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The War On Worker’s Comp

[ 30 ] March 5, 2015 |

The new Gilded Age:

It was exactly the sort of accident that workers’ compensation was designed for. Until recently, America’s workers could rely on a compact struck at the dawn of the Industrial Age: They would give up their right to sue. In exchange, if they were injured on the job, their employers would pay their medical bills and enough of their wages to help them get by while they recovered.

No longer.

Over the past decade, state after state has been dismantling America’s workers’ comp system with disastrous consequences for many of the hundreds of thousands of people who suffer serious injuries at work each year, a ProPublica and NPR investigation has found.

The cutbacks have been so drastic in some places that they virtually guarantee injured workers will plummet into poverty. Workers often battle insurance companies for years to get the surgeries, prescriptions and basic help their doctors recommend.

Two-and-a-half years after he lost his arm, Whedbee is still fighting with North Dakota’s insurance agency for the prosthesis that his doctor says would give him a semblance of his former life.


Bobo: The Midlife Crisis Years

[ 47 ] March 4, 2015 |

Some thoughts should be shared on the op-ed page, and others are probably better confined to scotches at the 19th hole.  And you may want to consider the possibility that if you were less sexist you wouldn’t be thinking these things at all.

…Bobo, the movie!

Deep Thoughts From Movement Conservative Superstars

[ 69 ] March 4, 2015 |

Shorter Verbatim Ben Carson: “Because a lot of people who go into prison go into prison straight — and when they come out, they’re gay. So, did something happen while they were in there? Ask yourself that question.”

But remember, according to the man who invented the concept of same-sex marriage he’s only a homophobe by today’s unforgiving standards!

For King v. Burwell Day

[ 194 ] March 4, 2015 |

I have an explainer about the case up at Gawker.  (Immense credit to them for the awesome graphic at the top.)  For the record, without benefit of oral argument I remained a pessimist:

To oversimplify, the political science literature on judicial behavior suggests that the votes of Supreme Court justices in politically controversial cases tend to be largely determined by the policy views of the justices. When it comes to predicting close cases, however, that “largely” can be confounding, since the justices with the median votes in a given case tend to have the least predictable views. Assuming that all of the Democratic nominees would have voted for the ACA and all of the Republican nominees would have voted against it if they were members of Congress, the “attitudinal model” got 8 of the 9 votes in the last ACA case right–and Pete Carroll was having a great postseason until his last offensive play.

As Ian Millhiser explains, the majority of the Court’s votes can be predicted with near-absolute certainty: the four Democratic nominees will vote with the government, and Justice Alito is “more likely to be struck by lightning while committing in-person voter fraud” than to vote to uphold the IRS regulation. I would put Thomas and Scalia in the latter group as well, and given Kennedy’s hostility to the ACA he’s only marginally more likely to side with the government.

So this case essentially comes down to the Chief Justice. If I was one of those compulsive types who just has to bet, I would say that Roberts is more likely than not to side with the troofers. If you bet that justices will follow their political views, you won’t always be right but the odds are in your favor. But that’s really just a guess, since his vote will depend on factors – how strongly he substantively he opposes the ACA, how he perceives how a particular decision will affect the legacy of his Court, etc. – that are unknowable to outsiders.


If you want to allow yourself any optimism about how Roberts will vote, the horrible consequences of the Court siding with the challengers could be a factor. Republicans, certainly, are going out of their way to reassure the Court that denying the subsidies to federally established exchanges is no big deal. The funniest and most pathetic example of this was seen earlier this week, as House Republicans demanded that Health and Human Services Secretary Sylvia Burwell explain her top-secret plan to magically stop all of the bad effects should the latest Republican challenge to the ACA succeed. In related news, House Republicans plan to steal Burwell’s car and then demand to know her strategy for getting them off if they crash it into a school bus after a 7-martini lunch.

Initial reports from oral arguments suggest that I may have been a tad too pessimistic; in particular, the federalism argument seemed to have substantial appeal to Kennedy. I’ll have more when I have a chance to read the transcript.

Radio Silence

[ 101 ] March 4, 2015 |

still-of-kevin-costner-and-wayne-knight-in-jfk-(1991)-large-pictureAbove: Michael Carvin prepares for oral arguments. Jonathan Gruber was spotted on the grassy knoll.

