SEC Response in Alabama Litigation (Analysis)

Admins--There was a thread that touched upon this. This one goes into the actual details of the response brief.


TL; DR; NL. The SEC brief is weak on many points, but the basketball recruiting and Wade's comments did not help us.

The SEC responded to Liz's motion to dismiss. Here are some highlights--

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This case addresses a broader dispute: Defendants’ complete lack of institutional control over LSU’s athletic programs, their ongoing defiance of the Conference’s Professionalism Rules, and the very real threat—reiterated in Defendants’ briefing—that Defendants will interfere with any effort to terminate LSU’s membership in the Conference.

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LSU’s eleventh-hour decision not to include two former professional athletes on its football roster does not moot the SEC’s claims. Nor does it matter that Defendants did not block or interfere with the September 10th meeting.

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LSU continues to flout those Rules and principles.

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The lawyers then turn to basketball --

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LSU has openly recruited former NBA player RJ Luis Jr., has allowed him to practice with LSU’s men’s basketball team, and has refused to publicly and definitively state that he will not be included on LSU’s basketball roster, which is not due for several more weeks.

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They then mention international basketball players whose "eligibility remains in question," then quote Wade--

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“We’re going to be unapologetic about it. This is who we are. This is what we’re doing. This is the path that we charted. We’re going to go down it, and that's fine.”

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The SEC concedes that they could just throw LSU out, which, as mentioned in a prior post, is far and away Murrill's best argument. But then it says:

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What Defendants do notsay in their brief—much less through any sworn affidavit or declaration—is that they will refrain from interfering with the SEC’s exercise of its undisputed right to terminate LSU’s membership in the Conference.

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Therefore--

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Defendants are trying to have it both ways.

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The threat, they say, is that --

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Defendants have already shown they will use
Louisiana’s courts to stop the Conference from governing itself.

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This seems pretty weak, because none of the defendants were a party to the Louisiana litigation, but the SEC tries to connect the dots--

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Working hand in glove with the Pyburn plaintiffs, they helped obtain state-court orders that bar the Conference from enforcing the Professionalism Rules.

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They point out that Liz filed an amicus brief (a brief that a non-party can file to help educate the court), and that she sat at counsels' table for the players.

This is a very weird argument to me for someone claiming to be protecting their First Amendment rights. In essence, they are saying that their rights are threatened because the Louisiana AG exercised hers. I think you can blow them out of the water on this in a reply brief. If that is their best argument, they should lose, in my view.

Then they move to mootness. For the NL, a matter is "moot" when there is no longer any reason for a court to decide it. In this case, the good guys (showing my bias here) argued that this whole issue was moot when LSU declined to roster the players.

Here, I think the SEC might fare a little better, in part because of basketball and Wade.

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Defendants’ argument that they mooted this case by deciding, at last, not to roster the players is like saying that someone caught with his hand in the cookie jar has cured the problem by pulling it out. What’s more, Defendants still have their hands in the jar. LSU’s men’s basketball program continues to defy the Professionalism Rules and its head coach promises to be “unapologetic about it.” Scarborough, supra note 1.

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The counter is obvious. Come see the court if that happens, because it has not yet. But it did not help the cause that they were able to inject basketball and that quote into it.

As for the argument that LSU might interfere in efforts to throw it out of the conference, I find the argument paper-thin. They say that LSU affirmed the threat of intereference by saying in briefs that it should not be thrown out. That is almost dumb. Saying that you should't be terminated is a far cry from saying you are going to try to interfere (somehow illegally) with the vote to do so. Again, I think they get kicked pretty hard in the reply brief on this one.

The SEC then says that the matter is live (not moot) because the SEC did not call the vote.

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A rule that treats such restraint as a concession of mootness would punish parties for seeking resolution and reward those who exploit it.

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Just as an aside, I think the following excerpt is a terrible sentence on the same point and should have been rewritten. I would not have filed a brief that used this weird (to me) sentence structure. But that's just me. There is jsut too much going on there. And its a topic sentence, which makes it worse.

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Accepting Defendants’ mootness argument would also have the perverse effect of penalizing the Conference for showing restraint in its dealings with LSU.

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There are some related ripeness arguments. As I have always understood it, mootness means it is no longer a dispute, and ripeness means it is not yet a dispute. The ripeness arguments in this case are largely a repeat of mootness.

The SEC then moves into the sovereign immunity arguments. I hated this issue when I studied Ex Parte Young under the stern tutelage of Professor Pugh. I am going to leave it at that. I do not see any real advantage to either side in these arguments, although it may be appellate fodder.

There is a long section on personal jurisdiction. For the NL, this is the power of a court to force a particular individual to appear before it. For the lawyers, think back to your hazy first year memories of International Shoe under Bockrath. The only notable part here is that they accuse Liz of committing an "intentional tort." That is a little strong. And just for the record, they did not mention the billboards.

There is then the argument that the SEC cannot pursue a civil rights claim here (1983) because it is, effectively, the State. The civil rights statute in question protects against state action, not private action. There is a long argument here about whether public universities are the "State." FWIW, I looked at this under the 11th amendment in another case and concluded that they are. But that was a few years ago.

This is their take--

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Under that view, if other states banned LSU from advertising to students or speaking with recruits in those states, or if the federal government told LSU which classes to teach or which professors to hire, the First Amendment would have nothing to say about it. Defendants’ refusal to take the bitter with the sweet on these points is another waiver.

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That has surface appeal. I am going to have to think about that one.

They also point out that Vanderbilt, a private university, is a member of the SEC. No surprise there.

There is more to these First Amendment arguments, but they are rather abstruse.




My overall take. The SEC scores a couple of points, but 12 out of 15 rounds go to LSU (to use a boxing analogy).

That's just my take. Also, the SEC brief is way too long at forty-one pages.

Have to do actual work now. Excuse any typos. I will try to clean it up later.