It’s not over until…

It’s not over until…

Contributed by George Rozzell.

In our practice, we assist clients with complex legal issues which sometimes require an appeal to a higher court. These appeals are a critical aspect of our services to clients. For practical purposes, the Courts of Appeals (both of Arkansas and of the U.S. Courts) form the basis for the development of the common law. It is by those decisions that the law is established or evolves. The recent Supreme Court decision in National Collegiate Athletic Association v. Alston , 594 U. S. ____ (2021), caused us to stop and think – not about the issue of the case (restriction of collegiate athlete compensation) but about the importance of pursuing appeals and advocating vigorously for our clients’ positions even in the face of potential loss on the issue.

In Alston, the Supreme Court refrained from ruling on an issue that had been central to the student athletes’ claims at the lower court. It chose not to rule on this issue because the plaintiffs did not pursue an appeal of the adverse decision against them. It was the NCAA that chose to appeal the adverse ruling it had suffered. “The student-athletes do not renew their across-the-board challenge to the NCAA’s compensation restrictions. Accordingly, we do not pass on the rules that remain in place or the district court’s judgment upholding them. Our review is confined to those restrictions now enjoined.” Id. at 14. Although, as is clearly implied by the opinion of the Court, and almost explicitly stated by Justice Kavanaugh’s firm concurrence, the Court might well have nullified all restraint on student-athlete compensation rather than just the limitation on educational compensation under the NCAA’s rules.

In his concurrence, Justice Kavanaugh foreshadows the prospect of such a future holding, which surely proved bittersweet for Plaintiffs for having abandoned that issue on appeal. Justice Kavanaugh states in his opinion that “there are serious questions whether the NCAA’s remaining compensation rules can pass muster under ordinary rule of reason scrutiny. Under the rule of reason, the NCAA must supply a legally valid pro-competitive justification for its remaining compensation rules. As I see it, however, the NCAA may lack such a justification.” Id. (Kavanaugh, J., concurring).

Instead of basking in the glory of having successfully defeated the NCAA’s model wholly restricting athlete compensation, the Plaintiffs would now find articles like this from Luke Decock of the Raleigh News & Observer: Supreme Court decision opens the door for new challenges to NCAA’s ‘amateur model’. June 21, 2021. “New” challenges, while inevitable, are still required.

While the Plaintiffs may have ultimately prevailed, it is certainly reasonable to see why the Plaintiffs did not appeal the prior adverse decision to the Supreme Court. They had prevailed in part at the lower level and, by not appealing, preserved the position of strength before the Supreme Court that an appellee (the non-appealing party) enjoys. They also surely evaluated the likelihood of success on the merits of such an appeal, and decided, for whatever reason, it wasn’t worth the risk. In these high stakes cases, we don’t blame them one bit.

However, the Alston decision – and what it did not decide – remind us that deciding when to appeal a case or even an adverse decision within a case is cumbersome and fraught with second guessing. And that’s okay. The law will continuously evolve. Just remember, if you have an issue that is ripe for appeal – whether we have assisted you to that point or not – our lawyers stand ready to help with that process. While second guessing is inevitable, it is our passion to make sure that our clients receive thorough and thoughtful legal advice and that the decisions our clients make will be well reasoned and considered.

Our Arkansas Attorneys are happy to help you make the tough decision about whether an appeal is a viable option – and can stand with you until the final out is called.

Leave a Reply