Today is oral arguments day in King v. Burwell.  My question: is there any good reason why they’re not streamed live, rather than being held until Friday?  I know I have a professional self-interest here, but when a literal life-or-death matter is before the nation’s highest tribunal it seems as if the public should be able to listen in real time.

I also don’t think there are any good arguments against televising Supreme Court proceedings, but baby steps.

While you wait for the transcript to go up, if you’re into that kind of thing, Beutler is excellent once again:

As exercises in bad faith go, Barnett’s double standard is trivial, perhaps even unintentional. By contrast, the crucial elements of the King casethe political theatrics, the enlistment of plaintiffs, the historical revisions, the legal arguments themselvesare all breathtaking in their duplicity. The current challenge offends the sensibilities of its detractors more than the constitutional challenge that nearly voided the law three years ago, because the law’s opponents have enlisted such indefensible tactics. And the horrible thing about it is, they might very well succeed.


You have to be delusional or dishonest to claim that Congress imposed a huge condition on the subsidies, or that we can’t know what Congress was trying to accomplish. Yet a swing justice could decide that “by the State” does not equate to “by the federal government on behalf of the State”to ignore the fuller contextand thus that the law doesn’t do what Congress wanted when Congress wrote it. That would be a huge coup for diction scolds and people who get angry at the thought of poor people going to the doctor. It would also reflect a conscious decision to ignore the clarity of the law’s purpose. If that’s the thin reed on which the Supreme Court interprets Obamacare, in defiance of the democratic process that brought it into existence, something will have gone very, very wrong.

…my longer preview piece is up here.  

Today In Post-Racial America

[ 27 ] March 4, 2015 |

Who would have thunk it?

The Justice Department will issue findings Wednesday that accuse the police department in Ferguson, Mo., of racial bias and routinely violating the constitutional rights of black citizens by stopping drivers without reasonable suspicion, making arrests without probable cause and using excessive force, officials said.


The findings come as Justice Department officials negotiate a settlement with the police department to change its practices. If they are unable to reach an agreement, the Justice Department could bring a lawsuit, as it has done against law enforcement agencies in other jurisdictions in recent years. A U.S. official said that Ferguson officials have been cooperating.

As part of its findings, the Justice Department concluded that African Americans accounted for 85 percent of all drivers stopped by Ferguson police officers and 90 percent of all citations issued.

The Justice Department also plans to release evidence this week of racial bias found in e-mails written by Ferguson police and municipal court officials. A November 2008 e-mail, for instance, stated that President Obama could not be president for very long because “what black man holds a steady job for four years.”

As I said in November, real federal supervision of this department is very much necessary.

An Attica Horror Story

[ 30 ] March 3, 2015 |

A horrible atrocity:

Mr. Williams was wondering why a sergeant would be doing the grunt work of conducting an impromptu drug test when, he said, a fist hammered him hard on the right side of his rib cage. He doubled up, collapsing to the floor. More blows rained down. Mr. Williams tried to curl up to protect himself from the pummeling of batons, fists and kicks. Someone jumped on his ankle. He screamed in pain. He opened his eyes to see a guard aiming a kick at his head, as though punting a football. I’m going to die here, he thought.

Inmates in cells across from the dayroom watched the attack, among them a convict named Charles Bisesi, 67, who saw Mr. Williams pitched face-first onto the floor. He saw guards kick Mr. Williams in the head and face, and strike him with their heavy wooden batons. Mr. Bisesi estimated that Mr. Williams had been kicked up to 50 times, and struck with a dozen more blows from nightsticks, thwacks delivered with such force that Mr. Bisesi could hear the thud as wood hit flesh. He also heard Mr. Williams begging for his life, cries loud enough that prisoners two floors below heard them as well.

A couple of minutes after the beating began, one of the guards loudly rapped his baton on the floor. At the signal, more guards rushed upstairs and into the dayroom. Witnesses differed on the number. Some said that as many as 12 officers had plunged into the scrum. Others recalled seeing two or three. All agreed that when they were finished, Mr. Williams could not walk.


After the beating ended, an inmate who was across from the dayroom, Maurice Mayfield, watched as an officer stepped on a plastic safety razor and pried out the blade. “We got the weapon,” Mr. Mayfield heard the guard yell.

