This is Bloomberg Law with June Brusso from Bloomberg Radio.
These guns were being purchased and used in crime. They were sold to be crime guns. There was a one thousand percent increase between twenty seventeen and twenty twenty one in the number of these guns that were recovered as part of criminal investigations. And it makes perfect sense because the whole reason why you would want to get your hands on one of these unseerialized, untraceable firearms is if you are a prohibited person or you want to use that gun in a crime.
US Solicitor General Elizabeth Prelager argued that the Supreme Court should uphold the Biden administration's regulation of ghost guns, nearly untraceable firearms that can be assembled at home in as little as twenty minutes. During oral arguments today, the justices grapple with the question of whether ghost guns meet the definition of firearm under the Federal Gun Case Act that would allow the government to regulate ghost guns in the
same way it regulates other firearms. The analogies were plentiful. Justice Samuel Alito, who seemed skeptical of the government's argument, like in gun kits, to cooking ingredients.
I show you I put out on a counter some eggs, some chopped up ham, some chopped up pepper, and onions. Is that a Western omelet?
No, because again those items have well known other uses to become something other than an omelet. The key difference here is that these weapon parts kits are designed and intended to be used as instruments of combat, and they have no other conceivable use.
But Justice amy Cony Barrett jumped in comparing gun kits to meal kits.
I know, preloger, I just want to follow up on Justice Alito's question about the omelet. Would your answer change if you ordered it from Hello Fresh and you've got a kit and it was it's like turkey chili.
But all of the ingredient answer in the kit?
Yes.
Joining me is Kevin Tobia, a professor at Georgetown Law. Many people might expect that this is a Second Amendment case since it concerns guns, But tell us what the question before the court.
Was here, right, So it's not a secondmendent case. It's a statutory case. So it concerns the Gun Control Act of nineteen sixty eight, And there's two questions in the case. And so both of them involve the meaning of different language in this statute. So the first one is about a provision of the statute that defines firearm to include any weapon which will or is designed to or may readily be converted to expel a projectile by the action and explosive And so the first question is whether that
definition encompasses gun parts kits. The second question is about another part of the STETSUL definition, which includes firearm to also include a frame or receiver of any such weapon. So those are the two interpretive questions. And as you say, it's second a medic case. So it's in many ways it's like last terms case Garland versus Cargol, that bump stock case. That was another statutory case that involved questions related to firearms law.
So a lot of the oral argument seemed like sort of mind numbing, with the justices discussing, you know, the partially assembled guns and the pieces tell us what was going on there? Is they you know, tried to explore the parts of the gun.
Yeah, it's a great question, and in some ways it may also be reminiscent of again that kind of Cargole case about the bump stocks. The opinion in Cargol had a lot of technicalities about different parts of the gun.
So the question that in some ways is actually kind of simple, right before you get to like all the kind of complexity that they were working through, which is what counts as a firearm for this law, right, And so these gun parts kits are kits that are sold, they're marketed and sold as kits that you couldn't buy
and assemble and construct into a functional firearm. And so you know, a lot of the conversation was drawing analogies to different sorts of goods, playing you know, kind of with language and trying to understand you know, what counts
as an omelet or what counts as a table. Right, So you know, even before getting to the technicolity's guns, right, some of these examples, like Justice Alito offered this example kind of hostile to the government's position that if we just have you know, peppers and mushrooms and eggs, that's not an omelet yet. So in the same way, right, like a collection of gun parts is not is not a firearm yet. And just as Barrett, actually you're sort of responded and said, well, what if those come in
a in a Hello, fresh kit. We actually might understand that as an omelet even though it's not completely assembled yet. And you know, the example of Nikia table came up as well. So, as you say, right, some of the argument got into the technicalities of like what exactly is included in these parts kits? What's a frame and receiver.
It was also interesting that more broadly, a lot of the justices were drawing these analogies to other sorts of items that were pretty comfortable to call tables even though they're unassembled, or omelets even though they're unassembled.
And it was interesting when the attorney representing the manufacturers and gun rights advocates, Peter Patterson, tried to compare these ghost gun kits to a hobby quote, just like some individuals enjoy working on their car every weekend, some individuals
want to construct their own firearms. Chief Justice John Roberts said, drilling a hole or two, I would think doesn't give you the same reward that you get from working on your car on the weekends, And then more pointedly said, what is the purpose of selling a receiver without the holes drilled in?
