Canada Hockey, L.L.C., dba Epic Sports, et al. v. Texas A&M University Athletic Department, et al.

After this Court’s decision in Allen v. Cooper, 140 S. Ct. 994 (2020), damages remedies for copyright infringements by state governments depend on either showing an actual constitutional violation (as well as a statutory one) under United States v. Georgia, 546 U.S. 151 (2006), or—perhaps—asserting a free-standing takings claim under the Fifth and Fourteenth Amendments. The Fifth Circuit’s categorical rejection of both these avenues in this case raises three questions:

1. Can copyright infringement constitute an actual constitutional violation on a takings theory or, as the Fifth Circuit held, is infringement never a taking?

2. Is a hypothetical state remedy that state courts have never recognized sufficiently “clear and certain,” Nat’l Private Truck Council, Inc. v. Oklahoma Tax Comm’n, 515 U.S. 582, 587 (1995), to prevent an actual due process violation?

3. Does state sovereign immunity bar takings claims altogether, notwithstanding this Court’s holding in Knick v. Township of Scott, 139 S. Ct. 2162 (2019), that the Takings Clause mandates a compensatory remedy in federal court?