seen social media companies X
Speaker 3: for example, the platform formally known as Twitter doing less
Speaker 3: to combat misinformation disinformation on their platform, same thing with
Speaker 3: other social media platforms. So to the extent that these
Speaker 3: laws were trying to crack down on social media companies
Speaker 3: when they were actively trying to remove inaccuracies, you know,
Speaker 3: there's less of that going on anyway, and so the
Speaker 3: practical effect of it might be a little less than
Speaker 3: we thought it was going to be previously.
Speaker 2: Greg looking at what's coming up, do you think that
Speaker 2: this term could be as controversial as two terms ago.
Speaker 3: Well, that's a pretty high bar to set the term
Speaker 3: two years ago. That, of course, is the term where,
Speaker 3: among other things, the Court overturned Roe v. Wade, sot
Speaker 3: up a tough new test for gun regulations. This term
Speaker 3: right now, we have a lot of very important cases,
Speaker 3: but not historic cases in quite the same way as
Speaker 3: we had that term. Now, the big caveat to all
Speaker 3: that is Donald Trump is out there, and there are
Speaker 3: all manner of Donald Trump related cases that are percolating,
Speaker 3: including the question of whether he is immune from criminal
Speaker 3: charges over things he did as president to try to
Speaker 3: overturn the election results leading up to the January sixth
Speaker 3: riot at the Capitol. There's also the question of whether
Speaker 3: the Constitution's fourteenth amend and the insurrection clause in there
Speaker 3: precludes him from becoming president again. Those are enormously big
Speaker 3: issues with both legal and political significance, and so those
Speaker 3: cases may end up being the things that power above
Speaker 3: everything else that the Supreme Court has this term.
Speaker 2: So I think you'll be quite busy next year. Greg,
Speaker 2: Thanks so much for running it all down for us.
Speaker 2: That's Bloomberg Supreme Court reporter Greg Store. Coming up next
Speaker 2: on the Bloomberg Law Show, Top US officials are going
Speaker 2: to be traveling to Mexico in an attempt to deal
Speaker 2: with the record numbers of people crossing the southern border.
Speaker 2: I'm June Gross. When you're listening to Bloomberg, the US
Speaker 2: is facing an unprecedented surge of migrants at the southern border. Yesterday,
Speaker 2: US Customs and Border Protection encountered more than twelve thousand
Speaker 2: undocumented migrants crossing the border for the third straight day,
Speaker 2: a new record. National Security Council official John Kirby said
Speaker 2: President Joe Biden and the President of Mexico agreed during
Speaker 2: a call today that more enforcement at the border between
Speaker 2: the two countries is needed, as record numbers of people
Speaker 2: trying to cross have disrupted trade.
Speaker 4: One of the things that the President Lopez Overdoor and
Speaker 4: the President talked about today was trying to work on
Speaker 4: getting at the root causes of migration. We're seeing record
Speaker 4: levels of people, more people are on the move in
Speaker 4: this hemisphere than that has been the case since World
Speaker 4: War Two.
Speaker 2: Top US officials, including Secretary of State Anthony Blincoln and
Speaker 2: Homeland Security Secretary Alejandro Majorcis, will travel to Mexico in
Speaker 2: the coming days to meet with President Lopez Oberdoor on
Speaker 2: the issue. My guest is immigration law expertly On Fresco,
Speaker 2: a partner at Holland and Knight Leon. There was a
Speaker 2: record number of so called migrant encounters on the southern
Speaker 2: border this year, with two point four million migrants crossing
Speaker 2: the border. Is a Biden administration doing everything it has
Speaker 2: the legal power to do.
Speaker 5: So here's the main point to take from this, which
Speaker 5: is there is undoubtedly one thing that the Biden administration
Speaker 5: is not doing that. The Trump administration was doing that.