Yeah, so I thought that that line of questioning from Justice Roberts was really interesting, I think, especially if you're trying to read the tea leaves and sort of think about where some of these justices will vote. And I think Roberts is a kind of important one in this case. He asked, if you say, straight up right, like, what's the purpose of selling a receiver without the holes drilled in it? Interesting question also because it refers to that
thing as a receiver, right, which arguably it is. And you know, one answer from Patterson, representing Vendorstock is you know people buy this as a hobbyist, right, in the same way you might buy like a collection of unassembled parts to make a ship or like a little toy ship or model or something, or working on a car and you enjoy it. And Justice Roberts really did not
seem to be buying that answer, right. He said, you know, drilling a hole or two like doesn't really give you the kind of reward you get from working on your car over the weekend. And I think he's exactly right there, right, So, like when you look at how these guns are marketed as well, these parts kits are not marketed for hobbyists, like they're not described by language like this is a really leisurely, enjoyable, difficult build.
Right.
They're marketed in terms like this is extremely fast and easy, this is ridiculously easy, like this is dummy proof, like you can do this really fast with no expertise. And so I think that analogy that Patterson was trying to draw between buyers of these kits and buyers like hobbyists just really fell apart. And I think there's a great question from Justice Roberts and also give some insight into where he might stand on this case.
Even the justices that you might consider as sort of antagonistic to the government's argument, some of the more conservative justices, does anyone believe that this is not a kit to assemble a gun? I mean, it just seems so op VI is what's going on here? Are they just trying to look for a loophole to get out of it?
Yeah, so I think everyone agrees that these are kids to be assembled into a gun. You know what kind of Vanderstock's argument is that just because of the kid that you could assemble into a gun does not in fact make it a firearm within the meaning of the statute. And so the sort of question, you know is, and the government sees the statutory meeting a firearm to include these kits, and so you know, one of the kind of like interesting thing that kind of came out today
to your question is like there was some discussion. There was a lot of discussion actually about kind of like where to draw the line. And I think even Patterson conceded that a firearm that's disassembled as a firearm, and so the sort of question about like how close does
it have to be. And so you know, the government's argument the ats and with a general plugger, their argument is, you know, once it's readily convertible, which these kids they think are, or more precisely the sort of APS standard, you know, that's good enough. And so the term firearms shooting compass these kids which could be readily converted to function as firearms very quickly.
Justice Gorsuch asked questions of a textualist nature. Where do you think the textualist analysis gets you here?
So there's two questions in the case, right, So the first one is about whether a parts kit falls under the Part.
A of this statute.
So any weapon which will is designed to or may readily be perverted to expel a projectile by the action explosive. As a matter of textualism, I think that question in this case is extremely straightforward, that these parts kits fall under that language just as part of the ordinary meaning of firearm. And then you underscored by the statutory language. The statue explicitly contemplates things that could be readily converted to expel a projectile, which just seems to be explicitly
describing things like these parts kits. And in question, the sort of second question in the case is about the meaning of the frame or receiver of any such weapons the statue, and many of Justice Gorsug's questions had to
do with that second question. So there the question is, if these companies sell an eighty percent receiver, which, as the government says, you have to drill a few holes in to convert this to a one hundred percent functional receiver, does that count as a frame or receiver within the meaning of the statute? And so, you know, one kind of notable fact about the statute is it does not have the same sort of readily convertible language when it
describes frame or receiver. And so Justice Gorsuch was asking a number of interesting questions about that, and you know, it's kind of going in I think, especially kind of post Garland versus Cargill. I would not have kind of as a matter of politics, expected Justice Gorsage to be favorable to the government in this case, but his questions sort of suggested some openness to following the text in this case to a place that might not lead to
the sort of conservative politics. So he was asking, you know, when you look at this statue and look at the context, every other part of the statute is contemplating convertible parts in addition to fully functional parts, and so in that context, might we understand frame and receiver kind of just giving them the ordinary meaning in that context to also include things that are extremely close to functional and frame and receivers.
