okay well thank you for coming out I it looks like somebody might have told some of you that we were having a Duke basketball game here I mean this is a pretty spectacular turnout for a program and particularly Saturday morning before lunch but we're very happy to see all of you here we have a just a first-rate panel to talk about these issues relating to sports I and I in universities I this is a very interesting time for college athletics a lot of issues confronting universities and the athletic programs and we're going to talk about some of those we have only an hour so I'm going to make a very brief introduction about panelists and then we're going to we're going to start right away our hope is that we're going to have allow actually not our hope we're going to have sufficient time at the conclusion of brief presentations I to take questions from you to see what it is that you're concerned about I and to I to get the reaction of our panelists so let me introduce them very quickly I except for Paul Hagen and myself all of these are at least double dukey's and one is a triple Dukey so they are very familiar with the with the University I Jay Bilas you all know I'm sure is a double Dookie graduated from the law school he's an ESPN college basketball analyst who one of the best and is of counsel to the Charlotte law firm of Moore and Van Allen this is a truncated introduction I I assure you that they have pages of accomplishments so tell them which will read to you later we'll see how many of you come come out for that Robin Harris who is also a double Dukey law 93 she's the executive director of the Ivy League she'll tell you what that is Gabe Feldman is an associate professor of law and the director of the Tulane Sports Law Program and the associate provost for Tulane for a nc2 a compliance a very big job and then Paul Hagen whom you know you know he's a professor of law here and co-director of the Center for sports law and policy so what we're going to talk about is some of the issues that are confronting college athletics today some of which could be I gained changers in a real sense and we had a very interesting discussion before coming up here Michael dr. Mann told us not to leave it all on the practice field so we cut it off and who we are we're going to start with Paul I who is going to sort of do the set up for this discussion and provide the context in which some of these issues are going to be discussed I'm gonna start with a historical perspective on this and it was just under a century ago in nineteen five that President Roosevelt called the great football powers of the United States Yale Harvard and Princeton to the white house to try to address a crisis of legitimacy in the sport an unacceptable number of football players were being maimed and and the sport appeared to be encouraging forms of brutality inconsistent with the values and norms of higher education things came to him to a head at the Harvard Yale football game in nineteen Galle punted the ball to to Harvard and Francis Burr attempted unsuccessfully to field it he according to the New York Times he was unsuccessful because as the ball was fluttering down Jim quill from Yale punched him in the face and an unnamed Yale player delivered a flying kick to his MiG's ik midsection rendering him unconscious and unable to continue now Yale denied that there had been rough play and no foul was called and no foul was called because those were not fouls gentlemen of course would not do such things but the social conventions regulating sporting behavior were breaking down and that breakdown demanded some sort of a response now we are in one of those periods in which social consensus around intercollegiate sports is once again breaking down and we are seeing increasingly strident demands for new terms of competition that will restore legitimacy to the exercise now the response in nineteen five six was a comprehensive and increasingly intrusive form of regulation and it's the form of regulation we see today there are now suggestions that we have new forms of legal or other forms of regulation to replace this some of them I think are interesting at a time when unionization of Labor is being abandoned right across the country we just saw the the Auto Workers in Tennessee reject collective bargaining we're getting the demand for the unionization of intercollegiate athletes and what I am hoping today we're going to get from this very really quite extraordinary group of Duke trained lawyers all of whom pointed out that they were not trained by either Jim or me which is perhaps why they're extraordinary but as they think through what are the appropriate legal responses that will help us restore legitimacy a sense of social legitimacy and an effective set of controls for sport which is built around controlled competition so I Robin is going to to address the mission of college athletics in and more specifically the education of college athletes thanks so back when I was in Duke law school and I was working on my law review article which was sports related on the Jerry Tarkanian case that went to the Supreme Court and I was assessing whether the Supreme Court had decided the NCAA was not a state actor and did not have to provide due process in the enforcement procedures so I wanted to analyze whether or not they in fact did provide due process and thereupon I embarked upon a journey that I'm still going and it has led me to my career are truly because I learned so much about the NCA process I did in fact conclude that the NCAA generally provided due process throughout the enforcement procedures except in a couple of areas where there was good basis to not provide open hearings or cross-examination of witnesses and but it was interesting because that led me to read a multitude of cases that had been in the courts about the NCA process and the amateurism status of the NCAA and the fact that participating in college athletics is not a right it's not a right it's a privilege and those are legal terminologies that really were granted we're help for my philosophy on how we approach this endeavor which is collegiate athletics and courts have over time upheld NCAA restrictions as being code pro-competitive because of the overall stature of athletics as being part of the educational experience of the student-athletes and so you really have to look at what is the mission of intercollegiate athletics now the money today is so much greater than it was 20 plus years ago when I was doing my larva research but the fundamentals for 98 percent of what we're about is exactly the same that the multi to the vast majority of sports we're not talking about the same revenue that we're talking about in a small minority of football programs about 65 football programs are generating the revenues that create the headlines and in basketball it is most of Division one it is an overall enterprise it generates revenue but it's it needs to be tied to the educational model have we lost our way in some aspects yes I think we have is the money to a point that it's become a barometer for criticism and a lightning rod yes absolutely can we put the genie back in the bottle and go back to where you know the money is not such a lightning rod probably not so now we have to figure out where we are and what changes do we want to talk about the fact