Other Law Commons^™

Transcription Of 2023 Texas A&M Law Review Symposium: "More Than Sports: What Comes After Nil?", Jeffrey Kessler

Texas A&M Law Review

This transcription presents Jeffrey Kessler's keynote speech at the 2023 Texas A&M Law Review Symposium on NCAA v. Alston and the future ahead.

False Start On Nil: Public And Private Law Should Treat College Athletes Like Any Other Student, Jodi Balsam

Texas A&M Law Review

For most of its regulatory existence, the National Collegiate Athletic Association (“NCAA”) has preached the importance of integrating intercollegiate athletics into the campus culture and educational mission, insisting that athletes be an integral part of the student body. A core element of this creed was the amateurism principle—college athletes must not be paid or professionalized. To preserve and enforce the amateurism principle, the NCAA and its divisions promulgated a vast and complex regulatory scheme that paradoxically resulted in segregating, rather than integrating, athletes into campus life. While nonathlete students enjoy increasing autonomy to pursue expressive and economic activity, athletes are …

New Amateurism, Michael Mccann

Texas A&M Law Review

This Article proposes a new model for the legal and economic relationship between college athletes and their schools. The National Collegiate Athletic Association and its member conferences and schools are besieged with legal challenges over rules that restrain the capacity of athletes to earn compensation for their athletic labor and the commercial value of their identities. The legal challenges are extensive and scrutinize membership rules under labor, employment, and antitrust laws. The days of “amateurism” and the “student-athlete” enjoying judicial and administrative deference are over. For college sports to maintain a character distinct from professional leagues, university athletic programs that …

Off The Guardrails: Opportunities And Caveats For Name Image Likeness And The [Student] Athlete Influencer, Maureen Weston

Texas A&M Law Review

The landscape of college athletics is undergoing a seismic shift with the advent of Name, Image, and Likeness (“NIL”) opportunities for student-athletes. In Off the Guardrails: Opportunities and Caveats for Name Image Likeness and the [Student] Athlete Influencer, Professor Maureen A. Weston examines the evolving terrain, tracing the journey from the National Collegiate Athletic Association’s (“NCAA’s”) rigid amateurism policies to the current era of NIL legislation and its implications. This Article navigates the complex intersection of athlete empowerment, entrepreneurial ventures, and regulatory challenges, shedding light on the multifaceted opportunities and risks for athletes in the burgeoning NIL market.

Delving …

College Athlete Unionization, Roberto Corrada

Texas A&M Law Review

The U.S. Supreme Court’s landmark 2021 decision in NCAA v. Alston has opened the door to serious consideration of the potential for college athlete unionization and collective bargaining. The ruling, highlighted by Justice Kavanaugh’s concurring opinion, suggests collective bargaining as a potential solution to the National Collegiate Athletic Association’s (“NCAA’s”) antitrust vulnerabilities. This Article delves into the initial legal and strategic questions surrounding the prospect of unionization, focusing particularly on NCAA Division I football and basketball, due to their significant revenue generation making them prime candidates for unionization efforts.

The National Labor Relations Board (“NLRB” or “Board”) is positioned to …

The Nil Paradox: How Unfettered Nil Rights Will Shrink Student-Athlete Opportunities, Gary Way

Texas A&M Law Review

In 2019, California passed the Fair Pay to Play Act which granted student-athletes (“SAs”) attending institutions within the state the right to monetize the use of their name, image, and likeness (“NIL”). That enactment ushered in the most transformative change in college sports since the National Collegiate Athletic Association’s (“NCAA”) decision over 50 years ago to allow freshman eligibility to play varsity football. The California law, coupled with the subsequent Supreme Court decision in NCAA v. Alston, which held that the NCAA’s limitations on education-related SA benefits constituted an unlawful restraint of trade under the Sherman Act, unleashed a …

An Antitrust Analysis Of The Ncaa Transfer Policy, Michael Carrier, Marc Edelman

Texas A&M Law Review

The National Collegiate Athletic Association (“NCAA”) is no stranger to antitrust law. As a trade association composed of nearly all U.S. colleges offering competitive sports, its rules are regularly challenged under antitrust law. In the past 40 years, the NCAA has faced challenges to rules limiting televised game broadcasts, curtailing assistant coaches’ pay, and restraining players’ compensation, among other issues. Restraints on college athlete transfers also could subject the Association to reasonable legal scrutiny.

