How Great is the Threat to Healthcare? The Severability Doctrine and the Challenge to Obamacare

*Josh Gehret

 On October 22, 2020, now Vice-President Kamala Harris tweeted she—alongside her Democratic colleagues—boycotted the Judiciary Committee’s vote to determine whether Amy Coney Barrett’s nomination should be heard by the Senate because the hearings “show[ed] how Republicans will stop at nothing to strip health care from millions of Americans with pre-existing conditions.”[1]  The issue of healthcare was a central part of the Democratic party’s criticisms of Justice Barrett during her confirmation hearings, due in part to President Trump’s stated goal of overturning Obamacare.[2]  The confirmation hearings for the next Supreme Court Justice were yet another arena for partisan jabs, intensified due to the impending election.[3]  But beneath all the ruckus, how serious or successful could a legal challenge be against Obamacare?[4]

Continue reading “How Great is the Threat to Healthcare? The Severability Doctrine and the Challenge to Obamacare”

ALEC’s Turnaround and Hope for Reducing Criminal Punishments in Maryland.

*Andrew J. Loewen

I. Everyone Agrees the Criminal Justice System Needs Reform.

The American Legislative Exchange Council (ALEC)  wants to reform the criminal justice system.[1]  On the heels of numerous high-profile police killings and resultant uprisings in the past eight years,[2] prison abolitionists are also demanding changes to the criminal justice system.[3]  In Maryland, their interests may be briefly aligned in the current Task Force to Study Crime Classifications and Penalties (Task Force), through its work with the People’s Commission to Decriminalize Maryland (People’s Commission).[4]  Amidst calls to defund the police, recognizing how massive investments in a bureaucracy of punishment detracts from our general welfare,[5] the examination of Maryland’s criminal code has brought together some unlikely allies.[6]

Continue reading “ALEC’s Turnaround and Hope for Reducing Criminal Punishments in Maryland.”

Her Crown and Glory: CROWN Act Takes Effect in Maryland

*John Chase

Among the new laws that took effect in Maryland on October 1, 2020, the CROWN Act intends to end employer discrimination arising from traditionally African-American hairstyles.[1]  California was the first state to pass similar legislation in 2019, and Maryland is the latest in joining five others that have followed suit.[2]  At the federal level, though passing in the House on September 21, 2020, CROWN Act-inspired legislation currently languishes in the Senate Committee on the Judiciary after first being introduced in December 2019 by Senator Cory Booker (D-NJ).[3]  Unwilling to wait for congressional action, and with local momentum building, proponents have elected to focus their efforts at the state level.[4]

Continue reading “Her Crown and Glory: CROWN Act Takes Effect in Maryland”

The Student Athlete Level Playing Field Act: Time for College Athletes to Cash in?

*Arriana Sajjad

I. Introduction

Newly proposed federal legislation could change the landscape of college sports as we know it.[1]  Starting as early as next year, athletes around the country may be able to start profiting from their name, image, and likeness (NIL).[2]  On September 24, 2020, Congressman Anthony Gonzales (R-Ohio) and Congressman Emanuel Cleaver, II (D-Missouri) introduced a bipartisan bill known as the Student Athlete Level Playing Field Act (the Act).[3]  If passed, the Act will give college athletes “the right to capitalize off their own name, image, and likeness” for the first time.[4]  Congressman Cleaver is a former collegiate athlete[5] who believes the Act will provide student athletes the right to “control their name, image and likeness . . . [like] every other American in the country . . . .”[6]  Congressman Gonzales, “a former Division I football player,”[7] consulted his collegiate athletic network to better understand the challenges presented prior to drafting the Act.[8]

