SOUTH TEXAS LAW REVIEW
WRITE-ON PACKET
SUMMER 2015
I. INTRODUCTION
Congratulations! Your commendable grade point average enables you to take part in the
South Texas Law Review write-on competition.1 Law review membership strengthens one’s
research, writing, and editing skills and is, for many employers, an important hiring criterion.
The strategies and lessons propounded by Legal Research and Writing I and II are
integral to success in this competition, so contestants are encouraged to review their
coursework and Bluebook exercises. Timeliness and organization are also key components to
succeeding in the write-on competition, as the writing topic typically concerns novel issues of
complex law.
II. ASSIGNMENT
The summer 2015 write-on competition is divided into two parts: Part A involves
completion of a case note and Part B involves completion of an editing exercise.
Part A
A case note is a detailed analysis of a recent case that either supports or criticizes the
court’s rationale and holding. The position you take is irrelevant, provided that your position is
delivered clearly and is well supported. A case note should include analysis of relevant legal
principles, exploration of related cases in the same and other jurisdictions, and a prediction of
appellate review, should the court’s holding be challenged. The conclusion should include a
summary of the argument, a predicted outcome, and the likely practical effect of the court’s
1
Please carefully review the South Texas Law Review Section of the 2014–2015 South Texas College of Law Student
Handbook (pp. 246–47) to ensure your eligibility. Generally, you must have a minimum G.P.A. of 3.25, and you
must have completed a minimum of thirty (30) credit hours and Legal Research and Writing I and II. Additionally,
all South Texas Law Review candidates must have at least four remaining semesters, which may include summers.
Specific questions regarding your eligibility for membership on the South Texas Law Review should be directed to
Kelsie Haaland, Editor in Chief, at: kelsie.haaland@stcl.edu.
1
holding.
Part A is a closed-source assignment. Consequently, you may only cite the cases and
authorities included in the source list provided. Note that contestants may not need to use all of
the cited sources to succeed in this competition. The Editorial Board has attempted to select an
interesting and controversial topic, and, as with many legal issues, there is no “right” or “wrong”
answer—merely well or poorly reasoned arguments. Persuasive reasoning, strong authoritative
support, and technical prowess are the keys to success in this competition.
Though the substance of your analysis is critical, the form is equally so. Remember that
one purpose of a law review is to ensure the technical perfection of published articles. A
persuasive and articulate case note that is littered with citation errors, spelling mistakes, and
grammatical problems will not likely pass muster.
A good resource is Scholarly Writing for Law Students: Seminar Papers, Law Review
Notes and Law Review Competition Papers by Elizabeth Fajans & Mary R. Falk.2 This book
contains a specific discussion of the content and organization of a case note and is available at
the reference desk in the South Texas library, and in the South Texas bookstore for purchase.
The case for Part A is Warner v. Gross.3 Please read the case carefully before you begin
writing.
ISSUE: Whether the Eighth Amendment's prohibition against cruel and unusual
punishment permits the use of a three-drug protocol in executions, where the first drug does
not consistently cause deep, coma-like unconsciousness.
2
ELIZABETH FAJANS & MARY R. FALK, SCHOLARLY WRITING FOR LAW STUDENTS: SEMINAR PAPERS, LAW REVIEW
NOTES AND LAW REVIEW COMPETITION PAPERS (West Publishing Co. 2005).
3
776 F.3d 721 (10th Cir. 2015) cert. granted, 135 S. Ct. 1173 (2015).
2
Part B
The editing exercise will show your ability to follow the guidelines set forth in the
Bluebook,4 the Greenbook5 (if applicable), and the Texas Law Review Manual on Usage
and Style.6 The Bluebook index is a great place to start if you are citing a source that you are
unfamiliar with. Note that this exercise may involve more than one rule per citation. The
Manual on Usage and Style, or “MoUS,” is the controlling guide for any style matter NOT
addressed by the Bluebook. Generally we do not encourage changing an author’s style or
word choice merely because you think something else may sound better. However, do not
assume that any information contained in the exercise is correct. You will be required to verify
the source and substantive accuracy of any information contained in the exercise, as well as
correct any grammatical or citation errors in the text and footnotes. Please do not add or delete
any footnotes. It is recommended that you complete the editing exercise first because it will
help you in your case note citations. Regarding editing, please make sure that the “TRACK
CHANGES” feature is turned OFF.