Speaker 5: It theoretically has the legal ability to do, which is
Speaker 5: to remain in Mexico. Program. Now, that would require cooperation
Speaker 5: from Mexico, which Mexico currently states that it wouldn't provide. Now,
Speaker 5: if you remember President Trump obtaining that cooperation by saying
Speaker 5: he would create massive paris on cars entering from Mexico,
Speaker 5: which scared the Mexican government into cooperating. It's unclear if
Speaker 5: President Biden would use similar toxics, but the point is
Speaker 5: there is that one arsenal lest where theoretically President Biden
Speaker 5: could create some sort of threats such as sarasun cars,
Speaker 5: which would create an incentive for Mexico to allow remain
Speaker 5: in Mexico and then have all of those individuals placed
Speaker 5: into Mexico waiting for their asylum case to be heard.
Speaker 5: And so you'd have to obviously spend lots of money
Speaker 5: on resources and creating facilities in Mexico for people to
Speaker 5: wait in, and perhaps in creating locations where people could
Speaker 5: obtain legal assistance to do their asylum claim and things
Speaker 5: of this nature. But nevertheless, it's possible, but they're choosing
Speaker 5: not to go down that route. What if it appears
Speaker 5: they're trying to invest in at the moment, are these
Speaker 5: bipartisan negotiations in the Senate to try to come up
Speaker 5: with some statutory authority to do different things by statutes
Speaker 5: than what is currently permitted as opposed to using remaining
Speaker 5: in Mexico.
Speaker 2: What are the sticking points in the Senate between the
Speaker 2: Democrats and the Republicans.
Speaker 5: The problem is this is a basically conceptual disagreement about
Speaker 5: what the problem is visa visa border. The Democrats are
Speaker 5: focused on solving the narrow issue of what is the
Speaker 5: standard that people have to articulate in order to be
Speaker 5: permitted entry into the United States, and they want to
Speaker 5: raise that standard. And what they want to do, which
Speaker 5: is sort of a big concession, is to say if
Speaker 5: a certain amount of people are still coming after we
Speaker 5: raise that standard, then we will actually trigger some sort
Speaker 5: of Title forty two, like automatic expulsion until the numbers
Speaker 5: start coming down. And so even if you had a
Speaker 5: legitimate claim, you'd still have to make it in Mexico.
Speaker 5: That's pretty much where the Democrats want to go, and
Speaker 5: they don't want to do anything more. The Republicans view
Speaker 5: this as sort of a larger problem, which is not
Speaker 5: just that, but also all of the parole groups that
Speaker 5: President Biden is allowing to enter the country currently from Cuba, Venezuela, Nicaragua, Haiti.
Speaker 5: They want to eliminate all of that and say and
Speaker 5: Ukraine also and say that pretty much that whole flow
Speaker 5: has to be shut down. And the problem is the
Speaker 5: Biden administration thinks that those legal parole programs are actually
Speaker 5: lowering the demand for illegal immigration, whereas the Republicans think, no,
Speaker 5: the illegal crossers are coming and it's only the people
Speaker 5: who would have come legally who are applying for the
Speaker 5: legal parole program but that this isn't really reducing any
Speaker 5: flow of illegal immigration. And so for the Republicans, unless
Speaker 5: you end these parole programs, they are claiming they won't
Speaker 5: reach any deal. And for the Democrats this is sort
Speaker 5: of viewed as a non starter because the Democrats are saying,
Speaker 5: we're already making enough concessions on the asylum claims themselves
Speaker 5: without achieving anything to help any immigrants, that we're not
Speaker 5: going to go this final route and limit the president's
Speaker 5: ability to parole people into the country.
Speaker 2: I mean the buying administration by itself could raise the
Speaker 2: what's required in the credible fear interview.