that student-athletes devote a lot of time to their sports is generated it's self generated by the student-athletes often it's also generated by the coach and the expectations and it's generated by their teammates as well and so in the Ivy League for example where we put more limitations on student athlete time demands than what the NCAA allows at Division 1 we still have student athletes conducting captain's practices which are sometimes against our rules sometimes they're not and we can't lock them in their rooms though so the fact is when you have individuals that want to compete at the highest level they in fact want to play they also want to do it I think the majority want to do it as part of their educational experience and in fact the NCA used to have a tag line which I don't know why they dropped because I think it's true and it's that most of them most of the student athletes are going pro in something other than sports we are truly preparing individuals for success in life through an educational experience in the classroom but also on the playing fields in the courts and in doing so what is the value that's being brought to the universities well it's a sense of campus community how often do you run into Duke alums who want immediately talk about the success of the basketball team or the football team or the lacrosse team it's a tremendous bonding experience for the community and it makes me proud to be associated with the university that I think does it the right way that is integrating athletics with the campus environment have things changed over the past couple of decades absolutely but they've changed they've been regularly changing in the past 100 years with intercollegiate athletics so it becomes harder to justify I used to be it used to be easier to say well the student athletes are getting an education at a place like Duke that's worth a couple of hundred thousand dollars just in terms of the educational cost and they're getting the benefits of a wonderful education well as coaches are making millions of dollars it's harder to balance that and to say your education worth a couple of hundred thousand is worth is comparable to what your coaches are getting or the schools getting as they bring in the millions but for most of our student athletes that is true it's still a true comparison they are getting if they're taking advantage of the educational opportunities provided they are really able to go on and succeed in life through what they learned in the classroom as well as on the playing fields now we have issues there's no question about it the MBA has a rule that it's a collective bargaining rule with one in Duns and so we have situations where players are being forced to come to college if they want to have a professional career they don't have another good option they could go to the NBA Developmental League they could go to Europe but generally we are forcing students in we are forcing people some of whom I hope becomes students but not all do right so they come and they have to come for one year and they have to stay eligible that first semester and then they don't have to be eligible the second semester they don't even have to go to class really now the school pays a penalty there's a metric that measures that but they can overcome that if they manage the numbers and have enough other players to maintain their eligibility so I think that's a problem that's not a problem of the NCAA is doing and I don't fault the student-athletes either I think they're doing what they have to do baseball interesting baseball has a model where you can get drafted right out of high school but once you go to college you can't get drafted for three years baseball has the highest number of NCAA players who go on to a professional career that may be because they also have a legitimate minor-league system but about 9% of NCAA players go on to a major league career its 1% in football in basketball so what we're really doing is spending the majority of our time and energy dealing with these very challenging issues talking about a couple of percentage of our student athletes when I would tell you the overall enterprise is still very legitimately part of the collegiate environment at the Division one level and certainly if you look at the other two divisions we have over a thousand NCAA member schools and then you have NAIA schools that sponsor athletics as well so and the sense of community really shouldn't be lost it's and the revenue that is generated does go back to support other sports so you have a school like Duke and where they've just announced an initiative to add softball and to fully fund other programs like rowing and I think that's tremendous and and Duke should be recognized there are other Division one programs that are basically at the bare minimum of NCAA sports because they're putting their money into football and basketball and I think we should look at those programs that if you believe in our model and you believe in the collegiate athletic experience then you should believe in it for a wide variety of sports and not just a handful thank you so Gabe is gonna talk about some of the litigation challenges that are confronting the NC to a college athletics okay thanks Jim and I think this is gonna be a slight detour from what Robin just said and I think Jay will then probably join the issue with Robin it seemed like it was having trouble controlling himself and not responding so pardon the illegal interruption here but let me just spend a few minutes giving an overview of the litigation facing the n-c-double-a and there was a quote Mark Emmert gave the president of the n-c-double-a I think it was last week where we said if we're not getting sued the NCAA we're not doing anything and what's clear is that they're doing a lot I'm not sure I agree with mark on that boys their last count I think there were about 20 different lawsuits facing the inside Llewyn I want to really focus on what I would consider the four big ones and then the unionization effort which which is not technically a lawsuit let me start with the unionization effort as we probably all know the Northwestern College football players petitioning the NLRB to be recognized as employees so they could form a union and collectively bargain with Northwestern and the Regional Director in Chicago ruled just recently that the scholarship college football players at Northwestern should be considered employees because you know this is going to be oversimplified they provide valuable services to Northwestern for compensation and are within control of the coaches at Northwestern and then by definition they should be considered employees not surprisingly Northwestern disagreed they just recently filed a petition of appeal to the full national labor relations board the northwestern college football players will vote to unionize or not unionize on April 25th and the results of that vote will be kept secret until the full board rules on whether or not they should be cleared employees or not after that what likely will happen is the case will be appealed either to district court in DC or District Court in Illinois and then up to the Seventh Circuit or DC Circuit and then potentially all the way up to the Supreme Court potential so that's hanging out there obviously as as one potential leverage shifter then