I thought it was a really interesting kind of exchange between Gorsuch and this was the general from that point.
So you think that Gorsich might come out on the government side here.
You know, these predictions are always kind of tricky.
I know I'll make some though, too, So.
I would say, going into the case, you know, I think kind of politics tells you a lot about how these cases are going to come out. But after the oral argument, I think Justices Robert Barrett Kavanaugh, and Gorsich all asked questions that I think were indicating that they were taking the text really seriously, and we're I think seriously contemplating the persuasive arguments from the government about the
straightforward textual meaning of the statue. So yes, I think all four of them are sort of conceivably votes for the government here, as are the.
Three liberal justices. Of course, before the oral argument, the Court intervened twice to allow the regulation to remain in place until it issues a decision here, and one time it was over the descents of Justices Clarence Thomas, Samuel Alito,
Neil Gorsich, and Brett Kavanaugh. So a lot of people were looking at this and sort of predicting that the Chief Justice and Justice Barrett might be the ones to side with the liberals here, and that certainly seemed to be the case from the oral arguments.
I think that's right. So I think Justice Barrett as always asked them really kind of insightful questions. So when Justice Alito was giving these examples about you know, well, like if you have like eggs and ham and pepper, like is that an omelet, right, Barrett says, well, you know, she essentially says, is that the right analogy, right, like to a gun parts kit, like if these things are all sold together in a Hello Fresh kit, like that
actually is more like an omelet. And so it's sort of an interesting response that seems, you know, again kind of as a textual matter, favorable to the government's reading.
In response to the first question presented Roberts, who I mentioned before, right, you know, ask this kind of pointed question about what's the purpose of even selling these eighty percent receivers, And he did not seem to be buying the idea that they were sold for hobbyists, but rather the arguments that these are sold, you know, basically for teenagers or other people who cannot purchase a normal firearm
to you know, also potentially commit crimes. So I think both Roberts and Barrett their questioning suggests sort of favorability with the government's reading. And then surprisingly, I think, you know, in light of the stay decision, Justice Kavanaugh right said today to the government, your statutory interpretation has forced So Justice Kavanaugh seemed also pretty persuaded by a lot of
what the government had to say. And as I was discussing previously, Justice Gorsich was asking a number of questions that suggested that his reading of the text seemed to overlap quite a bit with the government. So I was surprised by those latter two given the vote.
On this day.
But it was interesting to see all four of those justices asking questions at least kind of suggested that they're reading the text in that way as well.
Coming up, but what about the Supreme Court's recent decision tossing out a ban on bump stock. This is bloomberg. The Supreme Court seems likely to uphold a Biden administration regulation on ghost guns, the difficult to trace weapons found in increasing numbers at crime scenes. I've been talking to Professor Kevin Tobia of Georgetown Law. So the Solicitor General mentioned several times the explosion in crimes committed using ghost guns and that the new regulations are crucial for solving
gun crimes. And also you had a group of twenty major cities filing with the Supreme Court saying that the regulation appears to have been effective at reducing the use of ghost guns. Where does that fit into the Supreme Court's analysis, especially if it's a textualist analysis.
So that's interesting so right. So, you know, if you think about textualism sort of as stated, with the idea that the court will resolve this question just by looking at the statutory text and giving that language the meaning it would have in the eyes of an ordinary reader, you might think those conserations about the practical consequences are irrelevant. Like that's exactly the sort of political, you know, consequential
decisions that they're trying to screen off with textualism. So what's interesting is if that's right after today, it looks like actually a majority of the justices are inclined to read the text in line with the government. That would be the three Democratic appointees and then potentially Roberts, Kavanaugh,
Barrett Gorsich. I think Roberts in particular was responsive to some of the government's arguments about the practical consequences kind of over and above the text, right to this idea that and there's a kind of relationship between the consequences and the text.
Right.
So, currently, federal law prohibits selling firearms to twenty one year olds. It requires backgrounds, text serialization, all these requirements, and if the court decides that these kits are not firearms, right,
those requirements will not apply at the federal level. And so there's a real concern right that, again, if people who are buying these kits are not hobbyists but rather people who just want a firearm, there's a real circumvention concern that, you know, basically all of the law that would apply to firearm regulation, you know, effectively is meaningless because someone could just get a ghost gun and build their own kit in twenty minutes or however long it takes.