Restrictions on the ability to transfer can harm athletes by preventing their immediate eligibility even though transferring could allow them to be closer to family, enroll …

Good Lawyers, Good Sports?: The Professional Identity Of Sports Lawyers Representing Not-For-Profit Entities, Bruce Green

Texas A&M Law Review

ABA accreditation standards require law schools to develop students’ professional identity, including by encouraging “an intentional exploration of” the legal profession’s “values [and] guiding principles.” This Essay invites legal academia as well as practitioners to explore issues of legal ethics, professionalism, and, especially, professional identity in the context of a new area of legal practice: sports lawyers’ representation of “NIL collectives,” which are not-forprofit entities that college boosters establish to enable college athletes to benefit financially from their name, image and likeness (“NIL”). The work of sports lawyers advising NIL collectives offers an interesting case study for considering how professional …

Murphy V. Ncaa: The Constitutionality Of State-Authorized Sports Gambling, Shane Landers

Texas A&M Law Review

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Thus, “Congress may not simply ‘commandee[r] the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program.’” In Murphy v. NCAA, the United States Supreme Court held that a federal law that prevents States from legalizing sports gambling “violates the anticommandeering rule.” The Supreme Court’s decision in Murphy reemphasizes a fundamental principle of dual sovereignty—Congress is prohibited from “issu[ing] direct orders to the governments of …

Building A Better Bar Exam, Marsha Griggs

Texas A&M Law Review

In the wake of declining bar passage numbers and limited placement options for law grads, a new bar exam has emerged: the UBE. Drawn to an allusive promise of portability, thirty-six U.S. jurisdictions have adopted the UBE. I predict that in a few years’ time, the UBE will be administered in all states and U.S. territories. The UBE has snowballed from an idea into the primary gateway for entry into the practice of law. But the UBE is not a panacea that will solve the bar passage problems that U.S. law schools face. Whether or not to adopt a uniform …

A (Re)Adoption Story: What Is Driving Adoptive Parents To Rehome Their Children And What Can Texas Do About It, Emma Martin

Texas A&M Law Review

Ava was adopted from Africa when she was four years old. She became the baby sister to two older brothers and the daughter to two loving, experienced parents. A year or two after Ava moved to America, she and her “forever family” attended a Colorado summer camp. All was seemingly well until the camp staff and the other families at camp started to notice something strange about the way Ava’s parents treated her compared to her brothers. After an activity, the parents greeted the brothers with an excited “did you have fun?” or “what did you learn?,” while the parents …

Things Invisible To See: State Action & Private Property, Joseph William Singer, Isaac Saidel-Goley

Texas A&M Law Review

This Article revisits the state action doctrine, a judicial invention that shields “private” or “non-governmental” discrimination from constitutional scrutiny. Traditionally, this doctrine has applied to discrimination even in places of public accommodation, like restaurants, hotels, and grocery stores. Born of overt racial discrimination, the doctrine has inflicted substantial injustice throughout its inglorious history, and courts have continuously struggled in vain to coherently apply the doctrine. Yet, the United States Supreme Court has not fully insulated “private” or “horizontal” relations among persons from constitutional scrutiny. The cases in which it has applied constitutional norms to non-governmental actors should be celebrated rather …

China's Anti-Corruption Crackdown And The Foreign Corrupt Practices Act, Daniel C.K. Chow

Texas A&M Law Review

China’s highly publicized crackdown on corruption may affect the type and number of cases in China that arise under the Foreign Corrupt Practices Act (“FCPA”), but it should not be assumed that the crackdown will necessarily lead to fewer FCPA prosecutions. Although there is some overlap of the goals of China’s corruption crackdown and the goals of the FCPA, China’s crackdown also serves important goals of the ruling Communist Party. The main goal of the current crackdown is to reinforce the Party’s power by targeting enemies and rivals of the current leadership. The crackdown is not aimed at prohibiting bribes …