Speaker 5: Right, Well, they've already done that visa the asylum. That's
Speaker 5: certainly true. And like I said, what that's done is
Speaker 5: it's sprinkled into withholding of removal, meaning now so everybody
Speaker 5: has to use because of this asylum ban, the withholding
Speaker 5: of removal. Though, remember the asylum ban is also being
Speaker 5: litigated and the Ninth Circuit has shut that down for
Speaker 5: a little while. The asylum ban, so it comes on
Speaker 5: and it comes off. But even if the withholding of
Speaker 5: removal standard is implemented, we're still talking about a standard
Speaker 5: that permits something on average of fifty to sixty percent
Speaker 5: of people to enter, as opposed to eighty percent, which
Speaker 5: is the lower credible fear standard. And I think the
Speaker 5: kinds of changes people are talking about implementing would bring
Speaker 5: that number far lower and require far more evidence on
Speaker 5: the upfront initial threshold, such that maybe you'd have a
Speaker 5: twenty five to thirty percent chance of being able to
Speaker 5: enter into the United States because you'd have to articulate
Speaker 5: not just something that could eventually be a logical case
Speaker 5: for asylum flash withholding of removal, but you'd actually have
Speaker 5: to have some evidence on your person at the moment
Speaker 5: when you arrive, or some other riight theory of a
Speaker 5: well explained theory of your case such that that would
Speaker 5: be the only way that would permit you to enter
Speaker 5: the United States.
Speaker 2: Because I was reading that three million people are awaiting
Speaker 2: their immigration court hearings, so they're free to stay and
Speaker 2: after six months legally work until they come before it judge.
Speaker 2: And that's one of the reasons drawing so many people
Speaker 2: to cross, because they know.
Speaker 5: That that's absolutely right. The idea is a backlog. Begets
Speaker 5: the backlog because the longer the backlog is, the more
Speaker 5: you're going to have people wanting to come in to
Speaker 5: exploit the backlog. Because if there's only a two month
Speaker 5: backlog and you will have to spend twenty thousand dollars
Speaker 5: to come into the US I legally and you'll get
Speaker 5: deported in two months, that's not really encouraging people to come.
Speaker 5: But if there's a five to six year backlog, which
Speaker 5: is what we have now, people then can say, well,
Speaker 5: even if I get ordered to poor five six years
Speaker 5: from now, who cares, I was still able to come
Speaker 5: and work for five or six years. I'll take that
Speaker 5: risk and hopefully I won't even get supported in those
Speaker 5: sext fights to six years. So that's one of the
Speaker 5: problems is if the backlog begets the backlog, and at
Speaker 5: some point people are gonna have to decide what to do,
Speaker 5: because yes, it does seem very strange that you would
Speaker 5: forgive those three to four million people and what could
Speaker 5: end up being six million by the end of this year,
Speaker 5: but it also seems very unlikely you're going to get
Speaker 5: through those cases. And so at the end of the day,
Speaker 5: you'd have to decide where are you gonna sort of
Speaker 5: start from scratch so that we can make these cases
Speaker 5: cases that can get done in a month or two
Speaker 5: and not cases that take three, four or five six
Speaker 5: years to do. And so that's the problem is there's
Speaker 5: gonna have to be a realistic come to grips moment
Speaker 5: with this system where people say, look, we can't have
Speaker 5: backlogs that beget more backlog. We're gonna have to cut
Speaker 5: some people off and say those people are not our priority,
Speaker 5: and we're going to have to prioritize the people coming
Speaker 5: in right this second and really focus on getting them
Speaker 5: out as soon as possible.
Speaker 2: And lawmakers went home over the holidays without the Senate
Speaker 2: negotiations over immigration resolved.
Speaker 5: Everybody's very pessimistic that there will be a deal made
Speaker 5: because there's different factors. There's the factor of that the
Speaker 5: Democrats aren't getting anything pro immigration in exchange for these
Speaker 5: immigration enforcement provisions. So there's some segment of the Democratic
Speaker 5: Party that says, well, what do I care about Ukraine funding?
Speaker 5: That doesn't do anything for me? Why am I trading
Speaker 5: Ukraine funding for immigration? It needs to be immigration for immigration.