And so, you know, some of Robert's questions, I think we're very much kind of responsive to that set of concerns and the principle that if you read the statute and in sort of that way the way van Astock wants it to, you'll render you a big chunk of federal law meaningless. And so I think that that was also a point that was un besides but both of us those are general but then also by Justice Roberts in some of his his questions, was.
There any argument about agency power and whether Congress gave the ATF the power to change the definition of firearms to cover these kits?
There was like sort of scattered discussion of that question throughout the oral argument. You know, just just as Jackson and I think in particular with asking an intriguing series of questions that are you sort of think of as like in a Postloper Bright world. She was asking questions about like what's the court's role, what's Congress role, what's agency's role. I'm not really sure how much those considerations are going to sort of ultimately make a difference here.
I have a feeling that, you know, the court is just going to kind of proceed and treat this as a sort of stastal interpretation case. There's no invocation of major questions, doctrine and those sorts of concerns at least explicitly with all those questions, right, I'm sort of waiting, as with everyone else, kind of what interpretation and what will look like in a post Looper world. I mean, there's some emphasis from the vander Stock side as well.
There's some dispute about like did the ATF change their interpretation over time? So solicars and our player Leger describe the ATFS approach as very much consistent. Right, So there's actually nothing dramatically new about the ATF. They've always been attempting to categorize as firearms weapons that are extremely close
and what's changed is just the state of the world. Right, there's now these parts kits that are readily convertible to functional firearms that didn't exist, you know, at that scale in nineteen sixty eight. So there's a little bit of
back and forth about that question. Some of the most interesting discussions was Justice Jacksonville, though I'm not sure we got a kind of complete answer and certainly not that a complete answer from the CORD about yet, what interpretation is going to look like in the in the post Sloper world.
So tell me, I know you wrote a brief in the case in Amicus priest.
In this case and some others. I've been working with linguists to you know, one way Ton't kind of think about what we're doing is, you know, mirroring what historians are doing for originalism with linguistics intextualism. Right, So the CORD is going to approach this case. I think today's oral argument clarifies they're going to purchase the case as textualists trying to give the language its ordinary meaning. And there's you know, decades of work in linguistics that would
be relevant to that sort of linguistic question. Right, like, what does the mean? What's the ordinary meaning of firearm? You know, how do we use that and understand that in ordinary context? And so in this case, I worked with a group of linguists to do a couple of things. I'll just kind of mention two. One is, you know, we just looked at just in kind of in context, like how do people use the term firearm and especially how do the buyers and sellers of these terms describe them?
And one thing that's you know, might be sort of surprising is that at least some of the marketers and sellers of these gun parts kids just explicitly describes on this firearms. They don't say like these these are just these are mere parts that could be a firearm. They say this, you know, this is a firearm. This is
a gun, This is a rifle. And so, you know, part of the point that we make in the brief is it just seems like even the sellers and also buyers of these kids in their customer reviews, understand these to be firearms, even though they're like technically not assembled or technically not finish. You got an eighty percent receiver that's you know, requires a little bit of drilling. The second thing we did is we ran a survey of
ordinary Americans. So we presented participants in a survey study with a description of gun parts kits and ask them whether they thought it's a firearm, and we found them that the majority of participants said yes. And so you know, this and some other kind of work in linguistics, I think just kind of like fills in I think the
background for the quarter. That's what we're hoping to do anyway with our brief that you know, to interpret the statue here, the term firearm to include these parts kit is completely consistent with how we ordinarily understand terms like that, and it's also nothing special about firearms. So in lots of different contexts we understand categories like these artifact nouns like firearm, table, bicycle to include members that are like
not perfectly complete. And so you know, if you buy a table from Ikia, as an example, the government has kind of invoked, I think effectively, if you buy a table from Ikia that's not assembled, but it's still a table even though you have to put it together. If you buy a customizable belt and you have to punch holes in it, you got to buy the extra tool and actually like drill kind of punch the hole in
the belt yourself. We still understand that you bought a belt, and so you know, that's all part of the point that for the Court to give this the such of this interpretation, it's not like there's something sort of special or dispointive about firearm, although there are also clear signs in this statute that that's the meaning that Congress was really underscoring.
