Category: News Feeds

A small story made big news last week because it was emblematic of a bigger problem in the United States — racism.

Miya Ponsetto, a 22-year-old woman visiting New York City and staying at the Arlo Soho hotel, accused a Black teen, also staying in the hotel, of stealing her iPhone. Not only did she accuse him, but she tackled him in the lobby, rifled through his pockets, and screamed, “No, I’m not letting him walk away with my phone,” insisting security arrest him.

The teen’s father happened to be well-established jazz trumpetist, Keyon Harrold, who didn’t take the accusation lightly. He saw it as an attack against his son merely because of his race. He videotaped the encounter and alerted the media.

The young woman flew back home to Southern California but with the fervor of the media attention, the Manhattan District Attorney’s office decided to make an example of Ponsetto and sent detectives to California to arrest her.  She was extradited yesterday [Sunday] and charged with the felony count of attempted robbery, as well as lesser crimes including attempted assault, attempted grand larceny and acting in a manner injurious to a child.  Harrold’s son was only 14.

The legal analysis justifying the top charge of attempt robbery is that by trying to seize the teen’s phone, she was attempting to rob something that didn’t belong to her and used force (the tackle) in the attempt.

It seems to me that but for the media brouhaha, this case would never have been prosecuted. The prosecution will have a tough time proving the young woman intended to take something she knew wasn’t hers. But Manhattan D.A. Cyrus Vance is not taking what their office presumes was racial stereotyping lightly. Interesting for me since so many of my clients, young Black men, who happen to be in cars or just hanging out on the street, are routinely stopped, badgered, and frisked by police for very little reason other than their skin color.

Now let’s talk about Ponsetto’s California lawyer. Following the media firestorm Ponsetto’s actions caused, she decided to set the record straight by giving an “exclusive” interview to Gayle King of CBS This Morning. She hired a lawyer, Sharen H. Ghatan, to accompany her on air. Obviously, Ghatan didn’t prep her client well for the questions that ensued.

During the interview, Ponsetto was neither contrite nor retiring. “I’m a 22-year-old girl,” she told Gayle King. “I don’t — racism is — how is one girl accusing a guy about a phone a crime?”

When Gayle King, troubled by Ponsetto’s attitude, pressed further, Ponsetto held up a hand, “Alright, Gayle. Enough,” ending the interview.

A lawyer’s job, even when her client acts like a complete jerk, is to stand by that person’s side except in the case of outright fraud or perjury (unless you’re Rudy Giuliani).

Instead, Ghatan, following up on her client’s poor behavior, chose to throw her under the bus, telling journalists, “I don’t think she should have handled it the way she did,” she said. “She was prepared and guided. She apologized, but not in the way she should have. She said so many other things that it almost blurred her message. It was so disrespectful.” With a lawyer like that, who needs a lawyer?

The first job of any lawyer is to protect her client, not her own reputation.  Thus, when Ghatan told the press, “She went off script. She decided to disregard my advice and just go on her own,” she made things worse for Ponsetto in efforts to make them better for herself.

That instinct may be understandable, but it’s not the job of a criminal defense attorney to announce her client’s errors to the media. It’s her job to prep the client properly or cancel the interview in its entirety. That’s not to say clients don’t go off script or announce things to the media you wish they hadn’t. But you’ve got to grin and bear it.

Maybe sometime long after the case is over, you can write about it in your memoir. But not till then.

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Toni Messina has tried over 100 cases and has been practicing criminal law and immigration since 1990. You can follow her on Twitter: @tonitamess.

The rest of 2020 may have pushed the impeachment process from everyone’s memory banks, but the first impeachment trial of Donald Trump began a year ago tomorrow. All the sanctimonious “well, actually, ‘impeachment’ is different than an impeachment and conviction” hacks had already lived out their Brainy Smurf dreams and the entire country was well prepared for the process.

Alas, it’s 2021, and the sanctimony is back, so let’s have a quick review. The House of Representatives has impeached Donald Trump. This sets up a mandatory trial in the Senate to be presided over by a very grumpy Chief Justice of the United States.^[1] The Senate will need 67 votes to convict and remove Trump from public office. There are disingenuous hacks arguing that Trump cannot be impeached after leaving office, an interpretation that would turn the lame duck session into the Purge but with nuclear weapons as there would be no consequences for any violation of public trust. That’s why smarter people point out that the Constitution says that an impeachment conviction “shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.” In other words, a conviction cannot throw the office-holder in jail but can result in removal and/or a bar from future office.