II. Current NIL Laws

Currently, the NCAA prohibits college athletes from capitalizing on their NIL.[9]  However, several states are enacting laws that “make it illegal for colleges to enforce the NCAA’s current NIL rules.”[10]  Florida, for example, signed an NIL bill in June of 2020 that will go into effect July 1, 2021, which will make Florida the first state to allow college athletes to profit from their NIL.[11]  In response, the NCAA was forced to consider NIL legislation that would allow college athletes to receive compensation for such rights.[12]  The NCAA has turned to Congress to establish a “uniform NIL policy across the country to avoid potentially different rules in each state.”[13]

III. The Proposal

The Act would provide a number of new advantages to student athletes.[14]  Most notably, the Act provides that any athletic organization or institution of higher learning from prohibiting student-athletes’ participation in athletics because they have entered into an endorsement contract.[15]  Under the Act, college athletes would be able to hire agents to negotiate endorsement contracts on their behalf.[16]  Athletes and agents would have to notify the athletic director of a university of the agency agreement within seventy-two hours of its formation.[17]  As expected, however, athletes could not sign with any companies or brands related to tobacco, alcohol, marijuana, or gambling.[18]  Moreover, boosters[19] are prohibited from paying athletes directly to keep the recruiting process fair.[20]  To assist student athletes with “financial literacy,” universities would be required to develop a “course or program” for athletes to better understand their endorsement contracts.[21]  The Act also provides “congressional oversight through the establishment of a commission that would include student-athlete representation.”[22]  This commission would be named the Covered Athletic Organization Commission (the Commission), which would “act as an independent resolution body between a player and a school/NCAA.”[23]  The Commission would be comprised of athletic directors, coaches, student-athletes, NCAA administrators, as well as professionals in sports marketing, contracting and public relations.[24]

While the Act has some advantages, it also leaves a number of unanswered questions for schools, states, and athletes.[25]  The Act would grant schools the discretion to prohibit athletes from wearing endorsed clothing or gear to any athletic competition or university sponsored event.[26]  The Act does not provide, however, any clarity regarding athletes endorsing companies that compete directly with brands who sponsor their school, such as Nike or Under Armour.[27]  This could potentially lead to sponsors dropping the school and instead signing with an athlete who carries more social media presence.[28]  According to Congressman Gonzales, including such a provision “would be unfair to the athletes,” even though most schools would prefer some clear direction.[29]  Moreover, if passed, the Act would prevail over state NIL laws and “ensure that all member schools and conferences follow the same rules.”[30]  While this could create one federal standard and potentially streamline the NIL process, this would “pre-empt[] any existing” or proposed state law.[31]  Furthermore, the Federal Trade Commission (FTC) would enforce all aspects of the new law.[32]  However, it is unclear how the FTC would “draw a distinction between payments for an athlete’s value as an endorser versus his or her value as a recruit.”[33]  Congressman Gonzales hopes that the fair market value issue would resolve itself over time.[34]  If passed, it is clear colleges and universities may be blindly navigating this new law, especially with third-parties and the conflicting NCAA/state legislation.[35]

IV. The Question of “When” and “How?”

While some states are adopting similar legislation,[36] Congressman Gonzales and Congressman Cleaver hope the Act becomes a federal standard for college athletics.[37]  As the Act is co-sponsored by both Democratic and Republican representatives,[38] the Congressmen plan to bring the Student Athlete Level Playing Field Act to a vote in early 2021.[39]  It is “no longer a question of if college athletes will sign endorsement deals. It’s [now a question of] when and how . . . .”[40]

*Arriana Sajjad is a second-year day student at the University of Baltimore School of Law, where she is a Staff Editor for Law Review. Arriana is also on the National Moot Court Team, a teaching assistant for Introduction to Trial Advocacy, and serves as the Vice President for the Asian Pacific American Law Students Association. This past summer, Arriana was selected as the Association of Corporate Counsel North Capital Region’s Corporate Scholar and interned in-house for Lotame, a data solutions company. This past fall, Arriana interned for the Honorable Douglas R. M. Nazarian in the Maryland Court of Special Appeals and will intern for the Honorable Robert N. McDonald in the Maryland Court of Appeals this spring. Arriana is currently preparing to compete in the National Moot Court Finals competition to be hosted online in February 2021.