we've got the lawsuits that are facing the instability the the big lawsuits that are facing the answer the way one is the concussion litigation which hasn't really been discussed much lately it in some ways mirrors the NFL litigation concussion litigation some of the similar arguments have been made here what's interesting about the you can edit the n-c-double-a concussion litigation think we've got now 71 plaintiffs out there and 69 of them are football players – or non football players but most of the 69 football players are football players who never played in the NFL which was an attempt to say we don't have to prove that the damage occurred when we were playing college as opposed to the NFL because we never played in the NFL what it looks like is that's most likely headed for settlement I don't think that's what the NCAA has been talking abouts what the plaintiffs attorneys have been talking about the bigger cases that may in fact not be headed for settlement and present potentially the bigger risk to the n-c-double-a and the structure of the n-c-double-a in the future of college sports in the 2% of college sports we're talking about now big-time college basketball big-time college football we've got the O'Bannon litigation which has been out there now for for several years which started as former student student-athletes excuse me claiming that they were entitled to compensation for the use of their likeness in video games and as since evolved or devolve depending on your perspective into all student athletes claiming that they're not only entitled to compensation for use of their name and likeness in video games but also for use of their name likeness in televised games and what that lawsuit is now seeking is a share of television revenue so these student athletes are now seeking a share of the billions of dollars that the NCAA and the conference's and the schools make from televising college football college basketball games if successful and that that claim is brought on both antitrust grounds and right of publicity grounds if successful that may not change anything about the way we view college sports but it will shift revenue from where it is now in the hands of the administrators the institutions to schools and shift at least some of it towards the student-athletes that's a potential ramification there which again shifting revenue maybe not changing the way the sports are played the way the sports look the last two lawsuits in the most recent lawsuits are two men I trust suits filed one by Shawn Alston who is a West Virginia running back and the other filed by and it's amazing this is how it's referred to in popular press filed by jeff kessler i don't know how many i don't know how many lawsuits are known by the attorney who's bringing the suit as opposed to the party in this suit but for better or worse it's the jeff kessler lawsuit that is challenging the very basis of NC double-a college athletics and the amateurism model the challenge there is in contrast to the way Robin just described college athletics this view of college athletics is it's a billion dollar industry where the product is defined by a vast price-fixing conspiracy all of the institutions have gotten together and say we refuse to pay our whether they're employees whether they're our inputs whether they're student-athletes whatever you want to call them we refuse to pay them we will not allow you to pay them more than a scholarship more than whatever their grant-in-aid level is the argument there is that that is clearly a price-fixing violation that if any other industry try to pull that off outside of a collective bargaining relationship it would be probably per se illegal Google and Apple are getting sued right now in a very similar type claim they that will be if not held to be per se illegal will help to be illegal as long as they can prove they're doing it there's no question they're doing it this is not an issue of proof we have the agreement we know what the agreement says question is is that agreement legal so we've got these four lawsuits the unionization effort hanging out there and the big question I think on a lot of people's minds is will this actually cause any any change and people seem to think that we're at the tipping point we're finally at the tipping point we will see a revolutionary change in college sports I'm not sure we're there it'll be quick do I still have time you're good okay I'm not sure we're there for two reasons we may be there but but I just want to hit pause a little bit or pump the brakes a little bit for two reasons one is we've been saying since probably 1906 that were at the tipping point for college athletics we didn't have the term tipping point in 1906 but if we had it we'd be saying that in 1929 in a Carnegie report the president the Carnegie Foundation said that paraphrase a I'm quoting cuz you don't know the quote so it's not like it's exactly that the spur of commercialism in college athletics is eroding and threatening to destroy the educational and moral institution something along those lines in 1929 in 1984 this is getting back to tarkanian case we talk about all the criticism the n-c-double-a it takes now in 1984 a federal judge compared the NCAA to the Ayatollah and Adolph Eichmann both of whom objected to that so the the criticism isn't new the criticism is a new question is do we have enough leverage now on the side of the student-athletes to actually force some change so will these lawsuits provide that leverage will the courts look at it the way that I think many people not all people look at it that we've got these billion dollar industry where everybody is making money lots of people are making my none everybody a lot of people are making money except the student athletes except the student athletes and there's an unfairness and is that unfairness enough to change the way the law has operated because for decades century the courts have said the n-c-double-a I'm the member institutions are allowed to pursue this noble goal of amateurism for the sake of amateurism that these antitrust suits that have been brought in the past the 1984 the border regions case establishes precedent that n-c-double-a the institutions do not have to pay student athletes because that defines them an amateur as amateurs that defines the institution that allows them to focus on education and we can say that is an old notion nobody believes in that anymore and many people might believe that that's outdated and that the billions of dollars have infected the entire enterprise and it's not about amateurism it's not about educational ideals we may think that's right some people may disagree but let me tell you what for courts very quickly have said on that issue the Sixth Circuit and the Eighth Circuit the Sixth Circuit and the Third Circuit in 1998 and 2008 looking at amateurs and restrictions didn't even look to see if that claim was still true if amateurism was still a noble goal didn't look at the merits just said that scholarships payment to student athletes is non-commercial the Sherman Act does not apply at all we have this billion-dollar commercialized industry to circuit courts who said it's not commercial no antitrust suit can be brought at all 2013 the Seventh Circuit Seventh Circuit which is where this NLRB appeal might end up for the northwestern