Mr. Williams was handcuffed and pulled to the top of a staircase. “Walk down or we’ll push you down,” he heard someone say. He could not walk, he answered. His ankle was broken. As he spoke, he was shoved from behind. He plunged down the stairs, crashing onto his shoulder at the bottom. When guards picked him up again, he said, one of them grabbed his head and smashed his face into the wall. He was left there, staring at the splatter of his own blood on the wall in front of him.

That’s an excerpt from an essential piece of investigative reporting that will absolutely reward your attention.

The officers responsible have agreed to a plea bargain that can’t be called justice:

Three guards accused of beating an inmate at the Attica Correctional Facility so severely that doctors had to insert a plate and six pins into his leg, each pleaded guilty here on Monday to a single misdemeanor charge of misconduct. The last-minute plea deal spared them any jail time in exchange for quitting their jobs.

And, yet, as the first story makes clear, the surprise is not that the sanctions are so light but that they were prosecuted at all. The system is completely broken.

I assume most of you are aware of Attica’s history. I can’t wait for Heather Thompson’s forthcoming book on the 1971 uprising and its aftermath to come out, but here’s a good summary of the cover-up of the crimes committed by the guards.

Today in the World’s Most Farcical Legislative Body

[ 60 ] March 3, 2015 |


House Republicans reiterate their demands for the administration’s TOP-SECRET PLAN to mitigate the damage should the judicial arm of the Republican Party decide to wreck a majority of the country’s health insurance exchanges:

A Republican House subcommittee chairman is accusing the Obama administration of secretly preparing a fallback strategy if the Supreme Court strikes down a major piece of its healthcare reform law later this year, even as officials publicly maintain that no plan exists.

Rep. Joe Pitts (R-Pa.), chairman of the House Energy and Commerce Health Subcommittee, says federal officials are hiding a roughly 100-page document on the looming court case. The case, King v. Burwell, could cut off ObamaCare subsidies in three-quarters of states and potentially collapse the national marketplace.

Pitts confronted the head of the Department of Health and Human Services (HHS) about the plan, which he says is being circulated among senior officials, for the first time on Wednesday.

HHS Secretary Sylvia Mathews Burwell said she does not know of a planning document.

“This is a document I’m not aware of,” she said in response to Pitts’s questions, before moving on to outlining the negative affects of a ruling against the law. 

”We believe we do not have any administrative actions,” she reiterated.

Rep. Joe Barton (R-Texas) pressed Burwell further.

“I take you at your word that you haven’t seen the plan, but don’t you think it’s prudent that there should be a plan?” he said. “I hope I don’t have a primary opponent, I hope I don’t have a general election opponent, but I have a plan in case I do.”

Burwell held her line.

“We don’t have an administrative action that we could take so the question of having a plan, we don’t have any administrative action that we believe could undo the damage,” Burwell replied.

“The administration is just going to hold up your hands and say we surrender?” Barton added.

“We believe the law as it stands is how it should be implemented,” Burwell replied.

Rep. Leonard Lance (R-N.J.) repeatedly also pressed Burwell on whether she knew of the planning document. Burwell did not categorically deny its existence, saying only that she does not know of it.

“If there is this document, and you know it, I would certainly like to know about a document, because I don’t have knowledge of a 100-page document,” Burwell said.

When Burwell again dove into the negative affects of a Supreme Court ruling against the law, Lance interrupted, “That’s filibustering.”

“I’m not familiar with the document you’re referring to,” Burwell replied.

Democratic Rep. Eliot Engel (D-N.Y.) came to Burwell’s defense, noting that Republicans are supporting the high court challenge.

“It’s somewhat ironic that my Republican friends are demanding that the administration fix problems that they themselves created,” Engel said.


In fairness, the idea that House Republicans would have their own contingency plan is even more ridiculous than this, so why not.


ACA Trooferism: The Reviews Continue

[ 69 ] March 3, 2015 |

Marty Lederman’s post is so brilliant I hesitate to excerpt, but as a teaser:

As I explain below, the challengers are mistaken to assume that absurdity is the only ground the Court has recognized as a basis for deviating from a text’s plain meaning. For what it’s worth, however, the challengers should lose even under that test, because their reading is “objectively absurd.” In particular, if the challengers were correct that tax credits are unavailable for insurance purchased on a federally established Exchange, Congress’s directive to the Secretary of HHS to establish and operate such federal Exchanges in States that have failed to do so would make no sense at all, as the Solicitor General explains at pages 24 and 38-39 of his brief.