[1]           See Stephen M. Gavazzi, Congress Could Provide a Way for College Athletes to Get Paid, Forbes (Sept. 25, 2020, 11:11 AM), https://www.forbes.com/sites/stephengavazzi/2020/09/25/congress-could-provide-a-way-for-college-athletes-to-get-paid/#15c3fe417953.

[2]           See Barrett Sallee & Adam Silverstein, NCAA Takes Big Step Toward Allowing Name, Image and Likeness Compensation for Athletes, CBS Sports (Apr. 29, 2020, 9:52 AM), https://www.cbssports.com/college-football/news/ncaa-takes-big-step-toward-allowing-name-image-and-likeness-compensation-for-athletes/.

[3]           See Student Athlete Level Playing Field Act, H.R. 8382, 116th Cong. (2020).

[4]           Press Release, Rep. Emmanuel Cleaver, House of Reps. (Sept. 24, 2020), https://cleaver.house.gov/media-center/press-releases/reps-cleaver-gonzalez-unveil-bipartisan-bill-to-grant-name-image-and.

[5]           See id.

[6]           See id.

[7]           Dan Murphy, NCAA, Congress Have Labyrinth of Options, but NIL Clock Is Ticking, ESPN (Dec. 17, 2020), https://www.espn.com/college-sports/story/_/id/30534578/ncaa-congress-labyrinth-options-nil-clock-ticking.

[8]           Sabrina Eaton, Former Buckeyes Star Anthony Gonzalez Introduces Bill to Let College Athletes Make Endorsement Deals, Cleveland (Sept. 24, 2020), https://www.cleveland.com/open/2020/09/former-buckeyes-star-anthony-gonzalez-introduces-bill-to-let-college-athletes-make-endorsement-deals.html.

[9]           See Dan Murphy, Bipartisan Federal NIL Bill Introduced for College Sports, espn (Sept. 24, 2020), https://www.espn.com/college-sports/story/_/id/29961059/bipartisan-federal-nil-bill-introduced-college-sports.

[10]         Id.

[11]         See Adam Wells, Florida to Be 1st State with NIL Rights for NCAA Athletes to Profit Off Likeness, Bleacher Rep. (June 12, 2020), https://bleacherreport.com/articles/2895927-florida-to-be-1st-state-with-nil-rights-for-ncaa-athletes-to-profit-off-likeness.

[12]         See Sallee & Silverstein, supra note 2.

[13]         Wells, supra note 11.

[14]         See Gavazzi, supra note 1.

[15]         See Student Athlete Level Playing Field Act, H.R. 8382, 116th Cong. (2020).

[16]         See Press Release, Rep. Emanuel Cleaver,  supra note 4.

[17]         See H.R. 8382.

[18]         See id.

[19]         As defined by the NCAA, boosters “support teams and athletics departments through donations of time and financial resources.” Role of Boosters, ncaa, http://www.ncaa.org/enforcement/role-boosters (last visited Jan. 7, 2020).  A booster is defined as follows:

[A]nyone who has: [p]rovided a donation in order to obtain season tickets for any sport at the university; [p]articipated in or has been a member of an organization promoting the university’s athletics programs; [m]ade financial contributions to the athletic department or to a university booster organization; [a]rranged for or provided employment for enrolled student-athletes; [a]ssisted or has been requested by university staff to assist in the recruitment of prospective student-athletes; [a]ssisted in providing benefits to enrolled student athletes or their families; [b]een involved otherwise in promoting university athletics.

Id.

[20]         Murphy, supra note 9.

[21]         H.R. 8382.

[22]         Gavazzi, supra note 1.

[23]         Dennis Dodd, Bipartisan Name, Image, Likeness Bill Introduced to U.S. House Would Supersede State Laws for College Athletes, CBS Sports (Sept. 25, 2020, 10:33 AM), https://www.cbssports.com/college-football/news/bipartisan-name-image-likeness-bill-introduced-to-u-s-house-would-supersede-state-laws-for-college-athletes/.