appeal might end up said it is still good law amateurism is still a noble goal even though we recognize as student athletes are receiving compensation and form of scholarship they are paid but because they're only being paid their cost of attendance we're not even quite there cost of attendance we don't consider them to be paid so they're paid but they're not paid and because they're not paid they're amateurs even though they are paid but because they're not paid they're amateurs and because they're amateurs antitrust law does not apply in any rule that furthers amateurism is inherently legal inherently legal don't even have to analyze it under antitrust law that was last year that the Seventh Circuit Court of Appeals said that so we may be at the tipping point we may be at whatever state something's got to give might be there just want to throw a little hesitation into all this urgency and say we may not be there yet and it may take more than just these legal threats to get us there and and I think now well Jim but but to get to whether it's right or wrong a very different issue I'm just talking about the legal threats out there Jay we'll be happy to discuss that whether whether we should wait to see what happens in the courts or whether the universities or to move forward on their own my perspective let me just give you a few things to think about our money and education mutually exclusive and my contention is they are not that no other student in fact no other person in a in a college setting is restricted that everyone every student at this university at every university can get their fair market values except for an athlete and this is a multi-billion dollar business that we're talking about college athletics and the only person involved in that industry is subject to what I would call a cartel restriction that's industry-wide and they are restricted to their expenses only and one of the expenses is the expense of a scholarship that is paid to the school by the school so really the school is not out of nickel the athletic department claims poverty when they're paying the school the scholarship amount and I've joked about this that if the entity the answer Double A when I was in college college athletics was just you know back when it was just a in the hundreds of revenues were in the hundreds of millions now they're in the in the billions I think it's 11 but it's approximated 11 billion dollars per year in revenues the n-c-double-a said well there's not enough money back then and that when is just the hundreds of millions that's the same refrain you hear now there's not enough money to give to the athletes so you could say that if the n-c-double-a were in charge of the Sahara Desert there wouldn't be enough sand and it also assumes that this is a zero-sum game that if the athletes were allowed more than a scholarship then all these sports would have to go away and use so basically what they say is everything teeters upon the athlete remaining amateur that if we have to give the athlete more than a scholarship or if we even have the opportunity to give more than a scholarship sports are gonna go we hear the doomsday scenarios sports are gonna go away you're gonna see all these non-revenue sports go away you are going to see this entire enterprise collapse under its own weight and there's no basis for any of this my contention is that these are already pro sports and if we provide if yes definitely talks all the time about permissive legislation which makes it sound like the athletes are children that we're gonna provide maybe a little increase in their allowance and I don't look at it that way I think the athletes have greater value then we allow they have greater value than we admit and to Robin's point about the community aspect of college athletics I agree there's there's wonderful community aspect but that goes to the idea that the community is the ticket buying public and we all gather here on campus and we talk about how great this is and we get together and we say hey let's support all this stuff it's terrific or you know old state you I don't think it really goes to selling the product to television where the consumers of the product are have no connection to the universities whatsoever and they're just watching the competition and that's where we are now and that's why it's a multi-billion dollar industry is we've gone outside of this of what we claim it has been and now it's a commercial product and it has been for a long time mean the n-c-double-a was founded in scandal in 1906 it's remained in scandal ever since and most of the scandals are self-made by rules which I would argue don't make a whole lot of sense I am of the belief that if the restrictions on providing athletes with more than scholarship were taken away and athletes could be treated like any other student and any other person the world would remain firmly on its axis and the business would be just fine right now these athletes are not brought in from the stood they're not chosen among the student body and put on a team they are brought from outside and recruited as athletes first that's okay like when I when you see that we just got off the n-c-double-a tournament no how many of you watch the the press conferences but the press conferences are great there is a moderator of the press conference the coach sits sits next to the moderator and then and then the players and first up they say are there any questions for the student-athletes and they always refer to him as a student athletes and they get to be asked their questions first so that they can leave as if they're going to go to the library after that but the constant the constant term of student-athletes student-athlete is it almost is offensive to me that I didn't look at myself when I sound on that podium 30 years ago answering questions as a student-athlete I was a player you know they can't they just say questions for the players and they can't they won't because student athlete is a made-up term that the NCAA came up with years ago to try to avoid workers compensation claims and they it's now become part of the lexicon and it's used all the time when I didn't look at myself that way I was a student in class and I was an athlete when I was on the court you know I didn't I didn't we don't use that term with regard to anybody else in college life we don't say yes the student thespian in the back what you have a question we don't do that and it's okay it's okay for for students to pursue other interests but this is a this is a multi-billion dollar business it's a commercial enterprise it is not a mature the only thing a mature that I know of in America's Gulf and the Gulf amateur golfers decide when they practice if they practice and they decide if they're gonna play I can promise you when I was here I did not determine when I practice nor did I determine the volume of practice but we were we were essentially professionals and that's okay because you could be a professional athlete and be a student and you know how I know that because it's been proven there are professional baseball players that currently play and have for years college sports they play professional baseball players play college football college basketball right now and nobody says a word nobody says get those dirty professionals away from my amateurs it's