A Two For: Thoughts on Trump v. Slaughter and How the Latest NCAA D1 Eligibility Rule Discriminates Against Persons with Disabilities

Hope everyone had a great Fourth of July weekend. I wrote this blog entry while taking a break between watching World Cup games and Wimbledon over the weekend. It’s been a tremendous World Cup and Wimbledon. Also, this month is disability pride month. I recognize being disabled proud isn’t always easy and often depends on the particular disability and even when a person becomes a person with a disability. That said, I am proud to be disability proud.

I thought I would put up a short blog talking about questions raised by a recent United States Supreme Court decision in Trump v. Slaughter. Also, as everyone knows, I have been involved in the intersection of disability rights and sports since the very first edition of my Understanding the ADA book being published back in 2000. The new eligibility rule put out by the NCAA for D1 athletes raises all kinds of disability rights issues. So, I wanted to discuss that as well. Accordingly, the blog entry is divided into two categories and they are: questions raised by Trump v. Slaughter; and why the new NCAA five-year eligibility rule is terribly problematic for persons with disabilities and most likely violates the ADA and the Rehabilitation Act by way of the applicability of various final implementing ADA and §504 (Rehabilitation Act), regulations.

I

Questions raised by Trump v. Slaughter, which can be found here.

1. In this case, the Supreme Court held that commissioners of independent executive agencies are subject to at will termination by the president of the United States. Justice Gorsuch wrote an interesting opinion agreeing with the result but saying all kinds of things in the future are going to have to be worked out. I have a few of my own questions as well, described below.
2. What does the decision mean for the EEOC? It also has a group of commissioners. The statute also talks about how the commissioners must be split among the two parties. All commissioners are confirmed by the United States Senate. It’s hard to read Slaughter in any way except to say that the EEOC commissioners are terminable at will by the president. What does that mean? First, if the EEOC commissioners are terminable at will by the president, does that mean that the president is free to ignore any statutory provisions when it comes to suggesting who should be an EEOC Commissioner? If not, what is there to prevent a president from appointing a member of a political party that is not theirs and then promptly firing them once the Senate confirms them? As far as I can tell, nothing would prevent that approach even though it would bring serious questions about operating without a quorum of commissioners.
3. Will the commissioners of independent executive agencies be expected to resign every four years. That is, despite what the statute says their term is, in light of Slaughter, it seems perfectly reasonable to expect that whenever a new president takes office that all commissioners submit their resignation, particularly those of a different party.
4. What is the implication for federal judges who are parts of executive agencies? Are immigration judges and Social Security judges subject to firing at will by the president? The decision doesn’t address this question, but look for this question to come down the tracks soon. Will this lead to a push for executive agency judges to become Title III judges? I know there has been a push for several years now for that to happen in some quarters. I am a bit ambivalent about that push because judges and litigants would lose disability rights protections they currently have (federal judges working for executive agencies are protected by §501 of the Rehabilitation Act. Litigants dealing with executive agency judges are protected under §504 of the Rehabilitation Act. However, federal judges not part of executive agencies are neither subject to the ADA nor to the Rehabilitation Act).
5. Justice Gorsuch’s opinion is such that it might be more accurate to say the decision was a 5-1-3 decision.
6. I have read a few articles discussing this decision saying that this decision may have much wider implications internationally than people realize. For example, while I can’t pinpoint exactly where I read it, I have read articles saying the Slaughter decision is going to be terribly problematic in the EU when it comes to digital privacy because of provisions saying that the EU can only share data with countries that have independent agencies over digital privacy. Slaughter definitely calls into question whether the agency would be independent as viewed by the EU.
7. Only thing we can say for sure, is the implications of Slaughter are going to be numerous and at times unexpected.