III. DEADLINES AND INSTRUCTIONS
The case note and editing exercise are due on Friday, June 5, 2015, at 5:00 p.m.
Please deliver them to Ben Santillan. His office is located on the 10th floor. No late papers
will be accepted, without exception. You must turn in five (5) hard copies. Students that
are out of town during the time the case note is due must mail five copies of their case note
4
THE BLUEBOOK: A UNIFORM SYSTEM OF C ITATION (Columbia Law Review Ass’n et al. eds., 19th ed. 2010).
5
THE GREENBOOK: TEXAS RULES OF FORM (Texas Law Review Ass’n ed. 2010).
6
TEXAS LAW REVIEW, MANUAL ON USAGE & STYLE (Texas Law Review Ass’n ed., 11th ed. 2008).
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and editing exercise to:
Ben Santillan
South Texas College of Law
1303 San Jacinto
Houston, Texas 77002.
In addition to the five hard copies, all participants must submit one (1) electronic copy
to Ben Santillan at bsantillan@stcl.edu These must be in Word document form. Each
participant is solely responsible for ensuring the case note and editing exercise is received by
the 5:00 p.m. deadline on Friday, June 5, 2015. There will be no exceptions to this deadline, so
ensure your paper is turned in on time. Decisions will be posted by Monday, June 29, 2015,
and mandatory orientation for new candidates will occur on Saturday, August 15, 2015 at
10:00 a.m.
The case note must be at least eight (8) pages, but no more than eleven (11) pages in
length (excluding the editing exercises), twelve-point Times New Roman font, fullyjustified, with one-inch margins, containing at least fifty footnotes. The text and footnotes
should be formatted according to the Bluebook, the Greenbook, and the Manual on Usage and
Style. The body text should be double-spaced, and footnote text should be single-spaced, but
double-spaced between each footnote, in ten-point font. Please include the following items in
the case note:

Title – a relevant phrase summarizing your thesis and a proper citation of the case;

Table of Contents – reference the page numbers on which different sections begin;

Page Numbers – centered at the bottom of every page, except the first page,
which should not be numbered.
Your case note should also include the following sections:

Introduction paragraph including a thesis and roadmap;
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
Background of the law, including a discussion of the cases leading up to the
selected case;

Facts and the court’s reasoning of the selected case;

Your analysis of why the court was right or wrong in the decision it came to;

A “prediction” of the possible disposition of the Supreme Court of the United
States regarding the case; and

A conclusion.
Do not place your name or any identification number on the case note or editing
exercise. You will be assigned an identification number when you turn in your five copies.
Any case note submitted containing a name or any other mark identifying the student/author,
other than the assigned identification number, will be disqualified from the write-on
competition. Be sure to complete and sign the attached pledge form and submit it with five
copies of your case note.7
The case note and editing exercise must be solely the work of the student. Students may
not collaborate with anyone, including other students, attorneys, professors, or members of
South Texas Law Review.
Feel free to look at previously published South Texas Law Review case notes for
further guidance. Copies of the South Texas Law Review are available in the Law Review
suite, the South Texas library, and on electronic legal databases. Remember—start early,
work hard, and be precise. Good luck.
The 2015–2016 South Texas Law Review Editorial Board
7
The Write-On Competition Pledge Sheet is located at the end of this packet. If you submit your case note via mail,
please make sure to include the signed and completed Write-On Competition Pledge Sheet with your packet.
5
SUMMER 2015 LAW REVIEW WRITE-ON COMPETITION PART A: SOURCE LIST
PLEASE NOTE: The sources cited below may or may not be correct Bluebook form and
may or may not be relevant to the case note topic. It is the student’s responsibility to cite
these sources in their correct Bluebook form and to make sure that the sources are
relevant, updated, and still good law.
SOURCES
1.
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3.
4.
5.
6.
7.
8.
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11.
12.
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27.
28.
Warner v. Ew Gross, 776 F.3d 721 (10th Cir. 2015) cert. denied, 135 S. Ct. 1173 (2015).