Entering The Trump Ice Age: Contextualizing The New Immigration Enforcement Regime, Bill Ong Hing

Texas A&M Law Review

During the early stages of the Trump ICE age, America seemed to be witnessing and experiencing an unparalleled era of immigration enforcement. But is it unparalleled? Did we not label Barack Obama the “deporter-inchief?” Was it not George W. Bush who used the authority of the Patriot Act to round up nonimmigrants from Muslim and Arab countries, and did his ICE not commonly engage in armed raids at factories and other worksites? Are there not strong parallels that can be drawn between Trump enforcement plans and actions and those of other eras? What about the fear and hysteria that seems …

Standing In The Way Of Our Goals: How The Best Interest Of The Child (Whatever That Means) Is Never Reached In Texas Due To Lack Of Standing For Third-Party Parents, Jessica Nation Holtman

Texas A&M Law Review

Currently in Texas, standing options for third-party nonparents seeking to file suits affecting the parent-child relationship (“SAPCRs”) are extremely limited. And, even though the standing options are codified, the evidence necessary to meet the threshold elements may be drastically different depending on the case’s location. These third parties, who have previously exercised parental responsibilities, must make showings to the court that most divorced parents could not make; and this is just for a chance to bring a claim in court. While this seems unfair, and Texas should absolutely resolve the split among its appellate courts, there is one extremely important …

Ethereum And The Sec: Why Most Distributed Autonomous Organizations Are Subject To The Registration Requirements Of The Securities Act Of 1933 And A Proposal For New Regulation, Tiffany L. Minks

Texas A&M Law Review

In a world full of new technology, the risk of fraud is constantly increasing. In the securities industry, this risk existed long before the use of technology. Congress enacted the Securities Act of 1933 to combat the risk of fraud and misrepresentation in the sale of securities. By requiring full disclosure, investors have the opportunity to make informed decisions prior to investing. However, Distributed Autonomous Organizations (“DAOs”), through the use of blockchains and smart-contracts, engage in the sale of securities without fully disclosing the risks or complying with the registration requirements of the Securities Act of 1933. Compliance with the …

Active Promotion Of Useful Arts: Considering The Government's Role In Patent Enforcement, Brian Harris

Texas A&M Law Review

The U.S. Constitution grants Congress the power “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” To this end, Congress created the copyright system “[t]o promote the Progress of Science” and the patent system for promoting the progress of useful arts. The American patent system can be though of as a vehicle for converting an intangible idea into a form of property. Since the beginning of the American patent system, social benefit has been a key component of the decision to grant …

The Revised Ncaa Division I Governance Structure After Three Years: A Scorecard, Brian D. Shannon

Texas A&M Law Review

As part of the August 2014 Division I Governance re-design, the NCAA Division I Board of Directors, acting on the recommendation of a Board-appointed Steering Committee, granted certain autonomous decision-making powers to the Autonomy 5 conferences and their sixty-five member institutions. In effect, this recommendation by the Board’s Steering Committee enabled the Autonomy 5 conferences to begin to adopt policy legislation independently from the rest of Division I. Accordingly, the Steering Committee developed and recommended a structure “designed to allow permissive use of resources or to otherwise enhance the well-being of student-athletes by any [Autonomy 5 institutional] member, [or] to …

Fulfilling U.S. Commitment To Refugee Resettlement: Protecting Refugees, Preserving National Security, & Building The U.S. Economy Through Refugee Admissions, Harvard Immigration And Refugee Clinical Program

Texas A&M Law Review

At a time when the U.S. refugee admissions program is under serious threat and the world’s displaced population is at its highest, this Report sets forth extensive recommendations regarding the United States’ role in protecting vulnerable refugees and compliance with its commitments under domestic and international law that together safeguard people fleeing persecution and fearing return to torture. The Report also identifies key national security reasons for supporting and enhancing the refugee program in keeping with U.S. foreign policy priorities. Additionally, the Report provides an in-depth discussion of the robust, multistep security-assessment mechanisms already in place for screening refugees; offers …

The Foreign Corrupt Practices Act Turns 40: "Reflections On Walmart's Enhanced Ethics & Compliance Program", Jay T. Jorgensen

Texas A&M Law Review

As Walmart’s business has been changing, the company has also evolved and changed in our corporate governance. In 2012, the company started a significant effort to enhance our ethics and compliance programs. Prior to that time the company maintained separate compliance efforts in different countries. For example, Walmart’s business in the United States had a well-developed compliance program. The company had separate compliance-related activities and personnel in our businesses in Canada, China, Mexico, and elsewhere. All of these compliance programs operated independently of each other, reporting to their local business leaders.

