Judge John G. Roberts and Sports Law

Lost amid the endless media coverage of Judge John G. Roberts, Jr.'s' nomination to the U.S. Supreme Court is perhaps the most salient question: What are his views on sports law? Okay, maybe that's not number one on the list of questions that Senators Leahy, Kennedy, Schumer et. al are preparing to ask, but it's something that we are interested in.

So what do we know about Judge Roberts and his views on sports law? Let's start as early as possible in his life. We know that he was on the football, wrestling, and track teams at La Lumiere, a then all-boy Catholic High School in Indiana (it is now co-ed). Although he described himself as a "slow-footed halfback," Roberts was captain of his football team. According to one of his former teachers at La Lumiere, Roberts was among the team's players who were "real good, real competitive." One of his former classmates was similarly effusive of Roberts' athletic skill and personal traits. According to Carey Dowdle, "He was a quiet leader; he was a great wrestler. I played team sports and so I know that wrestling was an individual sports and he thrived in this sport where it was strictly his talent against somebody else's."

Therefore, it appears that Judge Roberts is--at the minimum--interested and skilled in sports. From that, we might cautiously extrapolate that he would be more willing to take a sports law case on writ than perhaps a Justice with less of an interest in sports. So far, then, Judge Roberts is looking good.

Let's turn to his professional career. We know that as a litigation partner at Hogan & Hartson, he successfully defended the National Collegiate Athletic Association ("NCAA") against a lawsuit by Renee Smith, a law school student who alleged that the NCAA, when it refused to allow her to participate in postgraduate intercollegiate volleyball, discriminated against her because of her sex. NCAA v. Smith was ultimately heard by the U.S. Supreme Court in 1999, and the Court had to decide whether the NCAA's receipt of dues from federally-funded colleges and universities made it subject to Title IX. In a unanimous decision, the Court agreed with Roberts that such funding should not make the NCAA subject to Title IX. Writing for the Court, Justice Ruth Bader Ginsburg held that "[e]ntities that receive federal assistance, whether directly or through an intermediary, are recipients within the meaning of Title IX; entities that only benefit economically from federal assistance are not."

Should we interpret Judge Roberts' defense of the NCAA as an indicator of his views on sports law? On one hand, his defense of the NCAA, along with numerous other industry/corporate clients, might suggest a "pro-management" viewpoint. And there is something to be said for "client capture," where an attorney gradually embraces a particular viewpoint on a legal issue as he represents additional clients with a similar agenda. On the other hand, Roberts had a job to do: represent the NCAA as vigorously as possible within the confines of the law. And client advocacy is the whole point of being an attorney, regardless of the attorney's own views. For that reason, we should always be leery of those who make philosophical deductions from another's client work.

So what do we really know about Judge Roberts and his views on sports law? Unfortunately, like with many of his positions, we're probably not going to know for sure until he's on the Court. On the other hand, the fact that he played multiple sports in high school and then later represented the NCAA as an attorney suggests that he has some expertise and interest in sports law. Moreover, the fact that he is unfailingly described as "fair" and "open-minded" indicates that he might more favorably view sports law as a legal topic than others on the Court. And from our perspective, those are good things.

See Update 9/14/2005: Evaluating Judge John Roberts' Analogy of Justices to Umpires (Sports Law Blog)

See Update 8/23/2005: Web Boosts Glare on Roberts (Washington Times discusses post above)

See Update 8/3/2005: John Roberts and Sports Law (Walter Olson of Point of Law discusses post above)

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