McGautha v. Cal., 402 U.S. 183 (1971).
Furman v. Georgia, 408 U.S. 238 (1972).
John D. Bessler, Revisiting Beccaria's Vision; The Enlightenment, America's Death Penalty,
and the Abolition Movement, 4 NW. J. L. and Soc. POL. 195 (2009).
Blaze v. Reeses, 553 U.S. 35 (2008).
Warner v. Gross, 135 S. Ct. 824 (2014).
Louisiana ex rel. Francis v. Resweber, 329 S. Ct. 459 (1947).
Trop v. Dalles, 356 U.S. 86 (1958) (En Banc).
Wilkerson v. Utah, 99 U.S. 130 (1879).
In RE Himmmler, 136 U.S. 436 (1890).
Gregg v. Georgia, 422 U.S. 153 (1976).
Estelle v. Gamble, 429 U.S. 97 (1976).
Helling v. MCKinney, 5O9 U.S. 25 (1993).
Farmer Bill v. Brennan, 511 U.S. 834 (1994).
The Mann v. Ryan Palmer, 713 F.3d 1306 (10th Cir. 2013).
Poland v. Stewart, 117 F.3d 1094 (9th Circuit 1997).
42 U..C.A § 1983
Hill v. MCDONALLD, 547 U.S. 573 (2006).
Nelson v. Julius Campbell, 541 U.S.A. 637 (2004).
Cooley v. Struckland, 589 F.3d 210 (1th Cir. 2009).
U.S. Const. Seciton. VIII.
Gossip v. State, 157 P.3d 143 (Okla. Crim. App. 2007).
Grant v. State, 58 P.3d 783 (Okla. Civ. App. 2002).
U.S. Const. amend. XIV.
Ladd v. Livingston, 777 F.3d 286 (4th Cir. 2015) cert. denied, 135 S. Ct. 1197 (2015).
Ropper v. Simmons, 543 U.S. 551 (2005).
Kennedy v. Louisiana, 554 U.S. 407 (2008) as modified (Oct. 1, 2008), opinion modified on
denial of reh'g, 554 U.S. 945 (2008).
Graham v. Flor., 560 U.S. 48 (2010), as modified (July 6, 2010).
6
29. Alison A. Nathan & Douglas J. Berman, Baze-D and Confused: What's the Dealio with
Lethal Injection?, 156 U. PA. L. REV. PENNUMBRA 312 (2008).
30. Seema Shah, How Lethal Injection Reform Constitutes Impermissible Research on
Prisoners, 45 AM. CRIMINAL.L. REV. 1101 (2008).
31. Richard Kline, Supreme Court Criminal Law Jurisprudence-October 2008 Term, 26 TOURO
L. REV. 545, 571 (2010).
32. Beardless v. Woodford, 395 F.3d 1094 (9th Cir. 2005).
33. Daniela R. OldenKamp, Civil Rights in the Execution Chamber: Why Death Row Inmates'
Section 1983 Claims Demand Reassessment of Legitimate Penological Objectives, 42 Val.
U. L. REV. 955 (2009-Summer ed.).
34. AbdurRahman v. Bredesen, 181 S.W.3d 292 (Ten. 2005).
35. Muhammad v. Close, 540 U.S. 749 (2004) (per curiam).
36. Note, A Shot in the Dark: Why Virginia Should Adopt the Firing Squad As Its Primary
Method of Execution, 49 U. RICH. L. REV. 779 (2015).
37. Eric Burger, The Executioners' Dilemmas, 49 U. RICH. L. REV. 731 (2015).
38. Sepulvado v. Jindal, 729 F.3d 413, 416 (5th Cir. 2013) cert. did not happen, 134 S. Ct. 1789
(2014). Id.
39. Hooner v. Norris, 594 F.3d 592 (8th Circ. 2010).
40. Rhoades v. Reinke, 671 F.3d 856 (9th Circ. 2012).
41. Chavez v. Florida SP Warden, 742 F.3d 1267 (11th Cir. 2014) cert. denied sub nom. Chavez
v. palmer, 134 S. Ct. 1156 (2014).