Lichtenberger And The Three Bears: Getting The Private Search Exception And Modern Digital Storage "Just Right", Samuel Crecelius

Texas A&M Law Review

Finding a happy medium is hard. Often, it is a challenge to find a workable balance between two unworkable extremes. Known as the “Goldilocks Principle,” this phenomenon has been observed in fields as diverse as developmental psychology and astrobiology. As Goldilocks found in the Three Bears’ house, “just right” may not come on the first attempt. We may have to explore the extremes of the spectrum—“too hot” and “too cold”—before we can settle on “just right. Goldilocks also discovered that this process is all the more difficult in a new environment—like the Three Bears’ house. Goldilocks persevered, however, until she …

Principled Negotiation: The Final Answer To The South China Sea Dispute, Hoa Nguyen

Texas A&M Law Review

Principled negotiation suggests that in any conflict there are interests that motivate a party’s claimed position. Identifying and focusing on these interests instead of the position itself is the best way to solve the underlying conflict, whether it concerns a family quarrel, a business contract, or an international settlement among nations. On the surface of the South China Sea dispute, China, Vietnam, the Philippines, Malaysia, Brunei, and Taiwan all make conflicting claims over various features in the South China Sea, particularly the Spratly and Paracel Islands. However, in reality, each nation has particular interests in mind when asserting its claiming …

Where We're Going, We'll Need Roads! Building The Bridge To The Future: Public-Private Partnerships For Future Border Infrastructure Development, Jessica R. Lesnau

Texas A&M Law Review

In a world where global economies are increasingly interdependent, the United States, and its North American counterparts, Canada and Mexico, are booming sources of international trade. Now, more than ever, global competitiveness necessitates developments in U.S. infrastructure, especially at major border crossings where congestion and poor infrastructure create bottlenecks interfering with the free movement of goods. Questions pertaining to international border crossings circle the debate at the most crucial international border crossing in North America: the Ambassador Bridge, which spans the Detroit River between Detroit, Michigan, and Windsor, Ontario. A legal battle rages over the proposed construction of a new …

Evaluating The Cayman Islands Bill Of Rights, Freedoms And Responsibilities: More Evolution Than Revolution, Vaughan Carter

Texas A&M Law Review

Evaluating the Cayman Islands Bill of Rights, Freedoms and Responsibilities: More Evolution than Revolution

Could The Pay Ratio Disclosure Backfire? Examining The Effects Of The Sec's Pay Ratio Disclosure Rule, Jillian Loh

Texas A&M Law Review

At the signing of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (“Dodd-Frank Act”), President Barack Obama asserted that, “We all win when investors around the world have confidence in our markets. We all win when shareholders have more power and more information. . . . And we all win when folks are rewarded based on how well they perform, not how well they evade accountability.” After the financial crisis in 2008, the Obama Administration recognized the need to reconstruct the existing American financial regulatory system to ensure that a financial meltdown would never happen again. It …

Recognizing Challenges And Opportunities In The Quest To End Hunger, Jennifer Williams Zwagerman

Texas A&M Law Review

As an attorney and professor that does not focus on intellectual property law, I was a bit apprehensive about providing a keynote address for a Symposium focusing on “Agriculture, Intellectual Property, and Feeding the World in the 21st Century.” As I thought about this topic, knowing that there were other speakers who would focus more on the IP issues and technical aspects of various topics, I kept coming back to the importance of technology as we worktowards the goal of feeding the world, and the many ways in which innovation plays a role in meeting that goal. It also brought …