Today’s guest columnist is Chris Corr of Troy University.
When the Board of Regents at the University of Oklahoma and University of Georgia initially filed an antitrust suit against the NCAA in 1981, United States District Judge Lee Roy West recused himself immediately. The lawsuit—which served as a watershed moment in the history of NCAA litigation—concerned the association’s monopoly over television rights and would become the first case challenging NCAA authority argued before the Supreme Court of the United States.
As a native Oklahoman and graduate of the University of Oklahoma, West held no reservations about his inability to separate his loyalty to the school and his obligation to issue an impartial ruling. In an interview from April 2011, West detailed that his allegiance to OU began as a student there and grew due to Oklahoma’s success in football; his personal friendship with three-time national championship-winning Sooners head football coach Barry Switzer; and his close friendship with All-American and Oklahoma football team captain Norman McNabb.
Like most collegians, Lee Roy West had immense pride for his alma mater. Unlike most collegians, Judge West could alter the legal scales with his opinions and rulings.
West’s 1981 recusal underscores new findings by researchers at Troy University and the University of South Carolina’s College Sport Research Institute (CSRI), who examined the demographic backgrounds and collegiate connections of judges who have issued rulings in cases involving the NCAA.
Between 1973 and 2020, a total of 174 federal judges issued 234 rulings on the NCAA. Of those decisions, judges sided with college sports’ governing body 63% of the time.
Within this group of cases, the research found that judges’ demographic and educational backgrounds seemed to play a significant role. For instance, judges born in states home to a Southeastern Conference athletics program were 43% more likely to rule in favor of the NCAA than judges born outside the SEC footprint. Also of note: Judges who attended an NCAA Division I institution were 15% more likely to rule in favor of the NCAA, while those who attended a Power Five institution were 19% more likely to rule in favor of the NCAA.
Though analyzing the context and merit of each case requires nuance, judges born in SEC states appear to have, historically, exhibited greater deference to the NCAA and its practices.
Such acknowledgment can be found in the number of cases challenging the NCAA filed in the U.S. District Court for the Northern District of California, where Judge Claudia Wilken presides. Judge Wilken, a native Minnesotan who attended Stanford and UC Berkeley Law School, memorably stated that the acronym SEC made her think of the Securities and Exchange Commission, instead of the athletic conference. The audacity.
In 2021, SCOTUS unanimously ruled against the NCAA and its practices. Justice Brett Kavanaugh, a D.C.-born Yale grad, stated that “the NCAA is not above the law,” while adding, “nowhere else in America can businesses get away with agreeing not to pay their workers a fair market rate on the theory that their product is defined by not paying their workers a fair market rate.”
Such fiery commentary exemplifies the questionable legality of many NCAA practices. Yet some judges may be unable to objectively render decisions concerning the NCAA due to the influential nature that collegiate athletics has on identity in the United States. Unlike Lee Roy West in 1981, most judges probably don’t view their fandom for “State U” as a legitimate reason to recuse themselves from a matter concerning the NCAA.
Recent history tells us this premise of conflict of interest may not be that farfetched. In 2009, an Alabama state court judge granted a request for delay in an upcoming January civil suit. Why? So attorneys could attend the BCS national championship featuring Alabama and Texas. In 2010, another Alabama judge delayed trial due to the BCS national championship featuring Auburn and Oregon. Again in 2012, a third Alabama judge granted a request for a delayed trial so attorneys could attend the BCS national championship game featuring Alabama and Notre Dame. Not to be outdone, a Georgia state court judge granted a delay in 2017 due to the CFP title game between Georgia and Alabama.
How about a 2018 study by economists at Louisiana State University that found judges issued harsher punishments after their favorite college football team suffered a loss or if the defendant is affiliated with a rival university? And don’t forget Chief Justice John Roberts, who in 2008, upon serving as a guest judge for a competition between University of Florida law students, made sure to stick around through the weekend to catch Tim Tebow and the Gators take on the Miami Hurricanes. I was there and met him in the President’s Suite. He stayed the whole game.
It’s not a crime to be a college football fan, but the potential consequences of such fandom should be noted. As the Troy/CSRI research shows, judges with deep ties to college football–or the geographic areas where college football resembles religion more than fandom–may have been the biggest opponent to legal challenges against the NCAA over the past four decades.
Litigators, take note.
Corr, a former college football staffer, is an assistant professor in the School of Hospitality, Sport, & Tourism Management at Troy University. More information on CSRI and their annual Adjusted Graduation Gap Reports can be found at www.csri.org.