Subsection 1321 (c)(1) of the Act provides that if a State elects not to set up an Exchange, or if a State does try to set up an Exchange but misses the deadline, or fails to satisfy all the relevant requirements for an Exchange, the HHS Secretary “shall . . . establish and operate such Exchange within the State and the Secretary shall take such actions as are necessary to implement such other requirements.” The challengers concede (opening brief at 22) that this provision is designed to require HHS to establish the “same Exchange” that would exist if the State established the Exchange for itself, and that “[t]he HHS Exchange should operate just like the Exchange the state would otherwise have established.”

If tax credits were unavailable with respect to insurance policies purchased on an HHS Exchange, however, that Exchange would not operate anything like its State-run counterpart. The HHS-facilitated Exchanges would collapse as insurers dropped out. It would be absurd, indeed, for Congress to have insisted that HHS to set up such dysfunctional Exchanges, without the tax credits that are crucial to their operation. As the SG puts it (p.24), “[a]n Exchange without credits would be a rump Exchange bearing little resemblance to its state-run counterpart—if it could operate at all.” This wouldn’t merely be Hamlet without the Prince; it would be Hamlet without the Danish monarchy . . . more like Rosencrantz and Guildenstern Are Dead.

Stephen Brill brings the shoe leather:

I’ve now gone back and looked at my notes and can report that I interviewed 21 congressional staffers and members last year in my effort to reconstruct the day-by-day narrative of how Obamacare happened. None ever mentioned the possibility that the subsidies did not apply to the states in the federal exchange.

On the contrary, everything they told me — and all of the contemporaneous emails and other internal documents I reviewed — assumed that the federal exchange would simply be a substitute for a state exchange if a state decided not to launch its own, and that the same rules would apply. That is consistent with the instructions Democratic and Republican staff members gave to the Congressional Budget Office when they asked it to “score” (estimate the cost of) various drafts of the law, including the final version.

Perhaps most telling was Iowa Republican Senator Charles Grassley’s early take on the suit. Grassley is the Republican most intimately involved with the drafting of the law. Before finally siding with his GOP colleagues and refusing to vote for the bill, he and his staff worked closely with Democrats in the Senate, negotiating provisions and language and even adding several important provisions of their own that made it into the law.

Last June — again, as an afterthought because the suit seemed so unlikely to be taken seriously by any court — I asked Grassley about it as he walked me through the Senate dining room following an interview. At first he did not even know what I was talking about. When I explained the suit to him and asked if it was possible that the law intended to bar subsidies for people on the federal exchange, he still seemed not to understand and said that it made no sense. Put simply, he seemed incredulous. If congressional intent is the issue, someone should have taken Grassley’s deposition.

Nicholas Bagley on why the horrible consequences of the Court siding with the troofers are legally relevant:

Tough luck, say the plaintiffs: The harsh consequences of a ruling in their favor should be irrelevant to the justices, whose only job is to interpret the statutory text. In any event, the plaintiffs contend, those harsh consequences are perfectly consistent with what Congress meant the law to accomplish.

But the plaintiffs are mistaken. It’s not irrelevant that a ruling in their favor would inflict such damage. To the contrary, that fact helps us correctly interpret the statute’s text. Indeed, it shows that the plaintiffs’ understanding of that text is wrong.

That an argument this embarrassing and with such disastrous consequences has gotten this far tells you all you need to know about 21st century American politics.

Pretending to Have a Plan is a Kind of Plan, But Not a Plan to Insure People

[ 132 ] March 2, 2015 |


I think it’s obvious that the response of federal Republicans and the vast majority of state Republicans should the Supreme Court willfully misread the law and wreck the majority of state exchanges would be “nothing.” As I mentioned last week, Jon Chait disagrees, saying that “Congress probably would be forced to act, and if it fails, many or most states would capitulate very quickly.” He cites this report from Byron York as evidence.