legal nobody says work Trajan Langdon was a professional baseball player while he was here nobody said work nobody said well yeah it's antithetical of what college sports are all about keep him away from our amateurs he might infect them with his professionalism that was never said but if somehow if we allow the players but if we allow them to take advantage of their commercial opportunities outside of outside of school that's a no-no that then we're on the slippery slope you know God forbid we'd be carrying Pandora's Box down this slippery slope what would happen because if we allowed them commercial opportunities then somebody says it's kind of like the the rule that you can't give a kid more than a bagel in the morning if you gave more than a bagel then somebody give them a bagel shop it just it goes to this crazy doomsday scenario stuff and that's not the way the free market works just fine for the rest of us works just fine for the rest of us and we act like it wouldn't work for college athletes and it would if if this would be the last thing I say on this if you if we had a free market system tomorrow and Coach K could go recruit Jabari Parker and could provide Duke could provide Jabari Parker with whatever they wanted though the the natural probable consequence of that is they'd insist on a contract and they'd say Jabari we think you'd be terrific here at Duke we're willing to offer you a contract or gaddafi a three-year deal here are the terms of it here's the money here's the the scholarship here's all that but we're gonna insist on a non-compete clause a behavior clause and a performance clause academically now if I'm on Jabari Parker side you say how about two years well get will go to and on the academic performance we want independent reviews so that you can't say he's not good enough we're gonna dump oh and all of a sudden he magically flunks out yeah you'd have that'd be normal business and it would do they do just fine because right now it's amazing how when we're capped at a scholarship how they can go in and they could say here's what you're going to be getting from us and here's what we can do essentially on the side for you here are alums that we can help you out with here's this we can do all that stuff and it's no problem it wouldn't be and we have all the same we would have all the same complaints that we have now and the thing that I've always objected to is in it let's be honest it happens here are one in Dunn's are good kids that have a wonderful opportunity ahead of them you're one and done czar a threat to the integrity of this process and the truth is we recruited their one and done Stu we didn't get it we got this one happen and what everybody will say is we'd never take that kid okay you don't have them you don't have to worry about it what you're really saying is we don't want to play against that kid okay and I got a problem with that okay if not will I will throw it open to you know I will I can't respond to everything Jay said nor would I do it with such good humor I will say one thing you said that really resonated is the student-athlete term because I worked at the NSA for nine years and so believe me it was beat over my head student athlete with the – because they have to be linked and it's kind of refreshing it's almost like you're justifying the model all the time because it your challenge it is refreshing to be at a place like the Ivy League where athlete is used as a word when talking about our student-athletes and it's it's okay because we know they're students when they're in class and so yeah when they're with their team they're an athlete and that's okay too so I think your point is very valid there and it'd be great if we could accept that model for the overall enterprise yeah we're picking on the n-c-double-a a lot so I feel bad so I'm gonna pick on all professional sports leagues not just the n-c-double-a and it's not just the NCAA like who makes the argument that if we change the rules we have now the league the enterprise will no longer exist since the beginning of organized sports every league has made that only tried to make some change think about Major League Baseball if we got rid of the reserve clause Major League Baseball would no longer exist Major League Baseball seems to be doing just fine about to be a ten billion dollar industry players make it a heck of a lot of money but so are the owners same thing about tennis I thought if we allow professionals to play tennis it's a gentlemen's game if we allow these a lot of these mercenaries to come who are making money it will destroy a tennis same thing with rugby same thing with the Olympic model and yet they have managed to stem to survive this horrible horrible parade of again that Pandora's Box on the slippery slope it may be a slippery slope but you can build a ledge I mean there are ways that you can stop there are things that you can do to say all right we're gonna have limitations on compensation that's what we have in all the professional sports like what's missing in the n-c-double-a that the student-athletes have no voice much less of vote they don't have a voice and the the I think the hope that comes out of this whether it's through unionization or something else is that they will have some input in the rules that apply to them which they just don't have right and the slippery slope doesn't apply to anybody else it's not coach's salary there's no slope facility spending there's no slope the amount of money that we're selling this nine o'clock games on a weeknight no slope there because and you know some people think that the nine o'clock games that the network's are driving that well in essence we are we're saying well we want the game on a nine o'clock we'll pay you more to put it on at 9:00 you put it on at 7:00 we're gonna pay you less so whose decision is that it's the school it's the the the school saying no we'll take the money we'll put it on a nine that's big that's what's happened oh yeah the one thing I would say is we're going to have some system for control on the competition whether them the system is the market whether we're going to have regulation at a different level geographically size of program level of specificity regulation will come in because competition will drive excess and we have seen it in a variety of situations since Dean levy is here his own University of Chicago sent its baseball team to Japan for five months in an effort to promote the University of Chicago those students were not in in class and that was something that the rest of the competitors thought was unacceptable we're going to get some kind of limitation how legitimate will be where the source of legitimacy will come from I think it's the real question okay we'll take your questions now I yes I'm interested in hearing from Jay in particular but the other members of the panel on following up to what Paul just said on if you were to open up compensation to the players what sort of restrictions ought there be on recruitment in particular you know it seems undoubtedly in the n-c-double-a that they the vast majority of infractions by the schools are on recruitment infractions and there's still a question you know do you really want schools to start throwing these huge packages and be negotiating with fifteen and sixteen year old kids in high school from