You mentioned the Cargol case, where just a few months ago, the Supreme Court, in a six to three decision, tossed out a ban on bump stocks, the device that lets semi automatic weapons fire as rapidly as a machine gun. Does that case have implications for this ghost guns case?
So, going into the oral argument, I think, especially if you think that the Court's decision is primarily driven by politics and not actually by textualism, which is a view that many people have, then it's very plausible that this case comes out in this six to three way Garland versus Cargol did with the six conservative justices together in the three liberals dissent, And so that case it actually considered different firearm statue. So it concerns the definition of
machine gun and these bumpstock devices. So that's the device that was used in the twenty seventeen Laus Veig is shooting, most deadly shooting in the US history. And so the kind of technical definition of machine gun is any weapon in the statue, any weapon which shoots automatically more than one shot without manually reloading by a single function of
the trigger. And so basically the bump stock is a device that you could attach to semi automatic that will basically make the gun fire at the rate of a
machine gun. And so the whole debate in that case, and this is kind of getting back to your first question about like all the technicalities of a gun, Like that opinion actually included diagrams of guns and the trigger and like how it functions, and so basically the conservatives read that definition single function of the trigger to mean that the trigger kind of presses and depress, and the way the bump stock works, like the trigger actually presses
and depresses every single time. The liberals read single function of the trigger to mean, you know, one initial pull, like what's the function of the trigger, Someone the user of the gun pulls the trigger, and then everything you know, and then it fires essentially automatic. You know, it's an interesting and kind of complicated case. I mean, I think the simplest thing to say about it is, wherever you come out on Garland versus Cargo, whether it's sort of
easy or difficult case. Textually, the case that they heard today, Vanderstock as a matter of language is like just much more straightforward, And you know, I think it's reassuring actually that the court's oral argument, many of the questions, especially from Barrett and Roberts and Corsach in Kavandah, really seem to recognize that fact, right, you know, especially the first
question and also the second. These gun part kits are firearms in ordinary English, and then the statute explicitly talks about weapons that could be readily converted to expel a projectile, which you know also really underscores that these sort of kits are included. And the context indicates the same with
the frame of receivers. And so, you know, sorry, long answer, but I guess just to say for this oral argument, I think if you think the core is a primarily a political actor, you see the Bumpstock case, you think this is going to come out the same way. Six y three after the oral argument, I've got a little more hope that the Court's going to follow the text, although time will tell. We'll find out sometime next year.
It'll be an interesting decision to read. Thank you so much, Kevin. That's Kevin Tobia of Georgetown Law. A note. Michael Bloomberg, the founder and majority owner of Bloomberg LP, the parent company of Bloomberg Radio, is a donor to groups that support gun control, including Every Town for Gun Safety. Coming up next on the Bloomberg Law Show. The NCAA's two point seventy eight billion dollar settlement with colleges over student
athletes gets a judge's preliminary approval. A judge has granted preliminary approval to the two point seventy eight billion dollar legal settlement that would transform college sports by allowing schools to pay players. For decades, student athletes played for scholarships, a few expenses, and little else, while coaches and athletic departments brought in millions. This settlement would set up a revenue sharing arrangement between schools and athletes, putting millions of
dollars into the pockets of college athletes. Joining me is James Nusbaum a partner at Church Church Hill and Antrim with a practice in sports and higher education law. He's also a former college athlete who played football at Northwestern. James explain how this settlement will work, and perhaps you should start with an explanation of name, image and likeness just in case someone hasn't been paying attention closely to this area.
Name, image and likeness is a unique term that was crafted by the NCAA. I think what it's normally known as for attorneys, particularly those that work with intellectual property
as rights of publicity. So the idea that any person has the right to control how their name, how their image, how their likeness is used to endorse products or in this case, endorse athletic departments and promote the team teams and the schedules and the games, which leads to revenue that the schools and even the NCAAA through its championships receive.