But as evidence that the Republicans will mitigate the damage, this couldn’t be weaker. The piece has to be evaluated in light of the obvious agenda that both York and the people using him have: to game the Court by pretending that siding with the Troofers wouldn’t really do any harm, and to set up to blame Obama for the damage inflicted by Republicans in the judicial and legislative branches. This agenda wouldn’t matter if York had the goods, but he doesn’t. The giveaway is Barrasso’s comment that “[w]e’re not going to help the law, but we’re going to help the people, so they are not left in the lurch.” If you’re not willing to help the law, then people are going to get left in the lurch and people are going to get hurt. And there’s no question about how congressional Republicans are going to resolve this tradeoff.

And just in case there was any doubt, Barrasso, Hatch and Lamar! have an op-ed that makes it as clear as can be that the “plan” is to pretend to have a plan. This is the most they’re willing to pretend to be willing to pass:

We would provide financial assistance to help Americans keep the coverage they picked for a transitional period. It would be unfair to allow families to lose their coverage, particularly in the middle of the year.

So, at most, people will get to keep their subsidies until their policy comes up for renewal, at which point the figurative death spirals and the literal deaths will start. The B/H/! plan deals with that with the typical Republican non-proposals: i.e. deregulating state insurance markets. This alternative is abysmal on the policy merits, but it’s beside the point. Republicans wouldn’t pass it, because let-them-eat-state’s-rights works a lot better as rhetoric than as policy put into practice, and in an alternate universe where the GOP would pass it Obama wouldn’t sign it.

And I don’t think there’s even much of a chance that Republicans could even pass a temporary extension. As Kilgore says, the ridiculous inability of Republicans to get the DHS founded should really give away the show here. You could also consider the Republican House immigration meltdown in 2013. Immigration reform has much broader interest-based and ideological support within the party than the insurance tax credits, the level of opposition is not as intense, the political benefits of passing something clear, and they couldn’t pass anything. You think House Republicans are going to put their political careers on the line to “save Obamacare”? Please. It’s not happening. If the Court reverses King v. Burwell, the only question is the scope of the disaster.

There Is No Constitutional Obligation to Listen to Speeches

[ 169 ] March 2, 2015 |


Imagine Alan Dershowitz wrote an op-ed demanding that every last Democrat attend Benjamin Netanyahu’s speech before Congress.  Now imagine that it’s even dumber than you expected.  Not easy, I know.  Amazingly, you’re still underestimating how dumb it is:

As a liberal Democrat who twice campaigned for President Barack Obama

One line in and virtually any chance of a decent argument is gone. He doesn’t even have the decency to throw in an apocryphal cocktail party.

I am appalled that some Democratic members of Congress are planning to boycott the speech of Israeli Prime Minister Benjamin Netanyahu on March 3 to a joint session of Congress. At bottom, this controversy is not mainly about protocol and politics—it is about the constitutional system of checks and balances and the separation of powers.

Right — it’s not about Dershowitz’s substantive belief in the near-infallibility of the Israeli state. It’s about neutral principles of constitutional law. That sounds plausible!

Under the Constitution, the executive and legislative branches share responsibility for making and implementing important foreign-policy decisions. Congress has a critical role to play in scrutinizing the decisions of the president when these decisions involve national security, relationships with allies and the threat of nuclear proliferation.

It’s nice that Dershowitz is taking advantage of his emeritus status to re-read some junior high civics textbooks. Alas, none of these trusims bears the slightest relevance to the question of whether members of Congress are obligated to attend the speech of a public official they believe is trying to undermine American foreign policy.

Congress has every right to invite, even over the president’s strong objection, any world leader or international expert who can assist its members in formulating appropriate responses to the current deal being considered with Iran regarding its nuclear-weapons program.

Are we going to get to points that are actually in any dispute at some point?

Indeed, it is the responsibility of every member of Congress to listen to Prime Minister Netanyahu

Finally! Alas, once we leave banality we leave defensibility.

What the president objects to is not that Mr. Netanyahu will speak to Congress, but the content of what he intends to say. This constitutes a direct intrusion on the power of Congress and on the constitutional separation of powers.

Not only should all members of Congress attend Mr. Netanyahu’s speech, but President Obama—as a constitutional scholar—should urge members of Congress to do their constitutional duty of listening to opposing views in order to check and balance the policies of the administration.

This is absolutely insane. Congress has the authority to invite speakers. Individual members of Congress can support the choice of speaker and the content of the speaker’s message. The president can object to the choice of speaker and the content of the speaker’s message. Individual members of Congress can object to the choice of speaker and the content of the speakers message, and express this view by not attending. Members of Congress have no explicit or implicit constitutional “obligation” to listen to any particular speaker. There is absolutely no “intrusion” on congressional (or presidential) powers going on here. There are public officials expressing opposing views.