academic institutions you know whether they're you know not you know that always the most compliant on the regular rules so if we were in the system you envisioned Jay and maybe a reaction from the others what kind of guard rails for parameters would there be on recruitment if any if you were to open I would I would start with none and then go from there I don't think you I don't think you regulate from not allowing anything and allow now what you can do to trickle out I think you start with do what you do what you want to do and if there is something that there are competitive balance reasons we need to make reasonable regulation that's fine but most of the things I think you're talking about you know when you talk about recruiting violations have to do with things that don't need to be nor should be regulated like how many phone calls you could make who cares somebody phone calls you make we it's a wonderful exercise if you're ever interested to go back and look at the NCAA's regulations on stationery it's laughable how many colors you can have whether can fold over whether it can be raised a raised lettering and all that stuff the University of Maryland had an NCAA violation because you could only have three colors on your a time on your stationery and there were four colors in the state seal and you know somebody made a mistake and you know all of a sudden because that's the difference between choosing Maryland and another school you know all those regulations don't don't need to be they don't need to be in the rulebook and we so I would start with nothing and go from there anybody else so the recruiting rules I would revise a lot because Jay is absolutely right there's a lot of crazy recruiting rules that was the first bylaw learned back when I was a law student interning in the athletic department I had to write the recruiting rules in English so the coaches could take a test on them and they're crazy and it's because they the coaches don't trust each other and they also want to be saved from themselves because they they put these restrictions on because if you don't say the paper can only be eight and a half by eleven then maybe Carolina will create this great flier that'll be big and then Duke has to compete with that and Duke doesn't want to see you set these crazy restrictions so yes we could fix a lot of recruiting rules I think one of the concerns about a free market bidding process for the athletes is recruiting and it's where do you put the limits I would be I'm for one I'm supportive of going to a cost of attendance based system for a scholarship because that's academically tied to their expenses to attend the University they're attending when you go beyond that you start to get into true pay-for-play for the sport they're playing which is a distinction between the baseball player playing basketball there getting paid for that sport may be a distinction without meaning to some but others that that's fundamental I think the concern gets to frankly are you how much are you bidding beyond the cost of attendance and who is providing that money is it the car dealership down the street and are the car dealerships in Durham going to give as much the Duke players as they do to the NC state of Carolina players and then what about Tuscaloosa when it's the only game in town what are they going to be giving so I think as Paul said that you're gonna have to have some regulations or the the model of having some sort of competitive equity just falls apart or fair competition really falls apart I just want to highlight one thing and Steve's question why would we need to read to negotiate with a 15 or 16 year old well we would need to negotiate with them because they're not allowed to be represented I think that that's one of the things that really does need to be brought into question whether the folks in this room shouldn't be given the authority to help represent these kids and and and advise and negotiate there's one other issue here under the current law if we allow a regulated form of competition so that these student athletes to college athletes the athletes are getting more than just their expenses above cost of attendance and then we try to cap that some way and say well there's going to be a cap on spending for college football players refer to college football program whatever it might be then you run the risk of an antitrust attack because right now they're getting protected because it's capped at cost of attendance and so the Seventh Circuit says that means they're unpaid and you can do it ever you want once you go over that any limitation might run afoul of antitrust law so short of a congressional exemption or the courts changing the way they're thinking you have another antitrust issue that might pop up pop up out of this question yes maybe for you you know in 1956 or 57 the NBA would not recognize the players and at an all-star game Bob Cousy and a few the players refused to have the guys come out of the locker room until they were allowed to be recognized I say that only because how close do you think that is for may be happening in a bowl game or Final Four right here yes right there it was talked about this year it's been talked about and the players are becoming more aware of their leverage I do believe and I've talked about this before that the facilities that we've built are going to be a vehicle for that kind of protest I don't think it necessarily has to happen at the final four which brings with it tremendous amount of risk and and burden for the players that do that or that words to attempt that we actually talked about this beforehand I I've I've said before that just there's the situation we've got here at Duke with a prac a beautiful practice facility that's attached to Cameron if the players came out for a regular-season game and came out to center court and shook hands in front of the Cameron Crazies and the referees were about to throw the ball up they said come on let's go play in the case enter and they walked 100 yards there's a scoreboard in there the banners could have it all set up what are we gonna do with the ADEs of the two schools order the players to play on the the court in Cameron because they could say hey you've told us this is an avocation it's just for fun we're ready to play a game cadet game's gonna count the officials are here we want to play in here we think be more fun in here and sorry sorry but we're not party to your little confit a little multibillion-dollar contracts and so the cameras aren't gonna be able to see us and the paid the paid patrons aren't gonna be able to get in there but that's your problem I hope that happens at Carolinas if they lose the home court advantage that's going to happen at some point now whether it happens in five years ten years the players are becoming more aware it's just they're a transient but they they they turn over all the time so it's it's it's more difficult to do because mote I mean you knew dick defense EO real well we had talked about when we went to the subject was broached would you be interested in boycotting I would I would answer that with the question that what what parameters do we put on coach salaries facilities spending and the like that schools have different different institutions have different resources and different tolerance levels Robin's point