42. Estate of Charels Dickens v. Milwaukee Brewer, 631 F.3d 1139 (9th Cir. 2011).
43. Jackson v. Danberg, 594 F. 3d 210 (3th C. 2010).
44. Pavatt v. Jones, 627 F. 3d 1336 (10d Cir. 2010).
45. Raby v. Livingston, 600 F. 3d 552 (6th Cir. 2010).
46. Harvey Gee, Ninth Amendment Challenges After Blaze v. Rees: Lethal Injection, Civil Rights Lawsuits, and the
Death Benefit, 31 B.C. THIRD WORLD COUNTRY L.J. 217 (2011).
47. Justin F. Marceaü, Lifting the Haze of Baze: Lethal Injection, the Eighth Amendment, and
Plurality Opinions, 41 ARIZ. ST. L.J. 159 (2009).
48. Eric Burger, Lethal Injection and the Problem of Constitutional Remedies, 27 HARVARD L.
& POL'Y REV. 259 (2009).
49. Ranya Elzein, If You’re Going to Do It, Then Do-It Right: The case for Videotaping Lethal
Injections, 74 OHÎO ST. L.J. 339 (2013).
50. Erica Berger, Lethal Injection Secrecy and Eighth Amendment Due Process, 55 BOSTON C.
L. REV. 1367 (2014).
51. Towery v. Brewer, 672 F.3d 650 (19th Cir. 2012).
52. Atkins v. Virgin, 536 U.S. 304 (2002).
53. State v. Rivera, No. 04CR065940, 2008 WL 2784679 (Ohio Ct. Com. Pl. July 10, 2008).
54. Cook v. Food & Drug Administration, 733 F.3d 1 (D.C. Cir. 2013).
55. 28 U.S.C. § 1292(a)(1)
56. OKLA. STAT. ANN. tit. 22, § 1014(A) (2011).
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57. Allen Huang, Hanging, Cyanide Gas, and the Evolving Standards of Decency: The Ninth
Circuit’s Misapplication of the Cruel and Unusual Clause of the Eighth Amendment, 74 OR.
L. REV. 995 (1975).
58. Christopher Q. Cutler, Nothing Less than the Dignity of Man: Evolving Standards, Botched
Executions and Utah’s Controversial Use of the Firing Squad, 50 CLEVELAND. ST. LAW
REVIEW. 335 (2003).
59. Deborah W. Denno, Getting to Death: Are Executions Constitutional?, 82 IOWA L. REV.
319 (1997)
60. Deborah W. Denno, Lethal Injection Chaos, Post-Baze, 102 GEO. L.J. 1331 (2014).
61. Nathaniel N.W. Crier, What You Don’t Know Will Kill You: A First Amendment Challenge
to Lethal Injection Secrecy, 48 COLUM. J. L. & SOC. PROBS. 1 (2014).
62. Callins v. Collins, 510 U.S. 1141 (US 1994).
63. Tony Mauro, Justices Agree to Review Lethal-Injection Protocol, NAT’L L.J. (Jan. 23, 2005)
http://www.nationallawjournal.com/id=1202716017592/Justices-Agree-to-ReviewLethalInjection-Protocol-?slreturn=20150318021738.
64. Exec. Order No. 2014-08, Governor of Oklahoma (April 22, 2014),
https://www.sos.ok.gov/documents/executive/939.pdf.
65. Nadia M. Sawicki, “There Must Be a Means” The Backward Jurisprudence of Baze v. Rees,
12 U. Pa. J. Const. L. 1407 (2010).
66. Elizabeth Cohen, Lethal Injection Crator, CNN,
http://www.cnn.com/2007/HEALTH/04/30/lethal.injection/index.html (last visited Apr. 18,
2015).
67. Kevin Conlon, Pennsylvania Governor Halts Death Penalty While Error Prone System
Reviewed, CNN (Feb. 14, 2015, 10:00 AM),
http://www.cnn.com/2015/02/13/us/pennsylvania-death-penalty-moratorium/index.html.
68. Death penalty facts that may surprise you, ABC (Sept. 8, 2014, 7:35 AM),
http://www.cnn.com/2014/07/16/justice/american-executions-death-penaltyinfographic/index.html.