Speaker 5: So that's number one. Number two is the Republican fear
Speaker 5: that whatever the agreement they will come to will immediately
Speaker 5: be rejected by President Biden, such that then there's no
Speaker 5: point because if he says this is a terrible agreement
Speaker 5: and it doesn't do anything, then everybody will fall off
Speaker 5: and all that work will be well. And so that
Speaker 5: seems to be the double problem. Everybody's thought of company.
Speaker 2: Well, we'll see if anything changes after the holiday. Thanks
Speaker 2: so much, Leon, as always, that's Leon Fresco of Holland
Speaker 2: and Knight. Coming up next the NC Double A on trial.
Speaker 2: You're listening to Bloomberg Opening statements kicked off Monday in
Speaker 2: a case that may shape the future of college sports.
Speaker 2: A National Labor Relations Board administrative law judge is considering
Speaker 2: whether the NCAA, the PAC twelve Conference, and the University
Speaker 2: of Southern California violated federal law by misclassifying student football
Speaker 2: and basketball players as non employees. N LRB attorneys say
Speaker 2: that student athletes should legally be considered employees. The defendants
Speaker 2: have denied all wrongdoing, and an attorney for the university
Speaker 2: said that student athletes are not in service to the university.
Speaker 2: To the contrary, the students are beneficial of USC services.
Speaker 2: The case is one part of a patchwork of litigation
Speaker 2: against the NCAA, which has come under heavy fire for
Speaker 2: preventing players from sharing in the billions that universities make
Speaker 2: on college athletics every year. Joining me is Martiney Dell,
Speaker 2: co chair of Gulsen and Stores Sports law practice in
Speaker 2: this trial. Is the NCAA's business model at stake?
Speaker 1: You bet so. The whole purpose of the trial is
Speaker 1: to challenge whether or not student athletes a term that
Speaker 1: the National Liberations Board does not like our employees and
Speaker 1: therefore not students for classification purposes under the National Labor
Speaker 1: Relations Act. It ultimately held to be employees. This changes
Speaker 1: the whole model of amateurism in very significant ways.
Speaker 2: So why is it the NLRB that's bringing the lawsuit
Speaker 2: instead of, you know, the individual players.
Speaker 1: So there's a group of players. So it's actually both
Speaker 1: a group of players complained under the title of a
Speaker 1: concerned students and the National Labor Relations Board Region number
Speaker 1: thirty one, which is Southern California, looked into it and
Speaker 1: issued what they call an unfair labor practice. So this
Speaker 1: trial is over the unfair labor practice issued by the
Speaker 1: local district of the National Labor Relations Board against USC,
Speaker 1: the PAC twelve Conference, and the NCAA.
Speaker 2: It's very hard to keep track of what's going on
Speaker 2: with college athletes as they're called at this point. I mean,
Speaker 2: it seems like there's litigation going on here and there.
Speaker 2: Is that true or is it just seen that way?
Speaker 1: What it seems like is the reality. So let me
Speaker 1: see if I can unpack that just the little bit.
Speaker 1: There are antitrust suits flying around principally now in the
Speaker 1: Northern District of California as to whether student athletes ought
Speaker 1: to be paid to play. This is an outgrowth of
Speaker 1: what we've previously talked about. The Olston case. Also in
Speaker 1: the Northern District of California, there has been a class
Speaker 1: certification of students for monetizing their image and likeness rights
Speaker 1: during the period they were excluded from monetizing their name,
Speaker 1: image and likeness rights. So those are two separate movements
Speaker 1: going on. Third, we have the National Labor Relations Board
Speaker 1: proceeding here, and fourth we have in the Third Circuit
Speaker 1: Court of Appeals an appeal from the denial of a
Speaker 1: motion to dismiss by the District Court judge in which
Speaker 1: the District Court judge essentially held that the Fairly Standards
Speaker 1: Act ought to apply to student athletes.
Speaker 2: The NCAA recently changed the rules governing whether students can
Speaker 2: profit from their names, images, and likenesses. Is that at
Speaker 2: all an issue in this case?
