Scott D. Schneider
Hello and welcome to Campus Docket, a Volt podcast about the legal challenges reshaping higher education. I’m Scott Schneider. I’m an attorney and adjunct professor at the University of Texas School of Law. And I’m joined by Eric Kelderman, senior writer at the Chronicle of Higher Education. Each episode, we’ll unpack the key legal developments that matter to higher ed leaders from student rights and faculty contracts to DEI lawsuits and government oversight. Let’s get into it.
Eric Kelderman
Hey, welcome everybody. Welcome to Campus Docket. I'm Eric Kelderman, senior reporter at the Chronicle of Higher Education. I'm joined as always with my friend Scott Schneider, who's holding down the fort in Austin, Texas.
Hey Scott, good to see you again.
Scott D. Schneider
Likewise, how are you?
Eric Kelderman
Hope you're well. Let's start this week by just hitting a couple of the most recent developments, legal developments that are affecting campuses. Tell me a little bit about what's going on with the EEOC and Harvard being under investigation for their hiring practices.
Scott D. Schneider
Yeah, as I understand it, the EEOC, is responsible for enforcing among other laws, Title VII, has expressed some concerns to Harvard, that they may have been discriminating in their hiring and promotion practices with respect to race. And so they're in the midst of initiating an investigation and what they're really focused on are some disclosures that Harvard made about basically increases in the diversity of the racial composition and the gender composition of faculty. And the EEOC has suggested, hey, it looks like you may have been discriminating against white men, Asian employees. And so they've initiated an investigation. And it's different. The EEOC investigation is different from a Department of Education investigation in the sense that they don't have any authority to pull funds, but what they can do, the EEOC can do, is initiate litigation against the university in its capacity as the EEOC. So, we'll wait and see what happens. Harvard has said, at least publicly, that they have not in any way discriminated on the basis of race or color or sex and therefore haven't violated Title VII and so we'll just, we'll see how that unfolds.
Eric Kelderman
I don't know if you can answer this, but is this a typical way EEOC would start an investigation by saying you've diversified your employee pool, then that's a sign that you are discriminating. I guess I wonder about the consistency of that approach or how typical that is.
Scott D. Schneider
Yeah, and no, on both procedure and substance. I mean, on substance, I'm not aware of the EEOC ever taking this sort of position, that public disclosures about diversification of an employment pool, that that would be a trigger for an EEOC investigation. And then typically EEOC investigations are triggered by some sort of complaint. And there's a process for pattern and practice type investigations. And it's not clear to me that any of that has been followed here.
Eric Kelderman
Yeah, very interesting. The thing that caught my eye this week, there was a hearing on the Hill, a congressional hearing about allegations of anti-Semitism. This time it wasn't the big name, the Ivy League colleges, it was Haverford, DePaul, and Cal Poly. This seems like an intention by Congress, clearly, and I think there's a state intention to show that they're interested in these sorts of actions at places beyond the best-known institutions. And we'll see how far they can go with this. I'm sure it's setting off alarm bells across higher education in terms of what we think of as sort of regular colleges fearing that the Hill is going to call them up and hold them to account for some of these protests that happened. Some of these allegations are very old, certainly they're still relevant to conservative politicians who think that this is an issue that's worth looking into. The other thing that happened that I noted this week is that the Ed Department has started a Title IX investigation at Western Carolina University over allegations that a transgender female person was allowed to use a bathroom there and that led to an encounter with a regular student. Again, this is sort of an extraordinary measure by the administration on an issue that seems to affect really very few number of people. I wonder sort of, again, how far will this go and what will be the reaction of colleges to try and avoid this scrutiny in the future.
Scott D. Schneider
Well, and I want to put a fine point on that issue in particular. I think, you tell me if I'm wrong, Western Carolina is in North Carolina?
Eric Kelderman
Yes, that's correct.
Scott D. Schneider
Which is in the Fourth Circuit Court of Appeals, which has addressed this very issue twice and has said, Title IX extends to protect students on the basis of gender identity and it would be a violation of Title IX to not allow students to use restroom facilities, participate in sports in a manner that was consistent with their gender identity. There were also constitutional dimensions to those rulings. From Western Carolina's perspective, they're between a rock, is Fourth Circuit binding opinion that they're trying to comply with, and a hard place, which is the Trump administration saying, well, we don't think you are complying with Title IX, and more specifically, this executive order that President Trump issued. I think, ultimately, what will happen is this, if it doesn't get resolved at the department level, sort of what happened at the University of Maine when a similar thing happened, it'll get resolved in litigation. And certainly a District Court's going to be bound by Fourth Circuit opinion. And maybe this is the department signaling that they want a Supreme Court battle on this. But it's really, I think, historically unprecedented to take a compliance position with respect to a university in a jurisdiction where a Circuit Court of Appeals has reached a completely different opinion or finding. And so, that's the difficult situation we have there.
Eric Kelderman
Yeah, very interesting. I'm sure we'll be revisiting this in the future.
Scott D. Schneider
Yep.
Electric Kite ad read
Eric Kelderman
So today we're joined by Gabe Feldman. He's the director of the Tulane Sports Law Program at Tulane University, of course, in New Orleans. He's also the university's associate provost for NCAA compliance. And he's well known among legal experts across the country in sports law. So, welcome to Campus Docket, Gabe.
Gabe Feldman
Thank you for having me on.
Scott D. Schneider
Hey Gabe, how are you?
Gabe Feldman
I’m good, Scott.
Eric Kelderman
Well, Gabe, before we get into it, Scott and I like to have a little icebreaker before we get to the meat of the interview. And since today we're going to be talking about college athletics, we wanted to open up something light and ask you, what is your favorite moment in college sports?