By the way, if members of Congress has an obligation to “listen to opposing views,” does Congress also have an obligation to invite a political leader who is critical of Israeli policy? All previous evidence suggests Dershowitz will forget his “principle” that all views must be presented within a given forum as soon as the alternative view differs from his.

Fortunately — after reiterating his banal and irrelevant assertions that Congress has authority over some aspects of foreign policy — Dershowitz can’t even get through the op-ed without making it clear that he doesn’t believe his own bullshit:

One should walk out on tyrants, bigots and radical extremists, as the United States did when Iran’s Mahmoud Ahmadinejad denied the Holocaust and called for Israel’s destruction at the United Nations.

So one has a solemn obligation to listen to a foreign leader’s views unless Alan Dershowitz finds them particularly objectionable. This is, in its own way, a kind of “principle,” but it has nothing to do with free speech or checks and balances or the separation of powers.

Is the NCAA Cartel Defensible? (SPOILER: No.)

[ 130 ] March 1, 2015 |

Paul’s thread yesterday contained some defenses of the exploitation of athletes by NCAA rules.  These defenses were, of course, rife with factual errors, non-sequiturs, and transparent illogic because all defenses of the NCAA cartel are. 

But there are also a lot of good comments, and I think this point by Pseudonym is particularly important:

The real question at issue isn’t whether they should be compensated but whether they should be barred from being compensated, and by a national cartel with a monopoly on the path to professional status.

Apologists for the NCAA cartel tend to assume that they’re advocating for athletes being treated like other students. But this is completely untrue. What they’re defending is in fact a set of unique and extraordinary burdens being placed on athletes. Virtually no other students are banned from receiving compensation from voluntary third parties, and this is because it won’t make a lick of sense. Why on earth shouldn’t a music student be able to take a paying gig or a journalism student sell a story? Similarly, we don’t claim that scholarship students working as RAs or in the bookstore can’t be compensated, or that staff and faculty who get tuition vouchers for family members don’t need to be additionally compensated for their work. These rules aren’t about ensuring that athletes are “really” students or whatever; they’re about attempting to preserve competitive balance. And this isn’t a good reason to allow athletes to be exploited, even before we get to the fact that the NCAA doesn’t have anything remotely resembling competitive balance even with these rules.

Like most NCAA critics, I’m not arguing that student-athletes are employees subject to minimum wage laws solely for being members of teams. I’m saying that if either colleges or third parties want to pay them market value for their services, they should not forbidden from making the deals. This allows us to quickly dispense with non-sequiturs about the cross-country team or (even sillier) the Dungeons&Dragons club. Most athletic events and intramural activities don’t produce any revenue, so there’s not going to be any money for the participants beyond scholarship money, and that’s fine with me. There might be some cases in which a rich donor really wants an alma mater to have a great cross-country team and offers recruits cash on the barrelhead. And that’s fine with me — I don’t see why donors can give money to universities that enable them to hire a new Associate Vice Provost and Assistant Under Dean For Proactive Strategic Dynamism but should be prohibited from giving money to athletes directly.

Finally, defenses of the NCAA tend to be rife with a rhetorical technique we’ve discussed recently: someone with an indefensible position changing the subject to an allegedly superior alternative that isn’t actually on offer. The obvious problem for NCAA apologists that Paul’s post raises is why athletes should be forbidden cash compensation — not only by universities but by third parties — because of the Noble Ideals of Amateurism and the Sanctity of the Groves of Academe while everybody else involved with the NCAA is allowed to fill up wheelbarrows full of cash and deposit them in university-provided cars and drive off to get a university-provided oil change. One answer is to say that all of the other NCAA-related profit-taking should be stopped. The obvious problem is that it’s not going to be, and in the meantime we have to treat athletes based on the system as it is. If coaches start getting paid like associate professors of English and the NCAA gives its games to networks for free while banning advertising and ticket prices are capped at $10, we can talk about whether scholarships are adequate compensation. (We still don’t need to talk about bans on third party compensation, because these are just terrible policy under any possible system of college athletics.) Until then, players should not be forbidden from getting any compensation they’re able to negotiate.

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