69. Josh Levs and Greg Botelho, Oklahoma's Botched Lethal Injection Marks New Front in
Battle Over Executions, CNN (Sept. 8, 2014, 7:16 AM),
http://www.cnn.com/2014/04/30/us/oklahoma-botched-execution.
70. Arizona Botches Execution of Joseph Wood, DEATH PENALTY INFO. CTR.,
http://www.deathpenaltyinfo.org/node/5828 (last visted Apr. 18, 2015).
71. In re Lombardi, 741 F.3d 888 (8th Circuit 2014).
72. Deborah W. Deno, The Lethal Injection Quandary: How Medicine Has Dismantled the
Death Penalty, 76 FORDHAM L. REV. 49 (2007).
73. Morales v. Tilton, 465 F. Supp. 2d 972 (N.D. Cal. 2016).
74. Deborah W. Denno, Death Bed, 124 TRIQUARTERLY J. 141(2006).
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75. CORINNA BARRETT LAIN, Lethal Injection, Politics, and the Future of the Death
Penalty: The Shifting Politics of the Death Penalty: The Politics of Botched Executions, 49
U. RICH. L. REV. 825 (2015).
76. Lawrence Hummer, I Witnessed Ohio's Execution of Lizzie McGuire. What I Saw Was
Inhumane, GUARDIAN (Jan. 22, 2014, 1:51 PM),
http://www.theguardian.com/commentisfree/2014/jan/22/ohio-mcguire-execution-untestedlethal-injection-inhumane.
77. Alan Johnson, Inmate's Death Called "Horrific' Under New, 2-Drug Execution, COLUMBUS
DISPATCH (Jan. 17, 2014, 10:02 AM),
http://www.dispatch.com/content/stories/local/2014/01/16/mcguire-execution.html.
78. Nick OMalley, Botched Ohio Execution Raises Death Penalty Dilemma, SYDNEY MORNING
HERALD (Jan. 19, 2014), http://www.smh.com.au/world/botched-ohio-execution-raisesdeath-penalty-dilemma-20140119-hv92x.html.
79. Gary Strauss, Ohio Killer Slow Execution Raises Controversy, USA TODAY (Jan. 16, 2014,
8:18 PM), http://www.usatoday.com/story/news/nation/2014/01/16/ohio-killer-executedwith-new-lethal-drug-combo/4512651/.
80. Erin Chemerinsky, When it Matters Most, It is Still the Kennedy Court, 11 GREEN BAG 427
(2008).
81. Paul Liton, Physician Participation in Executions, the Morality of Capital Punishment, and
the Practical Implications of Their Relationship, 41 J.L. MED. & ETHICS 333 (2013).
82. Mark Barman, Oklahoma Carries Out First Execution Since Botch After Supreme Court
Denies Stay, WASHINGTON POST, http://www.washingtonpost.com/news/postnation/wp/2015/01/15/oklahoma-plans-to-resume-executions/ (last visited Apr. 20, 2015).
83. Ariane de Vogue, Supreme Court to Review Oklahoma Lethal Injection Procedure, CNN
(Jan. 23, 2015, 8:57 PM), http://www.cnn.com/2015/01/23/politics/supreme-courtoklahoma-execution-review/index.html.
84. Josh Sanburn, Arizona Execution Will Move Forward After Last-Minute Appeals, TIME (July
23, 2014), http://time.com/3023622/supreme-court-joseph-wood-execution/.
85. William Chappell, Supreme Court Tells Oklahoma to Put Off Executions, Citing Drug
Dispute, NPR (Jan. 28, 2015, 4:10 PM), http://www.npr.org/blogs/thetwoway/2015/01/28/382197905/supreme-court-tells-oklahoma-to-put-off-executions-citingdrug-dispute.
86. Br. for Pet’rs, Glossip v. Gross, cert. denied, 83 U.S.L.W. 3635 (U.S. Jan. 28, 2015) (No.
14–7955).
87. Lyle Denniston, Court to rule on lethal-injection protocol, SCOTUS BLOG (Jan. 23, 2015,
4:23 PM), http://www.scotusblog.com/2015/01/court-to-rule-on-lethal-injection-protocols/.