Gabe Feldman
My favorite moment is, probably, I was, as Scott knows, a power lifter in college, and when I said… No, that's a joke. My favorite moment is, I'm a triple Dukie, and my freshman year in college is when Duke beat Kentucky on that very famous Christian Leighton shot and so I was watching that game with my new college friends in our freshman dorm and then ran across campus to celebrate. That will forever stick in my mind as one of the, not only one of the happiest moments in college sports of my life, but of my life overall, minus all the great family stuff and the marriage and the kids, you know, but that's the one that sticks out most for me.
Eric Kelderman
I think we may have just lost about probably half of our listeners. Do you now know that Gabe is a Duke fan?
Gabe Feldman
Or, look, nothing gets people in more than rooting for their team or against Duke.
Eric Kelderman
That's a good point. I'll give you that.
Scott D. Schneider
So you can get lots of people hate-listening to this now.
Eric Kelderman
Fair enough. Scott, what's your favorite college athletics moment?
Scott D. Schneider
I think when Duke was eliminated from the NCAA tournament this year, it was really a golden moment for me. Is that helpful?
Gabe Feldman
I was at that game, so I got to experience the pain in person.
Scott D. Schneider
That makes it even better. Yes!
Gabe Feldman
That makes you even happier.
Scott D. Schneider
I'm not answering that question seriously. What about you, Eric?
Eric Kelderman
This is kind of a throwback. I'll give you one. The Iowa Hawkeyes went to the Holiday Bowl in San Diego. It must have been January 1985. And they had a relatively new coach then, Hayden Fry, who had just come from, I believe SMU. And some friends and I from high school piled into a van, Mike Marchetti's van, four of us, and we drove all night. We drove to Tempe, Arizona. We stayed overnight in some friend of a friend's house, got up the next day, drove to San Diego, went to SeaWorld, went to the game, the Holiday Bowl, did the face paint, got on WHO radio in an interview before the game. The Hawkeyes won on a last second field goal by their kicker and it was glorious. It was a great, great experience. We had a terrific time.
Scott D. Schneider
Gabe, were you in face paint at the tournament?
Gabe Feldman
I actually do want to supplement my answer because my Duke answer has forever been my answer, but it's actually now, it's when Tulane beat USC in the Cotton Bowl. And I took my wife and my kids to see the game and it was one of the best sporting experiences I think anyone has ever, other than USC fans, I guess, experienced. But just seeing the comeback, the little Tulane beating Caleb Williams in USC and it was just, that was my favorite. That's my new favorite.
Eric Kelderman
All right. Well, terrific. Well, no surprise, we want to talk to you today about college athletics. There's an enormous amount of activity in this arena. And, I think, part of the background is this, just that college athletics is so deeply ingrained in American culture. For more than a century, really, the ethos and the business model of that enterprise was rooted, at least theoretically, in the idea of amateurism. And if you can't see me, I'm doing air quotes around amateurism. This idea that athletes are doing this only for the love of the game and not for any kind of monetary award.
But since the 1980s, at least, college sports, that a few dozen of the biggest best-known programs have become increasingly lucrative for those institutions because of the massive sums of money they earn from television rights primarily. And that money has gone primarily to athletics departments, coaches. We now have football coaches that are earning millions of dollars every year at some of these big programs, and staff in the so-called, what we call revenue sports, right? Which for those of our listeners who aren't familiar, that would be football, men's basketball, and now increasingly, of course, women's basketball. The influx of money has led to a major legal shift, with several court rulings giving athletes now the ability to be paid by monetizing their name, image, and likeness, that has come to be known in shorthand as sort of NIL. And Gabe, you know, for listeners who really haven't been steeped in this world, I think it'd be great if you could just give us a brief overview of this new landscape and how we got here and some of the key legal decisions that have led us to this point.
Gabe Feldman
Yeah, so there's a lot there. So I'll try to be concise. I will say that although there are increasing complaints about the commercialization and professionalization of college sports and the exploitation of college athletes, it's not a new complaint. And I'll often start a talk by reading a quote that essentially says that “college athletes are being used as pawns and we need to stem the overcommercialization and exploitation of college athletes.” And that was from a 1929 Carnegie report. And so, it's been nearly 100 years where people have complained that college sports have been disconnected from academia. And, you're right, though, in the last 20, 30, 40 years, the cries have grown louder in part, because television revenues have exploded, coaching salaries have exploded, spending on facilities has exploded. It's always been big, but we have reached, I think, finally, even though we thought we've had 15 different tipping points in college sports, I think we finally have reached a tipping point with realignment, with NIL, and with litigation. And I think you summed it up really well that for basically 100 years, college sports has defined itself as being distinct from professional sports for two reasons. One is because the athletes are not paid based on their athletic ability, and two is because they are students.
And focusing on that first one, not paid based on their athletic ability really had two parts. One was, they were not paid to play the game. But two was they were not paid for the value in their name, image and likeness that was derived from their playing ability. So if you were a high profile college basketball player who also played the piano, you could do stuff and make money based on your piano skills, but you couldn't do it based on your athletic skills.
Eric Kelderman
Right.
