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Friday, September 28, 2007
Banks v. NCAA Cert Pool Memo: Seventh Circuit "Dead Wrong"

Thanks to Northwestern Law Professor Lee Epstein's marvelous digital database of Cert Pool Memos from the Blackmun papers (covering the years 1986-1993), we can now explore a bit of what the Supreme Court was thinking when it denied cert in some famous sports law cases. (HT to Orin Kerr).

One case that appears in many sports law casebooks is Banks v. NCAA, 977 F.2d 1081 (7th Cir.), cert. denied, 508 U.S. 908 (1992), in which Notre Dame fullback Braxston Banks challenged the NCAA's "no agent" and "no draft" eligibility rules as a violation of Section 1 of the Sherman Antitrust Act. The case contained the majority's assertion that it would be "absurd" to characterize college athletics as a labor "market". More memorable, certainly, is Judge Flaum's dissent, which the majority dubbed "cynical". Judge Flaum characterized the player-school relationship as a labor market, and suggested that the NCAA
continues to purvey, even in this case, an outmoded image of intercollegiate sports that no longer jibes with reality. The times have changed. College football is a terrific American institution that generates abundant nonpecuniary benefits for players and fans, but it is also a vast commercial venture that yields substantial profits for colleges.
The Supreme Court denied cert in the case. Now, you can take a look at the memo written by a clerk of the Court analyzing whether or not the Court should take the case. The clerk's recommendation comes at the end of the case. The clerk describes the majority's opinion as "rather muddled." The majority "seems to have erred." However, the petitioner conceded the issue was "splitless."

The clerk notes that the "case would be well briefed."

At the bottom of the memo, Justice Blackmun has written (by hand) "I think CA7 got this one dead wrong." Neat!

Can anyone think of any other interesting sports cases as to which the Court denied cert during that period?


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