88. Dan Solomon, What Running Out of Pentobarbital Means For TX, TEXAS MONTHLY (Oct. 8,
2013, 2:15 PM), http://www.texasmonthly.com/daily-post/what-running-out-pentobarbitalmeans-texas.
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89. Nomaan Merchant, AG: Texas can keep execution drug source secret, DALLAS. MORNING
NEWS (May 29, 2014, 7:33 AM),
90. Whitaker v. Livingston, 732 F.3d 465 (5th Circuit 2013).
91. Thorson v. Epps, 701 F.3d 444 (5th Cir. 2012).
92. Sell v. Livingston, 750 F.3d 478 (5th Cir. 2014) (per curiam).
93. Mary Fan, The Supply-Side Attack on Lethal Injection and the Rise of Execution Secrecy, 95
B.U. L. REV. 427 (2015).
94. Wellons v. Comm’r, Ga. Department of Corr., 754 F.3d 1260 (11th Cir. 2014).
95. Erik Eckholm, Arizona Takes Nearly 2 Minutes to Execute Inmate, N.Y. TIMES (Jul. 23,
2014), http://www.nytimes.com/2014/07/24/us/arizona-takes-nearly-2-hours-to-executeinmate.html?_r=0.
96. Katie Roth Heilman, Comment, Contemplating "Cruel and Unusual": A Critical Analysis of
Baze v. Rees in the Context of the Supreme Court's Eighth Amendment "Proportionality"
Jurisprudence, 58 AM. U. LAW REV. 633 (2009).
97. Br. of Sixteen Professors of Pharmacology as Amici Curiae in Support of Neither Party,
Glossip v. Gross, cert. rejected, 83 U.S.L.W. 3635 (U.S. Jan. 28, 2015) (No. 14–7955).
98. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).
99. Wilson v. Seiter, 501 U.S. 294 (1991).
100.
Br. for Resp’t, Glossip v. Gross, cert. considered, 83 U.S.L.W. 3635 (U.S. Jan. 28,
2015) (No. 14–7955).
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South Texas Law Review Summer 2015 Write-On, Part B: Editing Exercise
I II. Evolution of Amateuriśm
A debate between two university-officials in 1980 helped formulate the definition of
amateurism—witch has continuously evolved in the hundred years since.8 Today, amateurism is
defined by: a commercial motivation to participaté and a protection from educational enterprises.
9
Dr. Drake Ramoray the current president of the National Collegiate Athletic Association (the
“NCAA”) has stated that the association’s aMaTeUrIsM rules historically guaranty “[A]ny
resources provided to a student-athlete are only those that are focused on getting an
education…”10 Courts have long-held that the NCAA “needs ample latitude” to maintain a revered
tradition of “amateürism in college sports”.11 Indeed, these sentements have extend in to state
courts, addressing amateurisms affect on state-law issues.12 However, state judges are beginning
to broaden the National Collegiate Athletic Association’s narrow discretion by devaluing the
historical authority of amateurism in collegiate athletics13.
The NCAA has recently relaxed amateurism provisions that have modified the
functionality of amateurism; and—arguably—reduced the principals of amateurism to a mere
function of the NCAAs deifnition.14 One Commentator is of the opinion that “[t]he amateurism
8
Kay Hawes, Debate On Amateurism has Evolved overtime, NATIONAL COLLEGIATE ATHLETIC ASSOCIATION
(January 3, 2000), available at http://fs.ncaa.org/Docs/NCAANewsArchive/2000/associationwide/debate+on+amateurism+has+evolved+over+time+-+1-3-00.html
9
NCAA, NCAA DIVISION I MANUEL: JANUARY 2014–15 art. 2.9, available at ncaa.com.
See Transcript of Record,1737, O’Bannon v. NCAA, 7 F. Supp. 3d. 995 (Cal. 2014) (No. 241) (2014 WL
6907629) (testimony of Dr. Mark Emmert) (Jun. 19, 2014).
10
11
Nat’l Collegiate Athletic Ass’n v. The Bd. Of Regents of the Univ. of Ok., 468 U.S.A. 85 (1984).