And that case will be prosecuted in the Senate by a gaggle of “managers” appointed by the Speaker of the House. Pelosi has chosen a whole new crop of managers this time around, eschewing experience for a fresh perspective. But who are these new managers, and what legal chops do they bring to the table?

Well, here you go. Think of this as a starting lineup announcement at an NBA game. Fire up Sirius by the Alan Parsons Project:

Representative Jamie Raskin (D-MD), Lead Manager: Raskin graduated from Harvard Law in 1987 and took a gig as an Assistant AG in Massachusetts. Just two years later he was general counsel of the Rainbow Coalition, where he served until 1990, when he became a professor at American University’s Washington College of Law. He represented Ross Perot in 1996, arguing that the candidate still deserved a place at the presidential debates even though his influence was significantly reduced from 1992 levels. So, before he’s 10 years out of law school he’s represented Jesse Jackson and Ross Perot… the man works quick. Raskin spent a number of years in the Maryland state legislature before moving up to the big leagues in 2016. He’s the Chair of Subcommittee on Civil Rights and Civil Liberties and Vice Chair of the Subcommittee on the Constitution. He impressed me when he gave a panel talk a number of years ago about the need for progressives to let go of the judiciary as a site of salvation. Sadly, Raskin is taking on this burden in the shadow of the recent loss of his son.

Representative Diana DeGette (D-CO): A 1982 NYU Law grad, DeGette worked as a public defender for two years and entered privat practice focusing on workers’ rights. She entered politics in 1992, joining the Colorado legislature. While in that job, she authored a bill to protect access to abortion clinics that the Supreme Court ultimately upheld in 2000. She ran for federal office in 1996, succeeding the retiring Pat Schroeder and has steamrolled any competition for her office since.

Representative David Cicilline (D-RI): A Georgetown law grad in 1986, David Cicilline is in his sixth House term. As a college student, he set up a College Democrats chapter at Brown with John F. Kennedy Jr. which makes you wonder how there had never been Democrats at Brown until the early 80s. He served as a public defender in D.C. until returning to Rhode Island and getting into politics. He was mayor of Providence before running for Congress. But perhaps Cicilline’s top qualification for the job is that his father was a mob lawyer in the 70s and 80s and there’s no better lens into how the Trump administration operates than a familiarity with organized crime. Cicilline is currently Chair of the Subcommittee on Antitrust, Commercial and Administrative Law so maybe he can explain to Parler why their lawsuit is falling apart.

Representative Joaquin Castro (D-TX): The ideological divide in the United States can be distilled into whether you know that Castro’s twin brother Julián was Secretary of Housing and Urban Development or whether you think his brother is the First Secretary of Cuba. Harvard Law class of 2000, both Castro brothers worked at Akin Gump out of school, before forming their own firm in 2005. Joaquin was already a state representative before leaving Akin, having won a seat in the 2002 election as a 28-year-old. He moved up to the U.S. House after the 2012 election.

Representative Eric Swalwell (D-CA): You might remember Swalwell from the 15 seconds where he ran for president last year. Or you might vaguely recall him from the wingnut outrage that he once worked with a fundraiser who was later suspected of being a Chinese spy. Swalwell cut all ties with her as soon as authorities pointed this out, but this is now a right-wing grievance because… spies are good at hiding who they are? I guess. Swalwell hails from University of Maryland Law, where he graduated in 2006 before he took a gig as a prosecutor in Alameda county.

Representative Ted Lieu (D-CA): A 1994 Georgetown Law grad, Lieu entered the Air Force as a military prosecutor and is now a Colonel in the Reserves. After a career in California politics, he ran for the House in 2014. He’s one of the better Twitter users in American politics, allowing him to understand the power of the platform that was so recently used to urge an assault on the Capitol. Perennial embarrassment Rep. Devin Nunes threatened to sue Lieu last year prompting Lieu to inform his fellow representative “I welcome any lawsuit from your client and look forward to taking discovery of Congressman Nunes. Or, you can take your letter and shove it.”

