The person who replaces the late Ruth Bader Ginsburg as associate justice on the U.S. Supreme Court will play a crucial role in shaping laws that affect the sports industry.
Consider retired NFL players: Some of those players, who are found to have pre-existing conditions, could find it more expensive to obtain health insurance if the Supreme Court strikes down the Affordable Care Act (better known as Obamacare). Or take college athletes. Some seek opportunities for monetary compensation, employee recognition and unionization. They could see the Supreme Court champion or thwart their ambitions.
The replacement for Justice Ginsburg, who passed away last Friday at 87, could come swiftly. President Donald Trump plans to announce his nominee for the vacancy on Saturday. While there is political debate as to whether a nominee should be confirmed before the winner of the 2020 Presidential election is decided, Senate Majority Leader Mitch McConnell intends to bring the President’s pick to a confirmation vote this fall. About 70 days are ordinarily needed for a Supreme Court nominee to be considered by the Senate, but no minimum duration is required by law. The election is 41 days away.
This timeline is relevant with respect to the latest legal challenge to Obamacare. On Nov. 10, the Supreme Court is scheduled to hear oral arguments in California v. Texas. This complicated case involves two groups of states, along with the federal government and individual persons, litigating certain aspects of Obamacare. Last December, the U.S. Court of Appeals for the Fifth Circuit held that Obamacare’s individual mandate—which requires most Americans to have health insurance or pay a penalty (sometimes described as a tax) to the I.R.S.—represents an unconstitutional interference by the federal government in interstate commerce.
Because of the range and interconnectedness of issues presented in California v. Texas, the Supreme Court could rule in one of several ways. For example, the Court could eliminate protections for those with pre-existing conditions or decree that the entire ACA is unconstitutional. A ruling will likely not be issued until 2021.
Ginsburg’s passing is a potential gamechanger in how California v. Texas will be decided. In National Federation of Independent Business v. Sebelius—to date, the most significant challenge to Obamacare—the Court narrowly upheld President Barack Obama’s signature law by a vote of 5-4. Justice Ginsburg joined Chief Justice John Roberts, Justice Stephen Breyer, Justice Sonia Sotomayor and Justice Elena Kagan. If the eight current justices split 4 to 4 on California v. Texas, the Fifth Circuit’s ruling against certain features of Obamacare would stand. Whether the President and both houses of Congress would then pass another health care law is unknown (particularly since it’s unclear who will be President next year or which party will control each house).
While Supreme Court cases can seem abstract, they often have real world consequences—including for athletes and their families. In 2017, NFLPA executive director DeMaurice Smith bluntly warned that “every” player leaves the NFL with a pre-existing condition. Athletes in other contact sports face a similar predicament. Some retired athletes have access to collectively bargained health care policies for a period of years after they retire, but whether they played long enough to vest into that benefit (in the NFL, full vesting normally requires three years of service) and the duration of it vary. As retired players seek to buy health care, protections against denial of coverage on the basis of pre-existing conditions could prove crucial.
Justice Ginsburg’s replacement is also poised to have a major say on important legal issues in college sports. In May, the U.S. Court of Appeals for the Ninth Circuit upheld a ruling in favor of former West Virginia running back Shawne Alston and former Cal basketball player Justine Hartman. The athletes argued that the NCAA and its 11 major conferences violated antitrust law by capping the value of athletic scholarships.
While the Ninth Circuit’s ruling is decidedly narrow in scope, it forbids the NCAA from limiting the value of educational benefits for computers and other “tangible items” related to the pursuit of student-athletes’ academic studies. It also blocks the NCAA from restricting scholarships for student-athletes after their eligibility expires. These and other changes will require modifications to NCAA rules and create implementation challenges for compliance officers.
The Alston ruling is significant because it follows Ed O’Bannon’s defeat of the NCAA on antitrust grounds. Like the O’Bannon ruling, the Alston ruling suggests that the NCAA’s system of amateurism—which, broadly defined, refers to NCAA rules that deny commercial opportunities for college athletes in order to distinguish them from pro athletes—is increasingly vulnerable to legal challenge.
If the Supreme Court reviews and upholds the Alston ruling, the Court could open the door for other challenges to amateurism. Through such challenges, the economics of college sports could change—perhaps dramatically.
The next justice might also weigh in on the topic of name, image and likeness. If a federal NIL statute is not enacted, individual states’ laws will govern whether and how college athletes can sign endorsement deals and hire agents. The NCAA, which intends to offer NIL rules by early next year, has repeatedly signaled that it intends to challenge those state laws on grounds they unduly interfere with interstate commerce.
Meanwhile, efforts by college athletes to be recognized as university employees (and then potentially unionize) could lead to legal challenges that reach the Supreme Court. While the National Labor Relations Board declined in 2015 to exercise jurisdiction over an employment petition brought by Northwestern University football players, the issue is hardly resolved. Another attempt could be made by college athletes from a private university, which is governed by the federal National Labor Relations Act, or by college athletes from a public university, which is governed by state labor laws.
No matter which person becomes Justice Ginsburg’s successor, she or he will have the power and opportunity to alter the sports industry.
(This story has been corrected with the spelling of Justice Ginsburg’s name in the headline.)