Speaker 1: So only marginally, And what I mean by that is
Speaker 1: that the National Labor Relations Board uses the concept that
Speaker 1: students can now monetize their name, image and likeness rights
Speaker 1: as further evidence of the fact that they are more
Speaker 1: like employees who are seeking to get part of that
Speaker 1: revenue pot that the universities hold than they are as students.
Speaker 1: But it's not directly impacted.
Speaker 2: Let's talk about opening statements which took place on Monday,
Speaker 2: tell us what the NLRB's position is.
Speaker 1: So I think there needs to be a little bit
Speaker 1: of background here as to what's going on. And it's
Speaker 1: not a long history, but it goes back about nine
Speaker 1: years here. So nine years ago, in twenty fourteen, the
Speaker 1: National Labor Relations Board brought a case against Northwestern seeking
Speaker 1: to declare student athletes as employees within the meaning of
Speaker 1: the National Labor Relations Act. At the level we're talking
Speaker 1: about now, which is the administrative ward judge level, the
Speaker 1: NLRB was successful. According to the administrative law judge, the
Speaker 1: NLRB successfully had shown that student athletes were working for
Speaker 1: the university. This is the Northwestern football players upwards of
Speaker 1: sixty hours per week during the season and upwards of
Speaker 1: forty hours per week during off season periods doing football
Speaker 1: that gave them less and less time for things like studies,
Speaker 1: attending classes, and the other types of activities that college
Speaker 1: students might partake in. Then, at the National Labor Relations
Speaker 1: Board level, that is the top level, the National Labor
Speaker 1: Relations Board vacated the award because it found that this
Speaker 1: might destabilize labor relations. Reason for that is Northwestern is
Speaker 1: a private university. It was at that point the only
Speaker 1: private university in the Big Ten Conference, and the other
Speaker 1: schools in the Big Ten Conference being public universities, were
Speaker 1: not subject to the National Labor Relations Act, so therefore
Speaker 1: a differential impact. That issue became dormant from twenty fifteen
Speaker 1: until twenty twenty one. In twenty twenty one, we had
Speaker 1: a cacophony of events. One was, as you noted just earlier,
Speaker 1: you had name, image, and likeness monetization a number of states.
Speaker 1: I think it was upwards of thirty past laws that
Speaker 1: became effective in twenty twenty one, allowing student athletes to
Speaker 1: monetize their name, image, and likeness rights without being penalized
Speaker 1: by the NCAA. The NCAA dropped its prohibition against athletes
Speaker 1: monetizing their name, image and likeness rights in late June
Speaker 1: of twenty twenty one. In June of twenty twenty one,
Speaker 1: the Supreme Court decided the Alston case, which found, among
Speaker 1: other things, that the NCAAA could violate the antitrust laws,
Speaker 1: had violated the anti trust laws and enjoyed certain provisions
Speaker 1: of its compensation rules as being an antitrust violation. In addition,
Speaker 1: President Biden appointed a new General Council for the National
Speaker 1: Labor Relations Board, Jennifer Abruso and Miss Bruso issued in
Speaker 1: September twenty twenty one an advisory stating that the view
Speaker 1: that student athletes are employees within the meaning of the
Speaker 1: National Labor Relations Act was one that she hoped would
Speaker 1: be litigated and she was looking for a test case.
Speaker 1: And in the wake of that, these USC student athletes
Speaker 1: filed a petition which was adopted by the Region thirty
Speaker 1: one director, and that'smuth subject of the hearings this week.
Speaker 1: In short, the National Labor Relations Board is claiming that
Speaker 1: the student athletes are employees. By calling them student athletes,
Speaker 1: the school is misclassifying their status and they should be
Speaker 1: entitled therefore to all the rights and benefits of the
Speaker 1: National Labor Relations Act, including the right to unionize, the
Speaker 1: right to file unfair labor practice charges, and the right
Speaker 1: to seek and use the economic weapons of the National
Speaker 1: Labor Relations Act, including the right to strike.
Speaker 2: And what is the response of u USC. What's USC's case.
Speaker 1: First, the students are students and primarily and not employees.