Representative Stacey Plaskett (D-VI): Plaskett represents the U.S. Virgin Islands as a non-voting delegate in the House. She earned her degree from American University Law in 1994, attending courses at night while working full-time. She worked for Jones Day, but that was before becoming a lawyer so we’ll give her a pass. She served as an Assistant DA in the Bronx from 1994 to 1997 and then served as a lawyer to the House Committee on Ethics in the U.S. Congress and the Department of Justice before moving to the Virgin Islands. She made news most recently by choosing to risk the rioters rather than join the Republican-induced superspreader event.

Representative Madeleine Dean (D-PA): Dean graduated from Widener University Delaware Law in 1984. Dean worked at a small firm and then with the Philadelphia Trial Lawyers Association, where she rose to serve as executive director. She later set up a three-woman law practice before abandoning the practice altogether and becoming an English professor. After a stint in state politics, she’s served in the House since 2019.

Representative Joe Neguse (D-CO): Neguse graduated from University of Colorado in 2009. He served on the Board of Regents of the Buffaloes and worked in private practice before running for Colorado secretary of state. He lost, but ended up appointed as Colorado’s top regulator. He joined Snell & Wilmer in 2017 while gearing up for his House run. Speaking on his role as an impeachment manager, Neguse said:

Rep. Neguse: I am humbled that the speaker would have confidence in me to ask me to serve in this capacity. It’s something I don’t take lightly. It’s a duty of the highest constitutional order in the House.

I’m certainly going to be preparing quite a bit and getting ready for the trial in the coming weeks, hopefully.

So there are your 2021 impeachment managers. Look forward to seeing a lot of them on cable news in the coming weeks.

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[1] Not the “Chief Justice of the Supreme Court” as news outlets will inevitably say multiple times over the coming weeks. There, I can be sanctimonious too.

Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

Ed. note: This is the first in a series on the changing practice of law in varied areas. 

In pre-COVID times, commercial real estate attorney Brian Lewis could walk a subdivision plat down to the municipal office and see it processed on the same day.

“You could do it in an afternoon,” said Lewis, who is chair of the real estate, development and finance group at Ryan, Swanson & Cleveland, PLLC, in Seattle. “You could write your check and walk out with a recorded plat. It could take about four hours.”

Those days are over.

“Now, you have to take it down, drop it off, and wait. And the subdivision doesn’t exist until that’s done. You can’t do anything else. You’re just at the mercy of the process.”

Although Lewis’s firm records electronically whenever possible, this isn’t an option for plats. “The turnaround is a couple of weeks,” Lewis said. “Not that bad, but slower.”

Commercial real estate practitioners like Lewis are at the mercy of many things in the new pandemic reality — from recording and permitting hurdles to the continued suffering of retail businesses and the landlords who serve them.

Numerous developments have forced these lawyers to adapt, but after an initial shock, they have also largely adjusted their day-to-day to a new normal. 

“Uncharted Territory”

John A. Goldstein, who counsels and advises clients on commercial real estate and finance transactions nationwide from the Chicago office of Greensfelder Hemker & Gale, P.C., described an experience similar to Lewis — being at the mercy of government offices whose personnel have shifted to working at home.

“We’re using virtual notaries and also dealing with much slower-than-usual recording of documents, so the companies have to come up with more assurances for title companies that there’s not a lien.”

Recording is not the only government interaction that takes longer, of course.  When building code and occupancy permits are delayed, Goldstein said, this can create a domino effect. If a landlord can’t finish a build-out, that landlord can’t collect rent and might not be able to pay the lender.

“Government agencies are trying to come up with things to help, but this is uncharted territory in every respect,” he said. “We’ve never encountered something like this.”

“Everything is virtual,” said Alan Nochumson, the founder of Nochumson, P.C., a four-attorney real estate firm in Philadelphia. “The Zoning Board of Adjustment is all virtual. For a short time period we couldn’t file a thing, but then the city made adjustments.”

A new online product allowed practitioners to file, but nonetheless, the process for obtaining approvals and variances can be difficult.

“A lot of times you need a warm body to talk to,” Nochumson said. “Sometimes, that was hard. For every 10 emails I sent, I’d get one response.”

