I’m a trial lawyer. Although I’m forced to occasionally read a Supreme Court case to prep for a matter (lawyers use “matter” to make us look smart), I’m no expert on The Sherman Antitrust Act. But I can read. Apparently some “legal experts” can’t.
There are lots of sports legal experts on twitter that have “legal take” batting averages of around .200. Yesterday they all whiffed. Their twitter takes and a whole bunch of others focused on everything that was either legally irrelevant or dicta. Dicta is plural for dictum and that’s Latin for “so what?”. Lawyers still use Latin to terms like dicta to look smart.
Yesterday, sports legal experts were full of dicta.
Here’s my legal take on NCAA v Alston: The NCAA is run by dummies. That’s it. That’s the take. Ok, lawyers like to talk so here’s an actual opinion. NCAA is full of dummies. The NCAA could have left the 9th Circuit decision stand and not appeal, but instead it appealed, and in a 9-0 decision, the NCAA was rebuked again. But the decision, written by Justice Gorsuch is a narrow one. Gorsuch spent the first 10 pages on the history of the NCAA, how much NCAA and coaches are paid, and then wrote:
“With these matters taken as a given, we express no views on them”
The NCAA appealed, apparently expecting it’s silly and restrictive rules to be returned to the silly and restrictive state. NCAA also wanted the review to subjected to a “quick” review rather than “rule of reason” review. Seriously, that’s what the NCAA wanted. It didn’t want the court to look at its rules restricting student athletes; the NCAA wanted a drive-by review. Kind of a “trust us” argument at 80 MPH. To quote Gorsuch:
“None of this helps the NCAA”
The opinion allows for universities to confer benefits to student athletes beyond an athletic scholarship if those benefits are related to education. The NCAA fears that that means athletes will be given Lamborghinis. The court said the NCAA is still free to inhibit “in-kind” benefits not related to educational benefits – and that includes luxury cars for athletes. Sorry athletes, no luxury cars for you.
Back to twitter’s sports legal experts. Twitter lawyers quoted language from Justice Kavanaugh’s concurrence that ripped into the NCAA. They treated Kavanaugh’s “NCAA sucks” words like it carried legal precedent. They don’t . If the concurrence wasn’t legally irrelevant it would have been the end of the game for the NCAA. But it’s not. Kavanaugh doesn’t like the NCAA. Neither do I, but what he wrote has no force or effect this case. It is certainly a warning (like my cartoon) that the NCAA is about to be crushed. My cartoon and Kavanaugh’s concurrence are warnings, nothing more.
Twitter legal experts quoting Kavanaugh like his “NCAA sucks” concurrence is now the law, are all full of dicta.