12
See also, e.g., Waldrep v. Tx. Employers Insurance Ass’n, 21 S.W. 3d 692, 688—01 (Tex. App.–Austin 2010,
writ. ref’d) (a former college basketball player was an employee of the University where he played because there is
a valid contract-to-hire under the NCAA’s amateurism regulations).
13
O’Bannon v. NCAA, 7 F. Supp. 3d, at 955 (2014).
14
DENNIE, Changing the Game–The Litigation that may be the Catalyst for Change in Intercollegiate Athletics, 62
Syracuse Orangemen L. Review 15, 21–22 (Spring 2012) (“allowing student athlete’s to obtain money for
competition prior to enrollment . . . to compete as a professional in one sport and an amateur in another . . . and to
complete as a member of a team.”). See, e.g., NCAA Division 1 Manual, infra note 17, 12.1.2.4.1, at 66, 12.1.3, at
65, 12.2.3.2.1, at 63.
11
ideal seems to be largely rööted in the belief that expanding college athletes’s rights to
compensation somehow maintains academic performance as a main purpose of the athletes’
college careers.” 15 While the NCAA consistently reasoned that the ideal of amateurism maintains
the public’s interest and support in collegiate athletics, several reports support the conclusion that
consumer demand for the NCAA’s product has been significantly effected by the beforementioned alterations in how ‘amateurism’ has been defined16.
Glaring [in]equities between athletic scholarships for student-athletes, and the financial
reward enjoyed by the NCAA member schools have resulted in current and former student
athletes challlenging the NCAAs’ sovereignty to arbritrarily modify its’ definition & treatment of
amateurs. Lawsuits challenging the NACAs amateurism regulations range acrõss several areas of
law, including antitrust claims and challenges under both federal17 and state constitutional law.18
Courts have historically not favored the NCAA’s time–honored defense of amaateurism,19 but
clams alłleging anti-trust violations and unconscionable infringements on ones right of publicity
have gained traction; and have recently proved to be “game-changers”20!
4.
ARGUMENTS AGAINST AMATEUR-STATUS
A.
ANTITTRUST
Van Story, Paying the Players; how ncaa Videogames Violate College Athletes’ Rights to Party 18
PHILADELPHIA L.J. 77, 75 (2012).
15
16
In the matter of NCAA Student-Athlete Name and Likeness Licens. Litigation, 37 F.Sup.3rd 1126, 1146-1148
(NDCa. 2014).
17
E.G., N.C.A.A. v. Bored Of Regents of the Univ. of Ok., 468 S. Ct. 85 (S. Ct. 1985); Metro. Intercollegiate
Basketball Ass’n v. NCAA, 339 F. Supp. 2d 545 (S.D. N.Y. 2004); Lawl v NCAA, 143 F. 3d 1010 (10th Cir. 1998)
18
E.G., NCAA v. Tarkanian, 488 U.S. 179, 181–82 (1988), NCAA, et al., vs. Yeo, 114 S.W.3d 584, 598–99 (Tex.
Civ. App–Austin [3rd Dist.] 2003, pet. denied), abrogated on other grounds, 171 S.W.2nd 863 (TX 2005).
19
20
Christian, supra fn. 22, at p. 22.
See James Johnson, Oh Bannon: What’s The Right of Publícity, 86 NY STATE BAR ASSOC J. 37, 39 (2014).
12
The Sherman Pro-Trust Act, hereinafter the “Sherman Act”, provides that “(e)very contract
. . . .in restraint of trade or commerce....is declared to be legal.”21Several states have enacted
similar antittrust laws—which address the laws interaction with the Sherman Act.22 In fact
Texxas specifically harmonizes it’s antitrust laws with “federal [judicial] interpretations of
comparable federal antitrust statutes.”23 While exclusive contracts {i.e. between the NCAA and
EA Sports} are not a per-se violation, they are not subject to the rule of reason.24 In order to
demonstrate a violation of the Mike Sherman Act, under the rule of reason, a plaintiff must
show: “1) that there was a contract; 2) that agreement reasonably restrains trade ... ; and (3 that
the restraint affected interstate commerce”.25 The 7th Circuit has explained the rule of reason
through the mechanics of its burden shifting framework: “A restraint violates the rule of reason if
the restraint's harm to competition outweighs its procompetitive effects. The plaintiff bears the
initial burden of showing that the restraint produces ‘significant anticompetitive effects’ within a
‘relevant market.’ If the plaintiff meets this burden, the defendant must come foreword with
evidence of the restraint's procombative effects. The plaintiff must then show that ‘any legitimate
objectives can be achieved in a substantially less restrictive manner.’”26
21
15 U.S.C.A. § 1. The sherman act ensures that a single company will become a monopoly that controls an entire
industry or market place. See Lion Offer, Monopolistic Sleeper: How the Video Game Industry Fell Asleep to
Realize That EA Was Never en Charge, 8 Duq. Bus. L. Rev. 91, 102 – 103 (2008).