[24]         See H.R. 8382.

[25]         See Michael McCann, Latest NIL Bill Overrides States but Leaves Tax and Labor Questions Behind, sportico (Sept. 29, 2020, 2:55 AM), https://www.sportico.com/law/analysis/2020/latest-nil-bill-overrides-states-1234613887/.

[26]         See H.R. 8382.

[27]         See Murphy, supra note 9.

[28]         See McCann, supra note 25.

[29]         Murphy, supra note 9.

[30]         McCann, supra note 25.

[31]         Gavazzi, supra note 1.

[32]         See Student Athlete Level Playing Field Act, H.R. 8382, 116th Cong. (2020).

[33]         Murphy, supra note 9.

[34]         See id.

[35]         See Martin Edel et al., The New Name, Image and Likeness Playing Field for Colleges and Universities – What You Need to Know, JD Supra (Oct. 15, 2020), https://www.jdsupra.com/legalnews/the-new-name-image-and-likeness-playing-71376/.

[36]         See Kristi Dosh, NAIA Becomes First in College Sports to Pass Name, Image and Likeness Legislation, Forbes (Oct. 7, 2020, 1:27 PM), https://www.forbes.com/sites/kristidosh/2020/10/07/naia-becomes-first-in-college-sports-to-pass-name-image-and-likeness-legislation/#1c8e46f611aa.

[37]         See Press Release, Rep. Anthony Gonzalez, House of Reps. (Sept. 24, 2020), https://anthonygonzalez.house.gov/news/documentsingle.aspx?DocumentID=288.

[38]         See Gregg Clifton & Iciss Rose Tillis, NCAA Takes Additional Steps Toward Ratification of Name, Image, and Likeness Legislation, JD Supra (Oct. 16, 2020), https://www.jdsupra.com/legalnews/ncaa-takes-additional-steps-toward-81002/.

[39]         See Murphy, supra note 9.

[40]         McCann, supra note 25.

A Circuit Split Remains Regarding the Standard Applied to Claims for Trademark Infringement by Commercial Products that Express Humor.

 *Claudia Wozniak

Jack Daniel’s Properties, Inc. (Jack Daniel’s), a whiskey seller, submitted a petition for a writ of certiorari in the Supreme Court of the United States.[1]  Jack Daniel’s sought review of the Ninth Circuit’s ruling that works of artistic expression do not violate the Lanham Act unless the trademark holder can establish that the defendant’s use of the trademark is either “not artistically relevant to the underlying work” or it “explicitly misleads consumers as to the source or content of the work.”[2]  Jack Daniel’s also asked the Supreme Court to review the Ninth Circuit’s decision that the use of a trademark containing some “protected expression,”—humor in this case—is noncommercial, and therefore there could be no claim of dilution by tarnishment under the Lanham Act.[3]

The protected humorous expression that was at issue came in the form of a squeaky dog toy.[4]  VIP Products LLC “designs, markets, and sells ‘Silly Squeakers,’ [which are] rubber dog toys that resemble the bottles of various well-known beverages, but with dog-related twists.”[5]  One of these dog toys bears a resemblance to a Jack Daniel’s whiskey bottle, has the words “Bad Spaniels” under an image of a spaniel, and is labeled “the Old No. 2, on your Tennessee Carpet,” whereas the actual Jack Daniel’s label has “Old No. 7 Brand Tennessee Sour Mash Whiskey” written on it.[6]  Jack Daniel’s demanded that VIP Products stop selling the toy, and VIP responded by seeking a declaration that their product did not infringe or dilute Jack Daniel’s trademark.[7]

Continue reading “A Circuit Split Remains Regarding the Standard Applied to Claims for Trademark Infringement by Commercial Products that Express Humor.”