The schools and the NCAA were able to profit off of the students rights of publicity, but the students weren't, and so a couple of years ago, the NCAA changed their rules regarding whether or not students could profit off their name images like that, So you might hear it called their nil. So now these lawsuits, many of them, have popped up alleging that students before the rule change should have also been able to profit from their name,
image and likeness. And so this lawsuit ultimately tries to resolve three different lawsuits. One of them is related to those name, image, and likeness payments, and the other two are related to student athletes alleging that they should have been compensated generally for their participation in athletics, and the
other one for Alston back payments. So that's the case that went to the Supreme Court and said that student athletes could receive up to approximately six thousand dollars for other educational related expenses.
So let's say a school as a star football team. Which athletes on the football team get to partake in this? I mean, suppose you have some who are famous and some who are sitting on the bench.
It's a great question. So there's three primary components of the settlement. The first ones the BACKPAI damages to former student athletes for their lost name, image, and likeness opportunities that student athletes weren't able to be compensated for during their time as student athletes. The other two or forward looking. One of those is an expansion of benefits that can be paid to student athletes. So there's an increased benefits pool where colleges that choose to opt into the settlement.
They don't have to opt in, but those that choose to participate in the provisions of the settlement are able to give expanded financial and other benefits to their student athletes. So those amounts are capped at twenty two percent of the average revenue of the autonomy five conferences and Notre Dame. Your question was which students are given those benefits. Really, there's no rules in the settlement. There's no guidance in
the settlement about which student athletes receive those benefits. As you can imagine, the sports that generate the most revenue tend to be the sports where the vast majority of the quote, name, image and likeness money is currently going, so football, men's basketball, some women's basketball. There are definitely student athletes that are influencers on social media or otherwise cultivated a brand that has monetary value associated with it
that are not necessarily in those three primary sports. The vast majority of nil money has been going to football, players and men's basketball players, so those are likely to be the students that received the highest proportion of the increased benefits that schools were able to give their athletes
as they opted, but it's definitely not required. So what has happened is after the NCAA loosened their name, image and likeness rules, these entities that were kind of colloquially called collectives started popping up businesses that were sometimes not for profits, sometimes for profit that would accept payments from boosters, payments from fans, and then turn around and pay the student athletes in exchange for their name, image and likeness rights.
And the reason these collectives were doing this was because there was still a prohibition on schools directly paying their student athletes for their name, image and likeness right. So you have these collectives that for all intents and purposes, were affiliated with very specific schools, using these payments to induce student athletes to attend those schools, which is expressly against NCAA rules. But there is an injunction in a case in Tennessee preventing the NCAA from enforcing its rules
against these collectives. So all of these pieces are coming together in this settlement, and now the settlement allows that the schools can enter directly into payments with these student athletes in exchange for their name, image, and likeness, and they wouldn't have to do that through these collectives. Again, back to your previous question of who who gets the payments.
One of the things I think schools are grappling with right now is they're trying to remain competitive in football, and they're trying to remain competitive and men's basketball because those sports generate television revenue and they generate ticket revenue. But at the same time, they have other legal requirements like Title nine, and they're trying to figure out one, how does Title nine apply to this expanded benefits pool?
And once we know how it does apply, how are we going to allocate our money for these new benefits?
Accordingly, speaking about Title nine, plaintiff's lawyers have estimated, as you refer to, that around ninety percent of the money is going to go to football and men's basketball players. Those sports bring in the lion's share of the revenue. Now, many groups have told the judge that that's going to be unfair to women athletes and be a violation of Title nine. Explain the Title nine argument.
Yeah, so the argument that it's a violation of Title nine will depend on how Title nine ultimately applies to the Department of Education's Office of Civil Rights has already indicated Title nine will apply to new payments under these benefits, but they haven't given guidance on how they will apply. And so there's two primary ways that they could apply.