Despite delays, Nochumson reported that his firm is busy and his real estate developer clients are busy. He suspects it is pent-up energy because, early in the pandemic, no deals were happening at all. Recently, he helped a bar get zoning as well as obtained a variance for a pizza shop. Businesses are anticipating a return to normal activity.

In the early days, Nochumson grew concerned because a big part of his practice involves zoning board hearings.

Before things started to move again, “I did a lot of marketing and informing my clients what was going on in government and telling them what they needed to do related to that,” Nochumson said. “I told my clients, ‘You’ve got to prepare.’” 

Many took his advice and were ready to proceed when restrictions eased.

“During those first two to three months [of the pandemic] it was more about keeping people calm and informed,” he said.

“Business as Usual”

Recording and permitting processes are not the only things that gobble time. While Goldstein reported that purchases and sales of commercial real estate are still happening during the pandemic, the deals take longer to close because nothing happens in-person. Everything is by email. In some instances, closings have been conducted in cars in parking lots.

“These kinds of things were unheard of before,” Goldstein said.

Nevertheless, Goldstein’s practice has been consistent. New types of deals have poured in to fill gaps, and he’s been pleased with the technology that allows for remote work.

“After the initial shock, it became a day-to-day thing,” he said. “It was business as usual.”

Working at home does come with its wrinkles. Goldstein said that in the old days his firm used to conduct lunch meetings to discuss clients or marketing or perform administrative work.

“Now, those working remotely don’t want lunch meetings — they have to feed their kids.”

Lewis described similar changes to his practice. The number one difference in these pandemic times, he said, is that he hasn’t met with a client in-person for nearly a year. Instead, he’s used emails, phone calls, and Zoom meetings.

“There hasn’t been less communication, it’s just not in-person,” he said. “I used to meet with clients every three months or so.”

Along with meetings, notarization has gone remote. The state of Washington passed emergency legislation to authorize virtual notaries, and firms had to purchase a certain kind of software.

While Lewis has not used it himself, his colleagues report that the system requires multiple verifications. The state’s complex notary law — for example, any lease longer than a year must be notarized — doesn’t make it any easier.

“Our firm has found this pretty difficult to manage,” he said.

All in all, though, the commercial real estate market in the Seattle region has held its own. “We were riding a pretty strong wave going into this,” Lewis said. “A lot of people thought we were due for some kind of correction anyway.”

The pandemic may have accelerated this correction from an overheated market in office-space leasing and many construction projects — as evidenced by the numerous cranes that dotted the famous Seattle skyline — but Lewis has not seen a big uptick in bankruptcy.

 “It was running pretty hot before this hit,” Lewis said, “and this really hasn’t caused it to tank.”

At long last, Google shared it had closed its planned acquisition of Fitbit. But there’s just one catch: the deal is still being investigated by the U.S. Department of Justice.

The company’s explanation for the unusual move was that it had waited long enough.

“We complied with the DOJ’s extensive review for the past 14 months, and the agreed upon waiting period expired without their objection,” a Google spokesperson wrote in an emailed statement. “We continue to be in touch with them and we’re committed to answering any additional questions.”

Google also claimed the deal would increase competition in a crowded wearables market, despite regulators’ concerns about the contrary. For example, given that Google also designs smartphones’ Android operating system, could it limit certain functionalities — such as being able to check email on other wearables?

To assuage regulators, Google said it would continue to license public APIs covering all core functionalities so that other wearables can continue to operate with an Android smartphone.

The company also addressed privacy questions, saying it would not use health data from wearable devices for its advertising business, and would store Fitbit’s user data in a separate “data silo.”

Those promises were enough for the company to get the green light from regulators with the European Commission, but Australian and U.S. regulators are still continuing their investigation of the deal.

Google first announced plans to acquire Fitbit for $2.1 billion in 2019, addressing a hole in the tech giant’s healthcare plans. While the company has developed an operating system for wearable devices, called WearOS, it was primarily used by fashion brands, such as Fossil. It hadn’t made the same strides in healthcare as competitors Fitbit or Apple, which both have FDA-cleared algorithms to detect atrial fibrillation and are using their wearables for virtual clinical trials.