Gabe Feldman
And that was seen as necessary to make college sports college as opposed to pro. And why that mattered is because it gave fans something different. And so under antitrust law, it was seen as a pro competitive benefit. That without these restrictions, if we started paying college athletes, started paying them based on athletic ability, it would just be minor league professional sports and not many people watch minor league sports. And so the long-standing argument was if we pay these athletes, people will stop watching. And that was an argument that it was difficult to accept on many levels, but the response that was often given to that was, well, if what makes college sports so popular is that the athletes aren't paid, I have a note for minor league baseball. Stop paying your athletes and everyone will start going to your games and you'll have these massive television contracts. It obviously wasn't just the compensation restrictions. There's something about these being college athletes, these being students, these having association and affinity, fans have an affinity for that school. But as the gap between what college sports, and when I talk about college sports here, I'm really just being in FPS football and men's and women's basketball too good. But as the revenue kept increasing and the amount that students were getting stayed flat, there was more and more discomfort with that. Particularly, when you look at the demographics of football and men's women's basketball players, predominantly black athletes, and those who were getting the millions of dollars are predominantly white executives and others, who were not the ones that were risking their lives and their academic careers playing sports. So, we've seen now in a number of antitrust cases, where the courts have exercised less and less deference towards the NCAA as they've gotten less and less different from professional sports. And the argument has always been, college sports are special and, therefore, entitled to special treatment under the law. But as they get less and less special, the treatment they get is less and less special. Now, they suffered a series of, I would say, relatively small defeats in federal court, starting with the Ed O'Bannon case that most people know about this case where Ed O'Bannon, one of the best college basketball players of his generation, didn't have a great NBA career, was sitting on the couch playing the college basketball video game with his cousin or his friend, it's not clear who it was, or his nephew, and they were playing with the all-time UCLA greats team. And Ed O'Bannon is on that team. Now it didn't have his name, but it had his number. It looked like Ed O'Bannon, it was his height, it was his weight, it was his hometown. And the young person said, how much are you getting paid to be in this game? And Ed O'Bannon said, I'm actually not getting paid anything. And they said, well, that doesn't seem right. And so that one thing led to another. There was an antitrust lawsuit. It started with video games. It became about more than just video games. Again, there was a sort of a split decision there. There was another case called the Alston case that went all the way up to the Supreme Court. As many people probably know, this was now four years ago. The Supreme Court ruled unanimously against the NCAA. So when we talk about sports being one of the great unifiers in this world, there is not much that can get our current Supreme Court to agree on anything. But to get nine justices to rule against the NCAA is a really incredible feat. But even that decision was relatively narrow. And it basically said the NCAA can't restrict compensation related to education. But still, the NCAA was allowed to restrict these NIL payments and then pay-for-play. And then the states got involved. And it started with California, and then it quickly snowballed where states passed laws that said, the NCAA is not allowed to prohibit college athletes from being paid for their NIL. It doesn't require them to be paid. It just says you can't have a national rule that prevents them. And the NCAA was faced with a decision. Do we try to challenge these state laws, or do we change our rules?
And so they changed their rules. And, starting in 2021, college athletes are allowed to be paid for their NIL. What has happened since is a little different than I think what many people hoped would happen. What many people wanted to happen was that college athletes would be treated like other college students on campus. That if you are an influencer, if you're on YouTube, if you want to promote yourself and give lessons, you can be paid for that. Just like your non-athlete roommate could. But what it's turned out for many athletes over the last four years is boosters and groups of boosters called collectives have been paying athletes several hundreds of thousands of dollars, if not millions of dollars to attend the school or to stay at the school or to transfer to the school calling it NIL, when in reality, it's not an endorsement deal. It's not for an autograph. It's so that athlete will stay at the school or play at that school. So it became something very different than, I think, what a lot of people wanted it to become, which leads us to today, where we have an industry-shifting settlement that is on the doorstep, and maybe by the time this gets aired, the settlement will be final. But we are waiting for a federal judge in California, Judge Wilken, to approve a settlement that will fundamentally change the compensation structure for college athletes. And I'll just be very brief here, because I know I've rambled on for a while, but it was a long question. There was a lot in there. So the basic new landscape will be, oversimplifying, but college athletes will be entitled to back damages in a total of $2.8 billion. They'll be paid out over 10 years. Going forward, schools will be allowed, but not required, to share about 22% of the defined set of revenue with the athletes. That's about $20.5 million per year per school. The schools get to decide how that will be divvied up. There will be no more scholarship limits, but instead roster limits will be put in place. And college athletes can still do these outside NIL deals, but if they're doing it with a booster or a collective, then it will be reviewed by a third-party clearinghouse to determine whether these are legitimate NIL deals. And if they're not legitimate, they'll be rejected. If they are legitimate, they'll be permitted. So Deloitte is going to be undertaking that effort to figure out what is a fair market value for an endorsement deal of a backup offensive lineman in Des Moines. We'll see how that plays out, but that's the new system that this settlement will create. And it really, in a lot of ways, will mirror pro sports. There'll be a salary cap. And then, athletes can do NIL deals, endorsement deals, just like in pro sports. But just like in pro sports, those have to be legitimate deals that can't be an attempt to circumvent the cap.
Eric Kelderman
And just to be clear for our listeners, the provisions of this settlement, called the House settlement, this applies really only to 70 or so schools right now in the so-called power, what's now the Power Four Conferences, for as long as those entities exist, right? Right, so it's not Drake University in Des Moines or my alma mater, Luther College in Decorah, Iowa, right? We're talking about sort of the biggest, best known, most lucrative college sports programs in the country.
Gabe Feldman
Yeah, so they're the ones who were sued with those, it was then Power Five, now it's Power Four conferences and the NCAA. So they're required to do all the things I just listed. The schools at these other conferences can either opt into the settlement or they can opt out. If they opt in, they're allowed to share revenue, but they're subject to these roster limits. If they don't opt in, then they can't pay the athletes directly, but they're not subject to the roster limits. So it'll have a trickle down effect, but this is primarily targeted at those Power Four conferences and schools.
Scott D. Schneider
Can I riff on this for a second?
Eric Kelderman
Yeah, of course.
Scott D. Schneider
So one of the issues, I initially started off as an employment attorney and I like the way you discussed what NIL was even before the House settlement, which certainly looked like a pay-for-play and not NIL in any real sense. You look at the Johnson case that deals with whether or not certain college athletes may be employees for the FLSA purposes. And you start to have, I think, this very difficult time making the argument that, at least in some instances, for some athletes, because of the degree of control and now the reality of direct compensation, that these aren't employees. If that holds, if they're not employees, there's something different, that that can withstand scrutiny. I kind of want to get your thoughts on that. And number two, where does the resistance to, basically, maybe recognizing sort of the legal reality, what is the basis for that resistance? Where does it come from?
Gabe Feldman
Yeah, let me start by saying I didn't even realize you were a lawyer. I'm just kidding. Scott is an excellent lawyer.