about the the stationary example was you know a good one but I mean we make a lot of decisions here at Duke and if we can't decide how big our stationery is gonna be and we all need the n-c-double-a to tell us we got a lot of problems and we it's funny when it comes to the athletes we use terms like bidding war we don't want there to be a bidding war for the athlete you know we're not worried about a bidding war for Coach K or for David Cutcliffe for the like that's just business and I don't see it that way I think it would be business with regard to the players too because they've got tremendous value and if we if we don't believe they have value then what are we worried about they've got no value then they're gonna jump with the scholarship that'll be the end of it but I do think they have value and and its value that they're not realize and not allowed to realize based upon what I consider to be a cartel restriction yeah and I think the other the other aspect of that that you hear as an argument against allowing schools to pay their their athletes is that it will destroy competitive balance in college sports and all the best players will go to all the top schools that's the world we live in right now all the best players are doing all the best schools if you ask to college I think they had a choice you can go to Duke to play basketball or go to NC steps and she's NC central to play basketball they're all gonna come to do they do come to do and C central the other schools get the ones that we were good top five or coming here next year yeah so it's not going to change all its gonna change that those college athletes are now getting money to come here and it's a more efficient way I think to recruit them then figuring out what our stationery should look like or sending them text messages in the middle that I just show how much you care about them how much you want them here and you've got you know I think the lot of the arguments are here or if you if you allow compensation then t boone pickens is just gonna buy the best team every year all right well one I don't think that's gonna happen but it but it would be their their roster limits that could address that the best the five best quarterbacks are not going to go to the same school as the the four behind the starter not just going to sit there and watch the starter playing but the t boone pickens example the one of the reasons I think that's that's you know a crazy thing to say is T boone Pickens can pay whatever he wants for a coach there's no restriction on that and no disrespect of these guys but he's got Travis Ford and Mike Gundy he's not paying for Saban or sous-chefs key to go there Bill Self or whatever so and I don't think Phil Knight is going to be using you know Nikes money I think you shareholders we kind of get upset if there wasn't a return on on the investment I don't I don't think that's gonna happen I business doesn't work that way and I don't think it would happen there's just one other element to this throughout the world professional leagues are between 20 and 30 teams I think what you would see is the breakdown of the the model into some kind of super conference or agglomeration of 30 teams there abouts that would then insist within their group on certain common rules of competition and and I think that schools like Duke and other end schools and I mean Duke in that I think Duke operates with the interest of all the student-athletes in mind and then other schools that just have a lot of money in athletics would be fine under this model I think you have to look at the other schools so we're only talking probably about sixty schools that would be fine in this model there are other schools that would still be chasing the dream of winning an NCAA basketball game and they would do that at the sacrifice of other sports so again I get back to if you believe in the collegiate model then you believe in it for a multitude of sports and I would it would be unfortunate to see something that at many schools would lead us down a path of cutting sports we're starting to see that as it is and I think that's unfortunate and I I don't disagree with that I think but when we use the term sacrifice the sacrifice is solely upon the athlete the athlete is the only one making a sacrifice okay we're going we're gonna promise you we're any answer too quickly and questions yes this is a quick question what about the wall cons on these teams on the football teams and the basketball teams so you have probably 90 scholarship athletes but then the rest of them who are carrying you know the bags and doing all the hard work often times in the practice will they be compensated as well I mean I'm if it were my choice to be up the institution they decide how to compensate everybody else I mean you know the coaching staff isn't compensated the exact same way the head coach makes more than the lowliest assistant and there aren't fights in the locker room and you know it's not a problem people sent tend to understand merit-based pay and I think it would and you know that we don't have we don't have fights over playing time it's not like the the teams break up based upon wait a minute the quarterbacks on the on the cover of the the program that's not fair put the walk-ons on there they don't you know it's not a problem yes the only two revenue sports they're all of men's football I'm a football on men's basketball so ken schools pay a million dollars to a quarterback and pay a scholarship and maybe some stipend to the NCAA champion golfer well I mean might go ahead a part of the answer is you figure out how much you can afford to pay the part of your budget and let's say you now have to pay what you have a hundred thousand dollars you can spend on paying student athletes you can't spend all hundred thousand dollars in the male athletes because under Title I and let's just say you had to spend half of it on I'm saying we work out that we let's just say you have to spend half of it so if you've got a hundred thousand dollars you can only pay fifty thousand dollars to the male athletes and then you got to pay the other fifty the female athletes that but every school will be operating under the same that's wrong I think when you're going to this kind of system there's no question that these are employees and now I think we're under Title six not under title nine so we know you can have differential pay under Title six depending on the work I relate to pay in employment employment discrimination employment discrimination I agree with Paul which is where I think the unionization case if that goes I think it and there's disagreement here about that as well but I think if you read the decision it actually is not based on revenue it's based on control of coach's student-athlete time demands and so that applies to women's lacrosse at Northwestern as much as football in my opinion so then they become employees too and in title nine I think is out of the equation some women's groups are saying no title nine would still apply I don't know how title nine applies to an employer employee relationship well and I think the answer is I still agree with myself that'd be that additional compensation doesn't automatically turn them into employees because the argument right now is they are being compensated it's just a limit on compensation so for