That said, Google is wading into the space. Last month, it rolled out a health research app, with plans to study how respiratory illnesses are transmitted in conjunction with Harvard Medical School and Boston Children’s Hospital. Fitbit, too, has been assessing whether its devices could be used to detect and follow the spread of viral respiratory illnesses.

Photo credit: Fitbit 

Mental health issues in Biglaw are once again a hot topic of conversation. Perhaps it isn’t surprising, we know substance abuse and other mental health issue impact the legal profession more than most. A study by ALM reveals some disturbing statistics:

74 percent said the legal profession has had a negative effect on their mental health over time;
56 percent of respondents said mental health problems and substance abuse are worse in the legal industry than in other industries;
41 percent of respondents said mental health problems and substance abuse are at a crisis level in the legal industry;
17.9 percent of respondents said they have contemplated suicide during their professional legal career;
31.2 percent of respondents said they are depressed;
64 percent of respondents said they have anxiety;
10.1 percent of respondents said they have an alcohol problem; and
2.8 percent of respondents said they have a drug problem.

But to really grapple with the problem, the profession needs to see the issue as more than impersonal numbers. They need real stories of what it is like. That’s part of the reason the death by suicide of Sidley Austin partner Gabe MacConaill has been so poignant in the industry. His body was found with a self-inflicted gunshot wound in the firm’s parking garage, but it was after his death that his story’s impact was spread. His widow, Joanna Litt, wrote a provocative op-ed titled “Big Law Killed My Husband,” detailing the stress and “maladaptive perfectionism” MacConaill dealt with and it has struck a nerve among lawyers everywhere.

Now another former Sidley partner is opening up about his struggles with mental illness. Kent Halkett wrote a piece for the Tennessee Bar Association urging the profession to take mental health seriously, particularly in the wake of COVID-19:

The law is an inherently stressful way to earn a living. The profession is now a business. Poor mental health is a medical condition. It is perpetuated in the law through a combination of shame, stress, status and stigma. Attorneys — who are excellent problem solvers by nature, education and training — have not solved the mental health problem in their ranks. Why?

The good news: attorneys with mental health challenges can thrive in the profession.

The legal profession needs to refocus its attention and resources on this crisis. Colleagues are suffering on a daily basis. The COVID-19 virus pandemic has disrupted the practice of law and increased stress levels. The time is now.

And he draws some direct parallels between MacConaill’s tragic story and his own experience at the same firm:

Similarly, in 1995, I was a young litigation partner at Sidley Austin under severe pressure from being tasked by the firm’s management with taking control of the “case from hell” and fixing it. I readily tackled the assignment. I worked around the clock, nose to the grindstone, until the immediate threat had been successfully resolved. However, internally, something was terribly “wrong” with me. A couple of months later, I first saw a psychiatrist for my ongoing mental anguish and was diagnosed as suffering from “clinical depression.”

The diagnosis was a relief and a nightmare. There was a medical reason for my misery, but I was absolutely convinced that my career at Sidley Austin and in “Big Law” was over.

Halkett says that he never discussed his mental health struggles with anyone at the firm, and the combination of the workload and his mood disorder took its toll. As a result, he says his time at the firm was cut short, “prematurely”:

I was most afraid that I would be labeled “damaged goods” if my condition was known by the firm’s management. My worst fears were confirmed. I took six weeks of paid leave from the firm. When I resumed my practice, I went right back to having my nose to the grindstone, despite my painful experience, ongoing recovery and better instincts. I did high-quality legal work and consistently obtained good results for the firm and its clients. My colleagues did not know about my mood disorder, and they did not detect anything “wrong” with my legal abilities. Nonetheless, my career at Sidley Austin hit a plateau that I could not move beyond. The firm no longer directed choice cases and assignments to me. It curtailed my administrative contributions. My compensation was stagnant. It was clear that my time in “Big Law” was prematurely over. I resigned, and joined a small firm that provided an opportunity to continue to practice high-quality legal work, and offered the possibility of a brighter future in the legal profession.