Scott D. Schneider
Technically, I'm a very mediocre lawyer, let's just be clear, but yes, still barred.
Gabe Feldman
Well, I think on the second one, the basis for the resistance is that people who have money want to keep that money. And I think it's as simple as that. And the system has worked well for a long time for many people. I also think, to be maybe a little less cynical, part of that is a genuine belief that college sports are different than pro sports and that we need to protect this great institution and this great product that so many millions of fans love and that, if we allow them to be employees and get minimum wage or unionize and collectively bargain, it's going to fundamentally change what college sports is and it's going to destroy it. And so that in order for the product to exist, these restrictions need to exist. So I think some of the pushback is one, people just want to keep their money, two, they genuinely believe this is what defines the product. And then, I think, also, there's a lot of paternalism involved in not wanting to have these 18 or 19 year olds get all this money. I think there's certainly a racial element involved. I think there's a lot to why this has become the entrenched system where no other group, and just speaking about NIL for a second again, no other group of individuals in this country were categorically denied the right to make money off of their name, image, and likeness. And that's what we call right of publicity in every other area. And was done to protect the athletes and protect the sport.
I think, as many people know at this point, the term “student athlete” was essentially created to avoid workers comp, to avoid all the things that come with employee classification. And so that was in part strategic. In part, it's also because for a very long time it was seen as you're either a student or you're an employee and those are antonyms. And that the relationship between the athlete and the university was student—university, not employee—university. The argument, as we've seen in the FLSA cases, we've seen a little bit in the NLRA cases as well, is you can be a student and an employee at the same time. And there are lots of students who are employees. And the argument that Paul McDonald, who's the lead counsel in the FLSA and the Johnson case, has made is, look, there are students who are selling concessions at the football games and they're getting paid. But the football players on the field, are also students, are not getting paid. And we say it's because you can only be a student or an employee and they say, well, you can clearly be both. Now there are some issues with that analogy. It's not a perfect analogy, but in general, I think, the pushback was we don't want these to be employees who want them to be students. We don't want them to be earning money. We want them to be focused on class. And I think that's been a harder argument for people to stomach as we realize that lots of students on campus are making money doing lots of different things. And there has to be some really compelling justification to treat these athletes differently. And I don't think people are as compelled by the justifications.
In terms of the legal analysis, you mentioned it, and you know this better than I do in terms of the requirements for employee classification that control test is the primary test. And if you didn't think about what the athletes were doing, if you didn't think that they would see they were playing football, they were practicing, and you saw the amount of time they spent on their sport, and you saw the amount of control that the schools exercise over those athletes, you know, it certainly looks a lot like what employees are subject to. But there's also lots of things where they don't look like employees. And one of the things that I love about employment tests is that, you know, for many years, now the Third Circuit has given a more narrow test for athlete classification as employees, but in general, there'll be these nine-factor tests where it's a non-exhaustive list and no single factor is dispositive and it's up for the court to balance them. I mean, that's very difficult to actually execute and to analyze and to figure out with any sort of predictability. And then you lay it over college athletics, which is just so very different than a lot of other employment contexts. I think there is genuine debate and disagreement about whether college athletes are or are not employees. But there is a visceral reaction, I think, by a lot of people that, and particularly within college athletics, that it would be the death knell for college athletics if the college athletes were employees. And I think for lots of different reasons, but I think it really is this boogeyman, this boogeyperson out there, that if their employees, college athletics will be destroyed. You know, I'll also point out that pro leagues for decades had argued that lots of benefits that were not permitted, that could not be given to pro athletes, that if they were permitted, it would destroy pro sports. Whether that was free agency, whether that was the ability to make a higher salary, whether it's ability to choose where you are going to play, whether you could be traded or not, all these sorts of things. That's not specific to the NCAA. Every large organization when faced with change is fearful that that change is gonna destroy the value in whatever they've created. And I don't think that's any different in college athletics. Now, there's also the concern about their employees. Does that mean you have to negotiate when they can go to class and what grade you're allowed to give them? I think there are some things that are not necessarily legitimate concerns, but I do think it's the fear of fundamentally changing the relationship between the athletes and the schools, and then fundamentally changing the product of college sports.
Scott D. Schneider
On the death knell argument, I mean, it strikes me in pushback. That's been a common refrain from the NCAA. I mean, the same thing happened in ‘72, when Title IX was passed. This is going to be the death knell of college athletics. Obviously the same thing happened with respect to NIL. You know, this is the latest iteration. I'm sure I'm missing a whole bunch. I'm kind of curious. What do you think? I mean, is it the, is this the time when, finally, this would be the death knell now and if so, why?
Gabe Feldman
Yeah, so there is definitely a boy-who-cried-wolf aspect to this because my favorite of the this-will-destroy-college-sports one is, in the good old days, when we would fight about improper benefits and what athletes were allowed to receive, there was the infamous rule, the nuts and spreads, that you were allowed to give your athletes bagels because that was considered a snack, but you couldn't give them spreads for the bagel because that would turn into a meal and meals were impermissible. And so, they had to make sure no cream cheese, no butter, but the bagels are allowed. And the idea was that, if we somehow allowed them to have a full meal, that would destroy college sports. When the cost of attendance issue came up, and schools are gonna be faced with having to pay an extra few thousand dollars per athlete, they said that would destroy college sports. And there were university presidents, who said, if we have to pay full cost of attendance, that at Power Four schools said, we're gonna drop sports. We're just gonna drop out of division one because we can't afford to pay all of this. So these arguments have happened all the time. So they're a little harder to take seriously, given that they were proved not to be true in the past. I think the real, the ultimate question here is, how do we define what we want college sports to be? What do we need to achieve that? And then once we can define it relatively narrowly, we can figure out what rules are truly necessary and what can go away. And I think there are some rules that are necessary to have college sports, just like there are rules that are necessary to have pro sports. I don't think the prohibition on spreads was one of them. And we've seen it. That's true. We, now, athletes have cream cheese everywhere you look. It's just locker rooms full of cream cheese and college sports have gone on and we still love them.
