President Obama Behind in the Count in the Sports Arena

Whatever success he may have in regard to health care reform, economic recovery, or the war in Afghanistan, President Barack Obama has already demonstrated that his ability to influence the world of sport is quite limited.  His unsuccessful efforts to convince the International Olympic Committee to award the 2016 Summer Olympics to his adopted hometown of Chicago have been well documented in recent days.

Furthermore, his call for college football to institute a playoff system to determine the champion of what most people still call Division 1A football has fared no better.  Although such a change has admittedly not been a top priority of Obama’s administration, he did quite openly throw his support with those opposing the current BCS championship system (based on polls and giving priority to the teams that make up the six so-called BCS conferences)  both during the campaign and after he was elected.

Support for Obama’s position seemed to congeal at the end of the 2008-09 college season when the BCS formula left undefeated University of Utah out of the BCS championship game and undefeated Boise State and Texas Christian University (which would finish the season ranked #7 in the country in the AP poll) out of BCS bowl games altogether.

On January 9, 2009, eleven days before Obama’s inauguration and the day after one-loss Florida defeated one-loss Oklahoma for the BCS championship, Rep. Joe Barton of Texas, the ranking Republican on the House Energy and Commerce Committee, introduced a bill that would prohibit as a “deceptive practice” the promotion of a postseason NCAA Division I football game as a national championship game unless it was the final game of a traditional playoff.   Barton represented a district that abutted Fort Worth, the home of TCU, and his bill was co-sponsored by fellow Texas Republican Michael T. McCaul and the peripatetic former Black Panther Bobby Rush (D-IL), whose constituents include Barack and Michelle Obama.

Six days later, Democrat Neil Abercrombie of Obama’s native Hawaii proposed a somewhat less dramatic approach when he introduced a nonbinding resolution calling for a playoff system and for a Justice Department investigation into the legality of the BCS system under the federal antitrust laws.  Abercrombie’s resolution was endorsed by Lynn Westmoreland (R-GA), Jim Matheson (D-UT), and Michael K. Simpson (R-ID), all of whom represented districts lacking teams in BCS conferences.  The following day, a third bill was introduced, this time by Republican Gary Miller of California.  Rather than label the BCS system a fraud (as Barton’s bill would do) Miller’s proposal denied all federal funds to schools in the Division I Football Bowl Subdivision unless the championship game resulted from a playoff system.

However, the movement to force the NCAA to adopt a playoff system quickly ran out of steam once the new president was inaugurated.  Although  Barton and Miller endorsed each other’s bills and Abercrombie’s resolution, and Abercrombie signed on as a co-sponsor of Miller’s bill (but not Barton’s), only two other congressmen, Ken Calvert (R-CA) and  John Carter (R-TX), subsequently endorsed any of the above legislation.  Barton and Miller’s bills both died in committee in January while Abercrombie’s resolution was apparently tabled in March.  Hearings conducted in May by the House Energy and Commerce Committee’s Commerce, Trade and Consumer Protection Subcommittee attracted almost no attention.

The idea that Congress might intervene on behalf of a playoff was briefly revived in July when Sen. Orrin Hatch of Utah, the ranking Republican on the Senate Judiciary Committee’s Subcommittee on Antitrust, Competition Policy and Consumer Rights held hearings on the legality of the BCS system.  Although Hatch’s hearings primarily focused on the possibility of the Justice Department prosecuting the NCAA under the federal antitrust laws, they appeared also to revive the idea of direct congressional intervention.  During the Hatch hearings, Congressman Barton, who had earlier denounced the BCS as a form of Communism, predicted that if the NCAA did not adopt a playoff system by the start of the next season, Congress would intervene and impose one itself.

Well, the NCAA did nothing, and Congress followed suit.   The president, presumably, was busy with other matters.

Given the reluctance of Congress to interfere with the sports industry, even after 50+ years of investigatory hearings, in matters of franchise relocation, expansion, pay television, and performance-enhancing drugs, it would have been shocking had it been moved to act in regard to what is clearly a matter of style rather than substance.

But now that he has two strikes, the president should be careful before he takes another swing at the sports industry.

[Thanks to John Foust for bringing several misspellings in the original version of this post to our attention.  Eds.]

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Gross Goes Ledbetter

Capitoldome It now appears that the Gross ADEA decision might be going the way of the Ledbetter pay discrimination Title VII decision.  From CQ Politics:

A trio of top Democrats from both chambers plan legislation aimed at rolling back a Supreme Court ruling they say makes it harder for plaintiffs to win age discrimination suits.

Tom Harkin , D-Iowa, chairman of the Senate Health, Education, Labor and Pensions Committee, and Patrick J. Leahy , D-Vt., chairman of the Senate Judiciary Committee, said Tuesday they will introduce a bill to restore a less-demanding burden of proof for plaintiffs in age discrimination suits. Rep. George Miller , D-Calif., chairman of the House Education and Labor Committee, said he intends to introduce a similar measure.

The proposed legislation is a response to the Supreme Court’s June 2009 ruling in Gross v. FBL Financial Services that plaintiffs claiming disparate treatment under the Age Discrimination in Employment Act must show that age was the determining factor in the alleged discrimination, rather than just one of several factors . . . .

Under the proposed legislation, the burden would be on the employer to show it complied with the law once a plaintiff shows age discrimination was a “motivating factor” behind an employment decision.

What I particularly like about the Congressional response is that in announcing the legislation, Sen. Leahy quite rightly referred to the Supreme Court’s decision as an activist decision by conservative justices.

Of courses when I say that “Gross Goes Ledbetter,” I refer to the fact that President Obama signed into law the Lilly Ledbetter Fair Pay Act making it easier for workers to challenge wage discrimination, responding to the restrictive 2007 Supreme Court ruling in Ledbetter.

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Legacies of Lincoln

legacies-of-lincolnThe Legacies of Lincoln Conference, a joint undertaking of the Law School and the Department of History, was an impressive event last week. It began on Thursday evening, with Allen Guelzo, Gettysburg College’s renowned Lincoln historian, delivering the History Department’s annual Klement Lecture. There then followed on Friday three panels, variously addressing “Lincoln and Politics,” “Lincoln and the Constitution,” and “Lincoln as Lawyer,” and respectively led by Heather Cox Richardson of the University of Massachusetts-Amherst, Michael Les Benedict of The Ohio State University, and Mark E. Steiner of the South Texas College of Law. The other panelists were James Marten and Alison Clark Efford of Marquette’s History Department (politics panel), Stephen Kantrowitz of the University of Wisconsin-Madison and Kate Masur of Northwestern University (Constitution panel), and two of our part-time faculty (for the Lincoln-as-lawyer panel): Joseph S. Ranney, III, of Dewitt Ross & Stevens and Thomas L. Shriner, Jr., or Foley & Lardner. Audio of the three panels is available on the Law School’s webcast page.  A number of the participants will permit the Law School to publish papers reflecting their remarks, and I expect that, as the different papers are ready over the course of the time to come, Dan Blinka or I will use this blog to share them with interested readers. A special thanks to Jim Marten and to Dan Blinka for their roles in putting this conference together.

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