II

Why the NCAA Five-Year Eligibility Rule Is Terribly Problematic for Persons with Disabilities and Most Likely Violates the ADA and the Rehabilitation Act

1. The NCAA is changing their eligibility rules effective 2026-27 academic year, here.
2. A D1 athlete will have five years of eligibility.
3. The five-year period starts when the student athlete first enrolls full-time and attends classes at any college or university, including a domestic institution, international institution, or junior college.
4. The start of the regular academic year immediately following the student-athlete’s 19^th birthday, if the student-athlete turns 19 years old before September 1 is when the five-year eligibility period begins. For an individual who turns 19 years old on or after September 1, the period of eligibility begins at the start of the subsequent academic year, unless the individual enrolled full-time in college earlier.
5. Once the five-year period starts, it runs continuously. It does not pause because a student athlete does not compete, transfers, sits out, changes teams, or takes time away from the participation, meaning student-athletes, coaches, and athletic department no longer have to track athletic redshirts.
6. No more medical hardship waivers.
7. No more redshirt rules.
8. Pregnancy and military service may suspend the eligibility period.
9. The NCAA is arguably a service establishment under 42 U.S.C. §12181(7)(F).
10. A person having to miss athletic eligibility because of an injury would most certainly have a disability as defined by the ADA. Remember, after the amendments to the ADA, a temporary disability may be a covered disability where it substantially limits a major life activity.
11. 28 C.F.R. §36.202(a), Denial of participation: states, “A public accommodation shall not subject an individual or class of individuals on the basis of a disability or disabilities of such individual or class, directly, or through contractual, licensing, or other arrangements, to a denial of the opportunity of the individual or class to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation.”
12. 28 C.F.R. §36.202(b), Participation in unequal benefit: states, “A public accommodation shall not afford an individual or class of individuals, on the basis of a disability or disabilities of such individual or class, directly, or through contractual, licensing, or other arrangements, with the opportunity to participate in or benefit from a good, service, facility, privilege, advantage, or accommodation that is not equal to that afforded to other individuals.”
13. 28 C.F.R. § 36.204 Administrative methods: states, “A public accommodation shall not, directly or through contractual or other arrangements, utilize standards or criteria or methods of administration that have the effect of discriminating on the basis of disability, or that perpetuate the discrimination of others who are subject to common administrative control.” (Arguably, the set up of the D1 athlete and the NCAA creates a strong argument of common administrative control by the university or college).
14. 34 C.F.R. § 104.43 Treatment of students; general: states, “(a) No qualified handicapped student shall, on the basis of handicap, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any academic, research, occupational training, housing, health insurance, counseling, financial aid, physical education, athletics (emphasis mine), recreation, transportation, other extracurricular, or other postsecondary education aid, benefits, or services to which this subpart applies.”
15. 34 C.F.R. § 104.47(a)(1). Nonacademic services. States, “(a) Physical education and athletics. (1) In providing physical education courses and athletics and similar aid, benefits, or services to any of its students, a recipient to which this subpart applies may not discriminate on the basis of handicap. A recipient that offers physical education courses or that operates or sponsors intercollegiate (emphasis mine), club, or intramural athletics shall provide to qualified handicapped students an equal opportunity for participation in these activities.
16. The final regulations found in Title 28 of the C.F.R. are final implementing regulations for Title III of the ADA, while the final regulations found in Title 34 of the C.F.R. mentioned in this blog entry are final implementing regulations for §504 of the Rehabilitation Act for post-secondary institutions. Since just about every college or university takes federal funds, a college or university is subject to both the ADA (Title II if public, and Title III per 42 U.S.C. §12181(7)(J) if a private entity), and to the Rehabilitation Act.
17. Class actions, as we have discussed in this blog numerous times, such as here, involving persons with disabilities are hard to pull off. Nevertheless, I could see a class action challenging the omission of disability from the eligibility rule as a violation of the ADA and the Rehabilitation Act in 1973 from any of the following individuals: anybody who has to sit out next year due to an injury, such as an ACL tear for example; any athlete suffering a season-ending injury in the future, which would be about any D1 athlete; or any athlete with a flareup of an existing disability causing them to miss a season.
18. It is a bit strange to me that the NCAA talks about accommodating pregnancy but not disability when the whole theory of accommodating pregnancy in the first place emanated from accommodating disabilities.
19. What these new eligibility rules essentially say is the following: if you are a person without a disability and do not become disabled during your eligibility period, you get five years of eligibility. If you are a person who becomes a person with a disability during your eligibility period causing you to miss a season, that’s just too bad. If you are a person who becomes pregnant, then you have a shot of completing all five years of your eligibility period. None of this makes any sense, and as detailed above, quite possibly violates both the ADA and the Rehabilitation Act.