Would employee status destroy college sports? I don't think so. It would change it. But, there is a real disconnect, I think, between how college sports actually operates and how people think it operates. But the other part is, I think, college football, big time college football is different than everything else. And it's hard to have a conversation about employee status when you're talking about college football players at USC and at Georgia, and then you're talking about swimmers and divers and golfers, who are all working extremely hard. There's just a very different relationship between the schools and the athletes. The expectations are different. The revenue generation is obviously very different. So, I don't think there's a one size fits all answer to this. I will say that college sports are resilient and that they will be able to adapt. But will it change? Will there be some losers in this? Yes, I do think there will be, but I think there is a way to continue to give athletes more benefits, whether that's as employees or in some other way, and still maintain what we love about college sports.
Scott D. Schneider
Yeah, can I put a fine point on the point about football and not locker rooms full of cream cheese? Yeah, I mean, there is a laziness and I certainly engage in it, about treating all college athletes as a monolith. Obviously, depending on the sport, the degree of control varies and I think, big time, Power Four college football, for a variety of reasons, they might be FLSA employees for reasons that the rowing team at the same university aren't. So, I think, that's a good point. Can I pivot to one thing and you alluded to this and it's sort of the thing. Whenever I wanna go on X, which is very rarely at this point, I just wanna be annoyed. There is a sports law Twitter group that all they talk about is the solution to all of this is obvious. It's collective bargaining. And I have to constantly come back and go, there's some really basic fundamental labor law problems with collective bargaining in this space. The most notable being that there hasn't even been since, you know, obviously Dartmouth and the basketball setting, but Northwestern, an expression of interest by football players, let's just start there, about unionizing. More frankly, maybe should there be? I mean, they seem to have a really good arrangement without collective bargaining. You have all these teams competing for their services, no draft, things like that. Am I, I'm not asking you to give a clinical opinion, but…
Gabe Feldman
I will give you my opinion. And I agree with you. And I've had this conversation many, many times. In fact, I had this conversation this morning with Ross Dellinger over at Yahoo, because everybody is saying, look, this is the answer, collective bargaining. And let's put aside the folks on social media and just the college athletic directors or university presidents, who are saying collective bargaining is the solution. I've tried to say to every one of them, you don't get to make that choice. That's the thing about the NLRA, and that's the thing about federal labor law and collective bargaining. There's an asymmetry. The employees got, you know this, the employees get to decide whether they wanna be in a union and collectively bargain. It would actually be illegal for management to say, want you to be in a union or not be in a union. You can't interfere with those rights. And to this point, we've not seen any real interest outside of a couple of exceptions. As you mentioned, Dartmouth men's basketball, which was, I think, an outlier because there was a service worker in there who was a member of a union who was also on the basketball team and said, well, why don't we unionize as well? And then Northwestern football. But Jennifer Bruzo, the former general counsel of the NLRB basically invited college athletes to unionize and said, we think you are employees. And nobody took her up on that invitation. And the question is why. I think there's a lot of reasons. Some of it may be the same reason that other employees in other situations, even going back to the original pro sports unions, were afraid they'd be retaliated against, right? Which would be illegal, but they were still afraid that they'd get blacklisted, that they would hurt their chances of playing time, that they would hurt their pro career.
Jay Billis, just because I hadn't mentioned Duke in about eight minutes, so Jay Billis has about as strong of an athlete advocate as you can find, was a strong athlete advocate when he was in school. Duke was playing in the tournament and somebody asked him, hey, it would really make a difference if you sat out this game, right? If you boycott it, think about the impact you would have and what you could do for athlete rights. And Bill was a senior at the time and his answer was, can I do it next year? Because I really want to play in this game. And who can blame the 19 or 20 year old, right? And the 10 year old doesn't want to miss their intramural playoff game, how can you expect a 19-year-old to give up this thing that they've worked their whole lives for? So I think there's that element of it. But there is also, as you said, Scott, and the old adages that bad bosses make great labor organizers. I think the inverse of that is, if you have a good boss, then you don't need the union or you don't want the union. And why would the 19-year-old take the time to form a union and then eventually maybe negotiate and then eventually get benefits that won't help them because they'll already be gone. They'll have graduated.
So, in theory, yes, collective bargaining is an answer to the antitrust issues. Before we get there, one, there'd have to be the interest in the athletes. And then two, there would actually have to be a determination that they are employees, who have a right to unionize. And then three, you’d have to deal with the public-private issue with the NLRA only applying to private employers. So other than that, I think it's a perfect solution that could happen tomorrow. Not to say that it won't end up there, not to say that there isn't some validity to it. And it is true that that's why pro leagues are immune from antitrust law, because of those collective bargaining agreements. But, also, keep in mind that Jeff Kessler, in many cases, has pushed those players unions to dissolve, so that they could go and sue the leagues under antitrust law because they had more power under antitrust law than labor law. That's where college athletes are right now. They're enjoying a lot of success because of antitrust law. So why would they want to shift to labor law? I see why management would want them to shift to labor law, but it's not clear that the athletes want that at this point.
Scott D. Schneider
Yeah, no, I think you said it really succinctly and well. I mean, look, Jay Billis is top of mind because, I know he's a lawyer and he works at a fantastic firm with some of the best labor lawyers in the country. And he's out there, I think, two days ago, going, collective bargaining is the answer. And I go, well, let's apply that. I'll add another level of complication. The public school employees, and you've alluded to this, public universities are exempt from the NLRA. In a state like North Carolina, they can organize, but they are specifically barred from collective bargaining under state law. So there's tons of reasons why everybody keeps throwing this out there. It's the obvious solution to all the problems. And I agree with you. From management side, it is a fantastic solution to the antitrust problem, because, arguably, they get the benefits of the non-statutory exemption. But man, there are so many pragmatic problems with college athletes unionizing and getting collective bargaining rights, the least, not the least of which is the fact that the last time the full board took this issue on, they just declined jurisdiction for all of these practical reasons. There's not even board precedent to support it.