Years later,bigla Halkett again re-entered the world of larger law firms. But his experience shows how pervasive the issues are, and not limited to a particular firm:

After a few years, I moved again laterally as a litigation partner in an old-line, well-respected California firm with more than 100 attorneys and multiple offices. I thought that my struggle with depression was behind me forever. However, after successfully resurrecting my career and practicing without any further mental health incidents for more than 15 years, my depression resurfaced with much more severity. Again, I quickly became “damaged goods” for my new firm. I left and tried to reinvent myself at another firm, but I was fighting a losing battle. I attempted suicide less than six months later.

Halkett says the combination of stress, status (the drive for it), and stigma create a roiling cauldron that exacerbates mental health issues in Biglaw. He urges the industry to “create a culture where all attorneys ‘feel safe’ to reach out to their family, friends or professional colleagues another attorney or, as appropriate, their firm or local bar association.” That’s something we can all get behind.

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Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

The majority of Biglaw firms have rolled back their COVID-19 austerity measures the world over, but the coronavirus-related changes are far from over. With employees set to be working from home for the indefinite future, restructuring is now the name of the game, and at some firms, that means layoffs.

That’s what’s happening at Norton Rose Fulbright, a firm that placed just outside the top 10 in the most recent Am Law 100 rankings. NRF is conducting a restructuring in its Europe, Middle East, and Asia (EMEA) offices, and more than 130 jobs will be lost in the process. Most of the cuts will be made in the firm’s London office.

It’s not just staff members who will be feeling the pain of these cuts — some attorneys are affected as well. Legal Week has more information:

In total, the firm has scrapped 24 legal PAs, 19 fee-earners including counsels and associates, and 89 business services functions across the U.K., Europe, Middle East and Asia arm. The arm’s managing partner, Peter Scott, told Law.com International that the individuals affected have been offered a “generous package” as part of the process.

Scott noted that the cuts weren’t a “direct response” to COVID, but came as part of a review into the firm’s business services functions, which just ended in December. “Our new operating model will help us serve our clients as effectively and efficiently as possible,” he said. “Unfortunately, a number of colleagues who have made important contributions will be leaving us. We have followed a process that is as fair, robust and sensitive as possible, to bring a swift resolution.”

Best of luck to all those affected by the layoffs at Norton Rose Fulbright.

If your firm or organization is slashing salaries, closing its doors, or reducing the ranks of its lawyers or staff, whether through open layoffs, stealth layoffs, or voluntary buyouts, please don’t hesitate to let us know. Our vast network of tipsters is part of what makes Above the Law thrive. You can email us or text us (646-820-8477).

If you’d like to sign up for ATL’s Layoff Alerts, please scroll down and enter your email address in the box below this post. If you previously signed up for the layoff alerts, you don’t need to do anything. You’ll receive an email notification within minutes of each layoff, salary cut, or furlough announcement that we publish.

Norton Rose Cuts 132 Roles, London Hit Hardest [Legal Week]
Over 130 jobs axed in Norton Rose Fulbright’s business overhaul [The Lawyer]

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Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.

If one thing consistently animated the otherwise naturally inanimate Jay Clayton during his tenure atop the Securities and Exchange Commission, it was an abiding distaste for whistleblowers. Whether motivated by laziness or snitches-get-stitches sensibility about one’s duty of loyalty to one’s employer, it is possibly the only thing the otherwise amorphous white-shoe attorney ever really believed it. So you could be absolutely certain that if there was anything Clayton was going to get done as the clock ran down on his patron’s term and the whistleblower complaints began to horrifying flood his office, it was going to be pushing through his plan to change the SEC’s whistleblower-award determination scale to “whatever the fuck I feel like,” which he did.

As of January 14, the only state that can accurately and confidently declare that college athletes will have the ability to commercialize their names, images, and likenesses in 2021 is Florida. That is true despite numerous college athletic programs announcing the creation of programs, bearing unique names such as LEVERAGE and SOAR.

For some time, there has been little to no doubt that college athletes across the country will be able to enjoy some form of publicity rights, even if it meant that athletes in certain states (such as Florida) may have more expansive and less restrictive rights than athletes in other states that have either passed legislation on the subject that will go into effect after 2021 or otherwise. The belief was that the NCAA would finally step up to the plate and hold a vote on proposed legislation with an effective date of August 1, 2021.