Speaker 1: They go to school, they get an education, they're giving
Speaker 1: grant and aids to get an education. Secondly, that USC
Speaker 1: should not be classified as an employer. Within the meeting
Speaker 1: of the Act.
Speaker 2: The first witnesses were former USC football players, and they
Speaker 2: described how the program officials basically controlled their lives almost
Speaker 2: all year, not just at school.
Speaker 1: That's not a surprise if we look back to the
Speaker 1: Northwestern case, that is the same proof the NLRB adduced,
Speaker 1: and it shows that students who are athletes, particularly in
Speaker 1: the football program, in the basketball program, the revenue generating sports,
Speaker 1: are required to spend a lot of time upwards of
Speaker 1: forty to sixty hours per week throughout the school year
Speaker 1: on revenue generating activities that is, their sport for the university,
Speaker 1: without reaping any of the benefits of creating those revenues.
Speaker 2: You know, to an outside observer, it sounds like the
Speaker 2: student athletes have the best end of this argument. Does
Speaker 2: it appear that way to you?
Speaker 1: I think there is a very distinct argument which the
Speaker 1: NLRB is putting to the side, which is what are
Speaker 1: the educational benefits that these students are getting. If you
Speaker 1: are a student athlete, you're not going to the school
Speaker 1: simply because of its football or basketball program. Hopefully you're
Speaker 1: going there because of the opportunity to get an education too.
Speaker 2: This is a hearing before an administrative law judge. What
Speaker 2: happens next? What's the sequence?
Speaker 1: So once the administrative law judge completes the hearings, which
Speaker 1: is going to take several months given the schedule, the
Speaker 1: administrative law judge issues of decision. The decision can then
Speaker 1: be appealed to the full National Labor Relations Board in Washington, DC,
Speaker 1: which then issues its own decision, and that may be appealed,
Speaker 1: I believe, to a federal circuit Court of Appeals.
Speaker 2: NCAA President Charlie Baker. Earlier this month, there was a
Speaker 2: proposal to directly compensate student athletes. He floated that concept
Speaker 2: in a letter. Would that solve this problem? And is
Speaker 2: that going anywhere?
Speaker 1: Let me take that in reverse order. Okay, I do
Speaker 1: not know if it is going anywhere. It's an intriguing
Speaker 1: proposal because there's an additional part to that, which is
Speaker 1: that Governor Baker has floated the idea of creating a
Speaker 1: new power division, maybe out of the Power five, but
Speaker 1: a new power division which would compensate athletes. It does
Speaker 1: not provide for compensation of all athletes. In all sports
Speaker 1: at all schools.
Speaker 2: And tell us what it would look like if the
Speaker 2: National Labor Relations Board had jurisdiction over student athletes as employees.
Speaker 1: I think what we need to look at here are
Speaker 1: that a system in which the National Labor Relations Board
Speaker 1: would assume jurisdiction over students as employees would have the
Speaker 1: ability to create differential impacts on students and schools in
Speaker 1: three ways. One, different roles for schools in the same
Speaker 1: conference because you have schools in the same conference which
Speaker 1: are private and some which are public. USC, for example,
Speaker 1: is joining the Big Ten. The Big Ten will now
Speaker 1: have two private schools, USC and Northwestern, and the rest
Speaker 1: of all public schools which are not subject to the
Speaker 1: National Labor Relations Board jurisdiction. Second is differential impact on frankly,
Speaker 1: all economically challenged students who look to college athletics as
Speaker 1: means to get a higher education by possibly having the
Speaker 1: schools get rid of anton aid programs for them because
Speaker 1: they can't afford it under a new regime. And third
Speaker 1: is a potential differential impact on women who may find
Speaker 1: their sports downsized as a result of schools not being
Speaker 1: able to afford a full college program thanks Marty.
Speaker 2: That's Martiny Dell, coacher of the sports law practice at
Speaker 2: Gulston and Stores. And that's it for this edition of
Speaker 2: The Bloomberg Law Show. Remember you can always get the
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