decades they haven't been seen as employees I don't think additional compensation wouldn't necessarily magically change that taxes on scholarship money that right now is not texts right now it's the the discussion is unrelated business income tax and so far that's not been termed an unrelated business but yeah for the University I yes other questions yes the right to organize is recognized and upheld in unionization is fed into the system does that undercut or perhaps kill the price-fixing approach not necessarily depends on how unionization happens because in professional sports league we have a multi-employer bargaining unit so the 32 NFL teams for example negotiate as one with the employees which provides them with an antitrust exemption from price-fixing or anything else if its individual bargaining units so it's the northwestern football players negotiating with northwestern as an institution and then you have the Duke football players negotiating with Duke and then Duke and northwestern come together and fix prices that's still a price-fixing violation yeah so it would have to be as part of the multi-employer bargaining unit to get the exemption so the antitrust issues would still be there even if you have individual unions that the NCAA is controlling this whole system they're all price-fixing now once the right to bargain collectively is recognized as an increased competition it doesn't introduce another session in the system unless it's Gabe said it's a multi-employer bargaining unit we've got the additional problems that some of these institutions are not under federal labor law so the majority of them aren't so unless there were additional changes the football team is a relay did not for profit corporation or something like that out from under the control of the state then and I think it would be difficult to organize as a multi-employer bargaining Mike Michael you get the last question so everybody agrees that the current system is teetering the question I have is it that's been true since 1924 everybody knew that this is ultimately gonna have since a massive beanie punched his fist through his boater after his guy wins at the Olympics right and amateurism is on the decline what's the NCAA gonna do dithered about this for three or four years and they keep saying we're working on it some of you been involved in that nothing seems to goose them along fast enough what can the NCAA do maybe that goes to you first but all of you well there are very serious discussions going on at the NCAA level about allowing and I think there's an understanding at Division one that the programs that are generating the revenue have unique challenges and thus antitrust lawsuit and the pressures on them because of the money that they do need to have an ability to do more for the athletes and they should be able to do that if they can afford to and so we are going to be redesigning our governance structure to allow them to do that and then the rest of us will have to figure out if we want to follow what they do or not so I think you are going to be seeing more changes no one's talking about pay-for-play though in the meetings I'm in and so the revolution of the system is not upon us it's trying to do more for student-athletes I do think you'll see that it's basically a stopgap they're trying to stem the tide because we're headed there I think to where the athletes are gonna be able to to be in a bargaining position to get more than just cost of attendance but the stipend is the is you know the level they that the incidentally wants to get to in order to be able to say look look what we've done for you but the same tension is gonna exist I mean it's the n-c-double-a I went in the short run I think in the long run as the because it somehow there seems to be this this sort of thought that while we've all been chugging down this road of Education and this kind of snuck up on us when the truth is that all these institutions have been chasing after this money for not only for the money's sake but for also instant like sports have been used for institutional advancement and those are great things but if you like there's a thing recently about it's called requiem for the Big East as a two-hour documentary on the death of the Big East basically and it takes you through the entire process of why the Big East was formed and what what the teams were selected for the different schools they were markets they're selected for TV markets and they grew with the SPN and all the you know goes over all the revenues to our show not once was education mentioned not once and and you know it wasn't edit it out and that's a you know that's okay like I'm I'm all for the coaches making as much as they can and administrators making as much as they can and and these TV contracts they're great but the problem you've got is the players are left out of it and we Clint you know they're at times they're made to look like criminals if like really we're gonna draw the line at a kid getting a tattoo or or like the the kids at Carolina that with the car essentially a lot of that came down to their use of a car and you're going okay so if they borrow a car and it triggers a six-month n-c-double-a investigation that costs tons of money I mean tons of money now if they had stolen the car no n-c-double-a investigation and the school just in the school and the school alone decides whether they play and that's the incentive we have you're better off stealing the car than borrowing and that's you know the players see that and they're you know they've been wising up over the years it you know it'll it'll reach it'll reach a point where they walk actually if they parked legally there would have been no yeah okay we're gonna call it quits at that point I there for those of you who are registered for continuing legal education there's some materials outside the door that you can pick up and thank you for coming

Amateurism in College Athletics: Is this the End?

2 thoughts on “Amateurism in College Athletics: Is this the End?

  • July 28, 2019 at 11:21 pm
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    This video is hard to watch in 2019. We are still in this problem 5 years later. Will the tipping point ever happen?

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  • July 28, 2019 at 11:21 pm
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    Slaves lived in dilapidated, damp, dark cabins and their wordly possessions consisted of a few rags, a small board and a stick of wood served as their beds and pillows, there was no physical, financial nor psychological comforts for them and worst of all slaves were INTENTIONALLY kept without hope, a slaves life was committed to producing wealth and comfort for the white masters, legal and extra- legal measures we're taken to keep both the free Blacks, like the slaves, in a dependent state and excluded from enjoying the fruits of a nation that THEIR LABOR WAS BUILDING, one of the first lessons that free Blacks learned was that without money or power, freedom for a Black skinned person was freedom in theory only, no one talks about how Blacks had been left out of the wealth pool because they weren't allowed to read or write or go to school, or not even allowed to generate or even pass any wealth to any ancestors.

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