Gabe Feldman
And there's not even a full board right now to actually do anything about it. So that's a separate issue. But I agree, Scott. I think it is interesting to hear in the same breath, folks within college athletics say college athletes are not employees, but the solution is collective bargaining. Which is why, they're sort of asking Congress to say we need a special category for college athletes that they're quasi-employees so that they can get the collective bargaining protection from antitrust law, but not have to put all the other employment requirements on there.
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Eric Kelderman
Let's get into that topic just a little bit, which is, not surprisingly, we've seen some big-name coaches be in touch with the administration and on the Hill, advocating for some sort of legislative solution. First of all, what is it that Congress really could do in this space, and how likely do you think that is anytime in the near future?
Gabe Feldman
Well, I mean, Congress could do a lot because this is, for a long time, people had said, why should Congress even care? And why should they be involved? Don't they have more important things to do? And they do. But, I think, sometimes people underestimate the importance, the societal importance of sports, college and pro. Because you have an industry that is generating multiple billions of dollars and involving hundreds of thousands of students and then millions of fans. That’s a pretty important industry. Just because they happen to be playing college sports doesn't make it any less important. There's, I think, jurisdiction, depending on what the area is and what committee, and there's some debates about which committee should have jurisdiction over this. There's also gonna be a battle potentially between the states and Congress, or the states will say it should be the states' rights, not Congress. But putting all that aside, what the NCAA has been asking for is an antitrust exemption, a declaration that college athletes are not employees and preemption of state laws. And we've seen, almost every couple of weeks another state passes some law that potentially conflicts with the NCAA's rules or with a House settlement or a combination of the two. And then there's some other things they want in there, but those are the really the core asks that the NCAA has put out there. And there have been moments of optimism. And I think the thought was with a Republican controlled Congress that was more likely to get something pushed across. But just in the last few weeks, we've already seen a rift within the Republican side. When Ted Cruz had introduced legislation that would give the NCAA really broad antitrust protection, a lot of things the NCAA wanted. And then President Trump announced that there's going to be a college sports commission that will be co-chaired by Nick Saban and Cody Campbell, this wealthy booster. And that apparently has caused a rift because Ted Cruz thought this was his thing to do. And I won't get into the politics beyond that, I think there's lots of issues when you're talking about. I will just say, again, this is not a political statement, but if your mix involves Donald Trump, Ted Cruz, Nick Saban, then I don't know what's going to come out of it. I would suggest that that may not be the dream team to create federal legislation, and Tommy Tuberville, that's the other person who's in there. And I think they're all well-intentioned. I just think they have different views of what this should look like. But their lobbying efforts continuing as we speak, on behalf of the NCAA, on behalf of the Power Four, on behalf of coaches. I mean, they are pushing, they are trying.
Part of the issue is, as we've been talking about, this employment issue, that you have many members of Congress, who want to limit labor rights and employment rights and don't want to expand employee classification. And you have many on the left, that do want to expand it or at least don't want to restrict it and don't want Congress coming in and saying, this group are not employees. So just the employment issue itself has been a sticking point. There are lots of other sticking points in terms of the breadth of the exemption, who's gonna oversee it, what the enforcement's gonna be, what the penalties are gonna be. But there are lots of, like with any legislation, kind of poison pills that are stuck in there or just issues that go beyond college sports that they can't agree on. And that I think is the biggest stumbling block. I think there's general consensus that we wanna do something to protect college sports, to provide more benefits for college athletes, but also provide more stability. But the employment issue is a big one. And then the one that's not quite as prominent today as it was a year or two ago, was transgender athlete participation. Not because the issue is any less significant, but there's a little more agreement, I think I would say, on some of those areas now than there was maybe two or three years ago. But lots of stumbling blocks. I still think that Congress is the most likely solution for college sports. I'm not saying it's likely. I just think it's the most likely among all of the other solutions, because any of these other things we're talking about, you might solve the antitrust issues, but you still have the labor and employment issues. We still have the Title IX issues. We still have the tax issues. So doing it one area at a time, I don't think is gonna be enough. I think you do need some wholesale change to the system and Congress may be the ones to do it.
Scott D. Schneider
Can I, in defense of coach Saban?
Gabe Feldman
Yeah, I wasn't attacking coach Saban, but…
Scott D. Schneider
Yeah. I think, just from reading some comments that came out the last couple of days, I think there's a 0% chance that he's on any commission on this issue.
Gabe Feldman
Well, and I think that highlights part of the problem is day one, the President announces Nick Saban as co-chair of commission. Day two, Nick Saban announces he does not want to be co-chair of said commission. So, that doesn't give a lot of faith that this commission is going to one, be created or two, if it is, go anywhere. But it's just another, you know, it's something else muddying up the works.
Eric Kelderman
Maybe we'll get Bill Belichick and Jordan Hudson to help out with this somehow.
Gabe Feldman
That's one level ahead of the presidential commission, whatever's stronger than a presidential commission.
Scott D. Schneider
I think Coach Saban is positioning himself to run for president. The only problem is he may be too young to be president. Hey, you mentioned Title IX. Can we just talk about that for a second? I mean, there have been a number of announcements about, hey, when the House, if the House settlement is approved, and I'm operating from the premise it would be, but happy to get pushback on that. You've seen all these announcements about distributions of, whatever we're calling it, I call it compensation. I know, I'm not supposed to do that, but in most of those distributions, obviously, are heavily tilted 90%, in some cases, to male athletes. And you saw the previous administration issue some guidance on that saying, hey, that there are Title IX implications to that. This administration rescinded that guidance, the Trump administration. Kind of curious about your thoughts on that issue.
