U.S. Supreme Court

A key bench player

Whoever fills the opening on the Supreme Court could have a profound impact on landmark issues facing professional and collegiate sports.

By GREG AUMAN
Published August 17, 2005

Drug testing for athletes? Gender equity compliance on college campuses? Teenagers not allowed to enter into a pro sports league's draft? All sports-related issues that have come before the Supreme Court, and could be back on the docket before long.

The changing face of the Court could impact sports, and legal experts wonder how the nomination of John G. Roberts Jr. could change the relationship between the judicial branch and the sanctioning bodies of professional and collegiate athletics.

Sports and the courts have always had ties, some as direct as Byron "Whizzer" White, the star college and NFL running back who spent 31 years as a justice before retiring in 1993. Roberts' athletic resume isn't nearly as impressive - he last played football as co-captain of his high school team in Indiana - but he brings more experience with athletics than most nominees.

And whether Roberts joins the Court or not, some experts believe the retirement of Justice Sandra Day O'Connor could lessen the power and authority of Title IX in mandating gender equity in athletic programs.

"The court is really at a tipping point," said Stefanie Lindquist, an associate professor of political science and law at Vanderbilt. "O'Connor liked to see real gender equity, and it was one area in which she was particularly progressive. Replacing her obviously will have an impact on the court. Title IX is potentially up for grabs."

In an NCAA News story in June, Lindquist detailed how O'Connor was the swing vote in the two most recent Court rulings involving Title IX, both 5-4 decisions. The first, in 1999, allowed for retaliation lawsuits for Title IX violations, and a case in March extended whistleblower protections to those who report such violations. Such suits, Lindquist said, are a key "enforcement mechanism" in ensuring gender-equity standards are upheld.

The two cases gave some teeth to the battle for gender equity, though other recent cases brought before the Court argued the current interpretation of Title IX actually discriminates against male athletes, defeating its original purpose.

Roberts was a self-described "slow-footed" halfback and linebacker in high school who also wrestled and served on a student-athlete council. Before being nominated as a circuit court judge two years ago, Roberts brought athletics before the Supreme Court, representing the NCAA on a Title IX case in 1999. In NCAA vs. Smith, he successfully argued that the NCAA could not be sued for Title IX violations because it does not directly receive federal funding, but rather indirectly through its member institutions.

Any change in the Court's stance on gender equity could be countered by Congress revisiting the statute if the legal interpretation is deemed to be too narrow.

Just as women's rights in athletics have seen advancement in the judicial system, minorities still finding disparately low numbers in the coaching and administrative ranks may someday have their day in court, said Richard Lapchick, who runs the Institute for Diversity and Ethics in Sport in Orlando.

"No doubt, women have realized increased opportunities through court cases," Lapchick said. "I've been urging communities of color in the world of sport to challenge the lack of opportunities they've had over a long period of time. If that goes into the courts, it has the potential to rise up quickly."

Gender equity is only one sports-related issue that could join the thousands of cases each year brought to the Court, from golfer Casey Martin's right to use a cart because of a disability to a free-speech ruling involving Nike two years ago.

The justices last year declined to hear an appellate case from Ohio State running back Maurice Clarett against the NFL, questioning the legality of the league's requirement that players be three years removed from high school to be eligible for its draft process.

"It would have to be a sea change from the current court to interest the court on that," said Paul Haagen, a professor of law at Duke University and co-director of the school's Center for Sports Law and Policy. "They've already refused to hear that, so it's pretty well settled."

The draft rules of pro sports leagues may seem like an odd jurisdiction for the nation's highest court, but a new lineup could make the Court less likely to meddle in sporting issues such as baseball's steroid policy or the NBA's recent decision to raise its minimum age requirement.

"A more conservative judge might make the court less likely to want to have judicial regulation of athletics," said Matt Mitten, a law professor and director of the National Sports Law Institute at Marquette Law School. "I think you would see the court being more deferential to the governing bodies of sports."

With baseball players testifying before Congress, government has delved into how leagues handle drug testing, and recent Court rulings begin to address this at an earlier level. A 2002 decision - a 5-4 ruling at that - allowed public middle and high schools to require drug testing for students who participate in extracurricular activities such as sports, saying that doing so did not violate their privacy.

How Roberts would swing a court on most issues is still a guessing game. Because he has only been a Circuit Court judge for two years, he lacks a wide history of legal opinion, making it premature to speculate extensively on how his appointment could shift the Court on any issue.

"It's way too early to make any assessments on this particular nominee," Haagen said. "He has represented the NCAA in the past, so I'd suspect he's likely to be more attuned to their problems and interests. His history is that of being a cautious, careful person, so I don't see any reason to think there's going to be a big shift."

[Last modified August 17, 2005, 01:10:12]