There was plenty of blocking, tackling, whistle-blowing, foul calling, arguments and more this weekend at Southwestern Law School. And, no, the 100-year-old institution didn’t suddenly put together on-campus athletics. It did host the Collegiate Sports Law Symposium, at which there were at least four heated conversations on the business of amateur sports as it occurs today. Prominent experts served as panelists and visitors from all over, well, they all were ready to engage in hot debates on public perceptions of collegiate athletes, athletics and the legal issues that affect them — from preps to pros — and the complications posed by agents and the NCAA. As promised, here’s an overview of what occurred during the day-long event (which also got extensive Tweet-coverage at @biedermanblog) :
Pre-professional athletes in an amateur world: NCAA rules, state laws and extra benefits
So just how do athletes go through the alpha and omega of their amateur careers — from promising preps to highly paid and extraordinary pro athletes? And just what roles should and do coaches and sports agents play in this now controversial process? The panelists’ consensus seemed to find less fault with these parties than the NCAA and colleges and universities themselves, which caught considerable blame for failing to prepare young people about everything from the recruiting process to the real odds they have at getting to their ultimate goal of playing professional sports.
Panelist David Pump observed: “I think the coaches are looking out for their students, and, unfortunately, many people do not like how the real world is.” He noted that campuses somehow manage to scour all manner of places to find athletic recruits. But this same level of energy flags markedly in ensuring that youngsters and their parents get the information they need, as “out of every 10 recruiting meetings, usually only one meeting contains both of the kids parents.”
The panelists decried stringent but misguided NCAA regulations, such as those that make it improper to assist families with airfare and tickets to a national event, this even though students’ loved ones cannot afford otherwise to get to the now costly games.
The collegiate sports body also was criticized for its biases, with one panelist saying, the “NCAA comes to the table with the perception that the sports agent is the bad guy, when in reality, most of the people in the business are not bad, but unfortunately, the 10% of agents that are bad are the only ones who receive all the press.”
Basketball provided a focus for discussions on what happens to those athletes who aren’t “lottery” caliber and how colleges and universities must provide these students with training and information so they’re prepared to deal with potential agents, the NCAA and their prospective professional lives. “Student athletes need some information so they can ask logical questions, and [they can have] somebody to tell them that they do not need to make a decision on where to play basketball when they are 15 years old,” one panelist said.
The obligation for the NCAA and its member institutions to step up to help student athletes looms even larger because colleges, universities and the sports body rake in such huge profits from athletic events now.
Concussions, law and amateur sports: implications of emerging medical science for regulation of student athlete safety
This panel, moderated by Prof. David Fagundes from Southwestern, was straightforward, covering early- and late-term effects of brain injuries. Dr. Jason Mihalik, an assistant professor at the University of North Carolina at Chapel Hill in the Department of Exercise and Sports Science, provided a detailed, powerful presentation on concussions — how they occur, their effects and the importance of reporting any of their symptoms, as well as why so many athletes, especially the young, fail to do so.
He also addressed second impact syndrome — when athletes suffer a second head injury before symptoms of their first have disappeared. He delved into what he termed myths as to whether protective gear can reduce or eliminate the risk of a head injury; it performs poorly, he noted, in cutting concussion risks. He also explained that preteens who play contact sports are at the biggest risk for sustaining multiple head injuries. He urged parents, coaches and other non-medical professionals to step up to understand trauma risks and to put children’s lives, not athletic accomplishment, at the fore of their concern.
Daniel Lazaroff, a law professor who heads Loyola law school’s Sports Law Institute, discussed the legal implications of Mihalik’s medical briefing, noting that, with contact sports, some states have established a recklessness standard for tort liability. He said the “relevance of this medical evidence has an impact on coaches, doctors, and others, on whether these acts or failures to act can be labeled sufficiently culpable to find somebody liable under a recklessness theory.”
Because pro players in contact sports like football are taking in the medical evidence on the harm caused by the trauma, those players who inflict head injuries on others in their game could be more likely in court to be found reckless, rather than negligent by a trier of fact in court. The panel praised protocols adopted by the NHL and urged those who participate and oversee contact sports at all levels take immediate steps to protect athletes from head trauma.
Big brands and bigger budgets: marketing, merchandising and media rights in college sports
The big question poised in this panel discussion: “Who should hold collegiate players’ rights to their name and likeness, the NCAA or the players?” The discussion cut to the core of a pending U.S. Ninth Circuit Court of Appeals case. In that litigation, Sam Keller, a onetime star college quarterback, has sued EA Sports and the NCAA, arguing they owe him and other former collegiate athletes royalties for using their images and likeness in the popular EA Sports NCAA football game.
This discussion turned heated with panelists Alonzo Wickers IV, a partner at Davis Wright Tremaine, and Stuart Paynter of the Paynter Law firmdisputing how parties might seek to divide revenue streams and how to justify any allocations, for example, paying a starting quarterback at one college but a backup hockey goalie at another school. The participants disagreed sharply as to whether NCAA athletes, in exchange for playing collegiate sports, can sign away their rights and for what duration any licensing agreement might cover them.
The BCS and competition: an antitrust analysis of college football’s Bowl Championship Series
This, by far, proved to be the most heated debate of the day — and it probably was good that one side participated, live, via Skype teleconferencing, and not in the same room as their opponents.
William Monts III, a partner at Hogan Lovells, argued in favor of the BCS and discussed why he sees no antitrust in the current collegiate playoff arrangement. Regardless the structure of those playoffs, it requires an agreement among all parties, he said, and the reason the BCS employs a system with six automatic qualifying conferences is to ensure they participate. “If the cooperation that the BCS has with these conferences was unlawful, then the courts would do something about it,” he said.
Allen Fishel, a partner at Arent Fox, argued what might be a “plaintiffs’ ” side of this discussion, asserting with emotional force his belief that the current BCS system violates antitrust regulations. He offered reasons why competitors cannot enter into proposed market restraints, including that the BCS effectively eliminates half of the NCAA football teams before the season even begins.
The advocates also examined not only football but also basketball at the collegiate level and took note of the substantial independent third-party demand for a playoff system; both sides gave compelling arguments as to whether colleges and universities should adopt for football the basketball tournament bracket set-up and whether the BCS provides an actual championship game.
During Friday’s session, a not-to-be-missed programming element became the hour-long lunch chat between Jeff Fellenzer of USC with Jim Harrick, the coach who led the Bruins to a 1995 NCAA basketball championship. Harrick regaled the admiring audience with his jokes, inspiring stories and powerful voice that kept the attention rapt in the room.