Gabe Feldman
Yeah, I think, just for those who haven't been following as closely where those numbers come from, so the back damages for the athletes, an economic expert for the plaintiffs said that we think 75% of the damages are owed to football players, because they're the ones who have had the most value and were deprived of it. And then about 15% to men's basketball players and then five to women's basketball players and five to everybody else. So that's 90% to male athletes, but again, predominantly football and basketball. And with that new money being distributed and the settlement refers to it as pool payments, but the new whatever we want to say, that new $20.5 million, there's nothing in the settlement that dictates how that money is distributed among the athletes at a particular school. So it's up to the school to decide. And what a lot of schools have announced, it's not official yet because the settlement's not been approved yet, but they've announced that they're going to use that same back damages formula to share that revenue going forward. So 75%-ish to football, 15% to men's basketball, and then spreading the rest between women's basketball and other sports. And the argument is, well, that violates Title IX, because either one, that this is financial aid, and the aid has to be proportionate to the breakdown of gender participation in sports. And this would not be under any sort of analysis of it, or maybe it's considered a treatment benefit and it's in that laundry list and it has to be equitable in some way. Under any definition, it's hard to see how 90% to male athletes is equitable, unless you use the argument which schools have been talking about. And Scott, you've had more experience in this than maybe anyone else in the country, but that this is based on market value. And this is what we're paying because this is what the market would pay. Now, in general, that's not a defense under Title IX. But, this is a different circumstance. And, I think, one thing we can all agree on is that in 1972, the drafters of Title IX were not thinking about how the law would apply to the distribution of football revenue to athletes. And so, I still think there is, I know, there's a lot of disagreement, there's a lot of debate. And Scott, I'll turn it back to you on this, but if it goes 90% to male athletes, 10% to female athletes, I think without a doubt we will see a slew of Title IX complaints filed by private plaintiffs. You know, the government, I don't think is going to care about that, but I think private plaintiffs. But if it goes 50-50 male-female, then I think we would see the male athletes claiming, why are we only getting 50%? We're the ones that are generating 90% of it. So, Scott, I'd love to hear your thoughts on what schools should be doing and how you're counseling.
Scott D. Schneider
Yeah, that's, I think you laid out really well. I mean, I don't think there's a risk-free approach here. You know, I think you hit the nail on the head. And in fact, if I recall correctly, there were EEOC, on that latter point, kind of the issue of the suits, if you do a 50-50 split. My recollection was several years ago, there were EEOC charges filed. We're basically mimicking that sort of argument. Look, I think you hit the nail on the head. There's nothing, there's very little, by the way, legislative history with respect to Title IX in general. We need to say that right up front. This certainly was not contemplated either in the crafting of the statute or the athletics-based regulations. I think there is a compelling argument that what this is, is this is compensation and there is a specific reg under the statute, which would in essence apply an equal pay act type analysis. Is there some reason other than sex to justify the difference in compensation. And by the way, you've seen this argument in the context of disputes about coach compensation and differences, obviously, between how men and women's teams coaches are compensated. Is there a factor other than sex, which warrants difference in treatment? And my argument, I think, is, there are vast differences between football players and, you know, basketball players or softball players that would warrant directing considerably more resources to football players. Whether it's revenue generation, and I understand all the controversy about that issue, risk profiles, time commitments, all that sort of stuff, and so, I think they're plausible arguments. I totally agree with you that if you make the distributions that are being announced now, author Bryant, who is a prominent and very good Title IX lawyer, will undoubtedly file those lawsuits and will have a court ultimately resolve these issues. And that's where all of this is heading, especially in the absence of legislation on this issue, all the issues you brought up. But we've talked about this in other contexts. We're in this very weird state, where our stage of our democracy, where we don't have a viable legislative branch or doesn't seem that way. And so, I'm not expecting any legislation on this issue. And so it'll be resolved in the courts and people should go into it with eyes wide open. But the suggestion that if you do a proportionate breakdown that there's no risk associated with that, I don't buy that argument either.
Gabe Feldman
I agree, which is why this is such a nightmare for college athletics administrators, because they just want to be told what they can and can't do and there is no clear answer. So a lot of it does come down to how much risk you're willing to take, what's your appetite for risk. And I will say that, it seems, that most schools, at least in the Power Four, are saying, if we're going to get sued either way, we'd rather get sued while we are putting a good football team on the field. Let’s put all our resources in football, and then we'll fight it out in court. And, like you said, we'll see what the court's saying. It wouldn't shock me if we end up getting a circuit split, if the litigation proceeds that far, and then it ends up in front of the Supreme Court. But, I think, most people who have studied this issue, approach it, I think, with the same air of caution that there's risk on both sides. It's unpredictable. We won't know the answer until the court tells us the answer. And even then, it doesn't necessarily mean it's the right answer. It's just the answer we have to deal with.
Scott D. Schneider
Yeah, and we'll get some guidance, I think, out on the West Coast with the Oregon case. You know, I was a little surprised we didn't get some declaratory judgments or challenges when the Biden administration issued its guidance, but it was revoked so quickly. Maybe that's the reason why. But yeah, very interesting issue.
Hey, can I ask one more question? There's been a lot of conversation about, look, we're now taking, you know, $20.5 million that arguably could have, you know, was going to other purposes. And there's some concern that how schools are basically going to pay for that is, they're going to pull certain programs, you know, specifically, you know, the track and field has gotten a lot of attention, certainly non-revenue generating programs. Is that the direction we're heading or are you getting another sound?