The vote was supposed to be held by the NCAA Division I Council during its January meeting. Instead of voting, the Council announced that it was indefinitely delaying any movement on the important athletes’ rights issue. The NCAA is rightfully receiving a fair share of criticism for punting on the vote at the last minute, without any guidance as to if or when a vote on the matter will be rescheduled, from members of Congress, athlete rights advocates, and others.

“Delaying the Name, Image, and Likeness (NIL) vote is yet another signal that the NCAA hopes the federal government will save it from having to fairly compensate their athletes,” stated U.S. Senator Chris Murphy (D-CT). “That’s not going to happen. The college sports industry has a fundamental civil rights issue at the core of its business model, and it’s clear the NCAA doesn’t want to do anything serious to address the inequities that players face. I’m working on legislation to fix this issue by granting athletes the broad ability to make money off of their likeness, and collectively bargain for additional reforms to the system, and am hopeful it will move in this new Congress.”

The NCAA has practically begged Congress to step in to create the law and regulations surrounding college athletes’ publicity rights. It had hoped that Congress would include an antitrust exemption for the NCAA, but it appears that such a wish is rather unlikely to be granted and, instead, the NCAA’s reticence could lead to Congress further pushing the envelope and providing athletes with even more expansive rights than simply the ability to commercialize their names, images, and likenesses. Proposed legislation from U.S. Senators Cory Booker (D-NJ) and Richard Blumenthal (D-CT) would do just that.

“Fair compensation delayed is fair compensation denied. Yet again, the NCAA has missed an opportunity to finally do right by college athletes,” said Booker and Blumenthal in a joint statement. “The NCAA’s delay reinforces the need for Congress and individual states to move forward with legislative remedies that will provide college athletes with rights that the NCAA continues to neglect. NCAA’s disappointing decision further fuels our commitment to passing a strong College Athletes Bill of Rights that will truly advance justice and opportunity for college athletes.”

Ramogi Huma, an athlete advocate and executive director of the National College Players Association also expressed disdain for the NCAA after it promised athletes these rights for over a year and then, all of a sudden, decided to indefinitely postpone a vote on the matter.

“The NCAA is announcing that college athletes can’t benefit from
their own name on the same day of the biggest money-making game in college football — the national championship. It’s a slap in the face to college athletes,” said Huma. “Many of these athletes are Black and from low-income homes — the NCAA treats them like disposable university property. Scores of college athletes are being used to generate money for NCAA sports in a pandemic without the NCAA enforcing any COVID standards. This is what they get in return for their sacrifice?”

Finally, Florida State Representative Chip LaMarca, who sponsored the legislation on name, image, and likeness that ultimately became Florida’s law, effective July 1, said, “allowing collegiate athletes to enter the free market clearly does not fit the NCAA business model. If it did, the NCAA would have evolved years ago. Collegiate athletes cannot wait on congressional intervention or NCAA inaction any longer.”

The clock is ticking. Less than six months remains until Florida’s law goes into effect and not much time for the NCAA to adjust its legislation, gather the Council for a vote, and implement a system to streamline the process. Meanwhile, Congress is also left with little time to consider a number of pending bills on the subject matter, and has other issues of great concern to confront over the coming months. It is possible that, come July 1, 2021, only athletes in Florida are able to enjoy the ability to earn money when they are not actively participating in sporting events.

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Darren Heitner is the founder of Heitner Legal. He is the author of How to Play the Game: What Every Sports Attorney Needs to Know, published by the American Bar Association, and is an adjunct professor at the University of Florida Levin College of Law. You can reach him by email at heitner@gmail.com and follow him on Twitter at @DarrenHeitner.

* A Yale Law professor who taught Ted Cruz and Josh Hawley claims his former students didn’t pay attention to his lessons. To be fair, law school lectures are usually kind of boring… [USA Today]

* President Trump is reportedly having a difficult time finding lawyers to represent him at his second impeachment trial. [Bloomberg Law]

* Here is some advice from a “lottery lawyer” in case any of you win the extremely high Mega Millions or Powerball jackpots over the weekend. [CBS News]

* A lawyer for a person accused of rioting at the Capitol last week says that President Trump should pardon his client. [St. Louis Post-Dispatch]

* The California Bar is evaluating new ways of delivering legal services. Would be interesting if Uber and Lyft got into the legal services delivery business… [Bloomberg Law]

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Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.