The first is through the financial assistance analysis, and depending on whether or not the expanded benefits are included in the scholarship analysis, to require that the dollars be assigned proportionally between the sexes based on the proportion of student athletes that are mail and the proportion that there are student athletes that are female, or if it's determined that it's non scholarship financial assistance in a way that it needs to be equitably available to the two sexes. I
think that's one way Title nine could apply. The second way is through what's called the laundry list of treatment areas. So essentially Title nine requires that athletic experiences student athletes are receiving is equitable, and they have a list of treatment areas that they use to determine qualitatively are these experiences equal in effect. Two of those are recruiting services
and publicity. And so since student athletes are being given this money or they're negotiating these NIL agreements in part as they determine which to go to, I mean that's been part of Judge Wilkins analysis. So the students need to know what their options are as they're making these determinations. I think there's a chance that OCR says, well, that's
part of recruiting services. How much you're budgeting in NIL payments is going to affect recruiting, and that's going to affect what kind of student athletes you're attracting to your schools, and how you're treating your male and female student athletes differently. The second treatment area that I think could be considered as publicity. This area talks about how you're publicizing your
men's and women's sports. And so if your school gives a lot more resources or many more publicity opportunities to your male student athletes over your female student athletes, I think that would potentially implicate that treatment area as well. Generally, that's the framework I think the arguments. If you do pay ninety percent of your expanded benefits to your football players and your men's basketball players. I think it's very likely that you will receive Title nine challenges. I think
those are very strong arguments. The ration now, or where the ninety percent number comes from, is from an expert's opinion in the proposed settlement, where they've a portion of the back pay damages are going to be paid seventy five percent to football student athletes in fifteen percent to men's basketball student athletes. And you might hear people say, if we're able to pay back pay damages according to their proportions, why can't we pay the forward looking benefits
according to those same proportions. And the answer is essentially that Title nine isn't in front of Judge Wilkins. She isn't considering that as she approves these settlements. She's been very clear that she hasn't been considering that. So I don't think it's a strong argument that you can use this experts analysis to justify the discrepancy going forward. If there is a discrepancy and any of the Title nine analysis, schools do have the ability to give a non discriminatory
justification for that discrepancy. The revenue generation of fair market value, those sort of business type arguments haven't been found to be non discriminatory in the past, so I think schools that intend to rely on that could could be taking on some risk.
You played football at Northwestern. Do you think that this kind of deal where some athletes will be paid and others will not, will have a negative effect on sort of the environment for other students at the university.
It's a good question that I'll give a couple of different answers that I don't think it would have changed my athletics experience all that much. I was a walk on student athlete. It was very clear that some of the student athletes were more likely to play, they were more likely to go on to professional careers. I was there because I really liked playing football, but I also was excited about the academics, and I wasn't expecting to
get paid even through scholarship. It was fortunate enough to earn one at the end of my career, but that was sort of a bonus, and even at that time. It's longer than I want to admit, but it wasn't that long ago. Like you could tell the sports that were favored on campus, and football and basketball were popular, So I think there was already some divide between those sports and the other sports on the campus. I think
this will likely make that divide much wider. I don't think that's necessarily great for the athletic department at the whole, but I do think there are arguments that this is a money making operation and if we can generate more money, high tide raises all ship. I don't think that's a strong argument, but you'll hear it a lot. You'll see schools that are trying to figure out how to come
up with this additional revenue. I think there were news reports today and yesterday that Ohio State is going to restrict or eliminate scholarships for men's gymnastics. Ohio State's a huge athletic department. Their football program makes a lot of money. But these schools are going to face tough decisions on how do we find money for these additional benefits that
we want to provide to our student athletes. And I don't think it's a coincidence that an announcement regarding men's gymnastics scholarships being cut happens around the same time that the settlement was preliminary approved. I don't think you should be surprised if that continues to happen. So I have to answer your question more directly. I think it's unfortunate that that will happen. I think that's a trend that
will probably increase for Olympic sports. I think it's more likely to affect male Olympic sports than female Olympic sports for some of the title nine reasons we discussed earlier. But I think this is the end of a long process, Like there's been a lot of momentum leading towards this, and I think we're finally getting to the point where a lot of schools are going to make these tough decisions.
Certainly a lot more to come. Thanks so much, James. That's James Nusbaum of Church, Church, Hittle and Antrim. And that's it for this edition of the Bloomberg Law Podcast. Remember you can always get the latest legal news by subscribing and listening to the show on Apple Podcasts, Spotify, and at Bloomberg dot com, Slash podcast, Slash Law. I'm June Grosso, and this is Bloomberg