Gabe Feldman
No, I think we're headed in that direction. I think, there's a question of whether this is cause and effect or this is just a sort of cover to be able to cut sports that maybe you have wanted to cut for a long time, but it was unpopular to do it. We've already seen, as of, I think, today, 21 Olympic sports be cut at the D1 level. And that doesn't include St. Francis, who dropped from D1 to D3, which is not cutting the sports, it's reclassifying. But yes, I think lots of schools are looking at this and saying, all right, we have an additional $20.5 million, where are we going to get that from? Well, if we cut six of our Olympic sports, then we can save $20.5 million. Keep in mind that most schools and almost every school outside of the Power Four is not spending the $20.5 million. They might spend 10, they might spend six, some might spend a couple hundred thousand dollars, some aren't going to spend anything. But yes, I think the reaction has been, we have to save, we have to find new sources of revenue. So let's generate as much revenue as we possibly can. But as people have been saying for a long time, college sports doesn't have a revenue problem, it has a spending problem. That we just spend every dollar you possibly can, to try to have a winning football team. And why wouldn't you? All the incentives are in place there. But I do think Olympic sports are going to be a victim of this. And that's why you've seen a lot of rallying around those Olympic sports. And that may be the point that we can get Congress to agree on is we don't want to hurt our medal count. Our medal count is so dependent on college sports as a pipeline for our Olympians, and for Olympians across the world. A lot of people in Congress don't care about those Olympians, but that this is the real lifeline and the heart of a lot of these Olympic sports is development at the college level and access to this coaching, and if that gets hurt because football is getting more money, then yeah, think people are gonna rally around that. You and I have talked about this in the past and every time there is the possibility that an athlete's gonna get paid more money, people say, well, we're gonna have to cut sports or we're gonna have to drop down to D3. And yet, I read almost every day about a coach getting a new raise or a buyout. Think about Jimbo Fisher's buyout. Now that's an outlier, but they're paying him $75 million not to coach. And so when you talk about where we can get the 20.5 from, I have a couple of ideas of where it might come from that don't involve cutting your sports. But, ultimately, and this is the same thing with Title IX, when Title IX gets blamed for the cutting of men's Olympic sports, these are decisions that schools are making. These are priorities, and you show your priorities by how you spend. And if the school doesn't want to have volleyball or golf, I think that's a bad thing, but that's for the school to decide. I think, ultimately, we're better off with as many people playing as many different sports as possible and having it be equitable along gender lines and all other lines and having these broad-based opportunities. But if we continue down this path, I think we're going to see a lot of those opportunities lost, a lot of them cut. What more and more schools are doing rather than cut sports, because cutting sports is unpopular, is we are seeing them gut sports. So they are tiering their sports, where you have tier one is going to be football and the basketballs, tier two will be baseball and whatever else they value, then tier three will be the majority of the Olympic sports. It'll still be varsity sports, but they're going to spend a lot less money on their coaches, a lot less on their facilities, have to do it in a way that's compliant with Title IX, but they might save that money that way instead of doing the unpopular thing of completely cutting the sport.
Eric Kelderman
I think you've hit all the highlights here, Gabe. I'm looking at our list of questions and I think you've covered it all. There's one last thing we like to wrap with, which is a good thing. What's one thing you're looking forward to in the week coming ahead? And this is not necessarily just sports, but you personally. What's coming up that's good for you?
Gabe Feldman
So I have a power lifting competition that I'm in tomorrow and I'm just excited. Now I have the pleasure, one of the perks of teaching at Tulane was such an international school, international law schools. We have study abroad programs and we have one program that is in Rhodes, Greece. So I'm heading to Greece. Scott is shaking his head angrily at me, but I am heading to Rhodes on Friday to teach a bunch of law students. And so that's, I'm very excited about that.
Eric Kelderman
Scott, what about you?
Scott D. Schneider
I just finished. Yesterday was our 30th wedding anniversary.
Eric Kelderman
Congratulations, by the way.
Scott D. Schneider
We went to Vegas and had Elvis renew our vows, and I will send you some of those pictures this week.
Gabe Feldman
Is this Elvis Costello? Elvis Costello, or is this the other one?
Scott D. Schneider
The real Elvis, Elvis Presley, for the love of all that's holy. But I actually have to go to the West Coast, or get to go to the West Coast this weekend to give a speech on all the kind of crazy stuff that's going on in the compliance world and higher education. So that's where I'll be.
Eric Kelderman
Yeah, good. I'm going to go, I'm traveling as well, I'm going to go to St. Louis, Missouri for the Education Writers Association meeting next week. Get to hang out with a lot of current and mostly former Chronicle colleagues and, you know, talk shop but also schmooze a little, and then I'll be presenting there on a panel about you know all the financial challenges that higher education is facing and what to look for when if your college is about to close, and so that'll be a very interesting panel, but mostly I'll just hang out with friends and I'm looking forward to that, so.
Scott D. Schneider
Sounds like Gabe wins the weekend.
Eric Kelderman
Yeah, I think so. Yeah, that's hard to beat.
Gabe Feldman
We are all, it's not a competition.
Eric Kelderman
Have you watched the Strong Granny video, Gabe?
Gabe Feldman
No, I have not even heard of the Strong Granny video.
Eric Kelderman
There was a 90-ish year old woman, who was a power lifter and the New Yorker did a short little film about her. So you should look up Strong Granny. It's a great film. Yeah.
Gabe Feldman
I will. I will. All right. By the way, Eric, do you know, has Scott told you his nickname when he grew up in Louisiana?
Eric Kelderman
Oh my gosh, no, let's hear it.
Gabe Feldman
Well, so you know, Bobby Abare was a famous quarterback down here and they called him the Cajun Cannon because of his arm.
Eric Kelderman
Yeah.
Gabe Feldman
Scott grew up in Kenner, Louisiana and so, he was called the Kenner Cannon.
Scott D. Schneider
Very true. This is very true.
Eric Kelderman
Is that doing his arms straight or some other cannon-like ability of his?
Gabe Feldman
I don't know. I think it's just personality.
Scott D. Schneider
Shot out of a cannon. It was back in the day I had a cannon, man. But like Derek Carr, I got injured a little too soon.
Eric Kelderman
Well, we appreciate you, Gabe, and thanks for taking some time to talk with us.
Gabe Feldman
My pleasure. Glad to be on. Great to see you, guys.
Scott D. Schneider
Take care, buddy.