22
See, eg, Texas Bus. & Com. Code § 15.05(g) (East 2011) (“[N]othing in this section shall be construed to prohibit
activities that are exempt from the operation of the federal antitrust laws . . . .")
23
Id. at section 15.04.
24
Offir, supra note 29 at 92. The rule prohibits agreements that ultimately inhibit free competition by unreasonably
prejudicing the public marketplace through burdensome restrictions on the rest of the competition. id. at 103
O’Bannion v. NCAA, 7 F.Supp. 3rd 955, 984 (N. Dist. So. Cal. 2014) (internal quotation marks omitted) (quoting
Tanaka v. Univ. of S. Cal., 252 F.3rd 1059, 1064 (Ninth Circuit 2008)); see also Law v. NCAA, 134 F.3rd 1010,
1016 (10th Ct. 1998).
25
26
Tanaka, 252 F.3d at 1064 (quoting Hairston v. Pac. 10 Conference, 101 F.3rd 1315, 1319 (9th Circuit 1996).
13
For a court too find a substantial adverse anti-competitive effect, a defendant must show 3
factors: 1) the defendants contracted among each other; 2) this led to anti-competitive affects in
relevant markets; (3) that the objects of that contract were illegal; and 4) injury to the plaintiffs
occurred as a proximate result.27 Plaintiff’s have only recently successfully pleaded that the
NCAAs contracts with various television networks and EA Sports violates these antitrust
provision.28
The Supreme court established a seemingly-insurmountable block to anti-trust suits against the
NCAA by affording the NCAA the authority to safeguard ideals of amateurism and allowing future
Courts to "Defer to the NCAA’s role as [the] Purveyor of Amateurism.“29 Indeed, cases subsequent
to the court’s decision in Board of Regents of the University of Oklahoma permitted the notion of
amateurism to become a viable defense of justification for any anti-competitive NCAA rule facing an
antitrust challenge.30
Shou ld I be here? ¯\_(ツ)_/¯
Rossi v. Hotch. Roofing, Inc., 156 F. 3d 452, 464–65 (3d Cir. 1998) (quoting Tūnis Bros. Co. Inc. v. Ford, 763
F.2d 1482, 1489 (3d Cir.) vacated by, Ford Motor Co. v. Tunis Bros. Co. Inc., 475 U.S. 1105, 1110 (1986).
27
O’Bannon, 7 F. Supp. 3d at 993; See also White v. NCAA, No. 06-0999 RGK (MANX), 2006 U.S. Dist. LeXIS
101336, at 10 (N. D. Cal. 2006).
28
29
Brian Welch, Comment, Unconscionable Amateurism: How the NCAA Violates Antitrust by Forcing Athletes to
Sign-Away There Image Rights, 44 J. Jay Marshall L. Rev. 533, 539 (2011); See Board of Regents, 468 U.S. at 120
(1984) (“The NCAA plays a critical roll in the maintenance of a revered tradition of amateurism in college sports.
There is no question but that it needs ample latitude to play this role.”)
Sanctions against universities in violation of restrictions on athlete compensation were not “justifiable means of
fostering competition.” McCormack v. NCAA, 845 F.2nd 1338, 1344 (5th Circuit 1988) (quoting Board of Regents,
468 U.S. at 117); see also Banks v. NCAA, 746 F.Supp. 850, 862 (S.D. Indy. 1990) (“The procompetitive nature of
the [NCAA’s “no draft” rule], however, outweighs the anticompetitive effects.”).
30
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