(Editor’s Note: What follows is Part Two of an edited transcript of a panel discussion that took place four weeks ago at the Sports Lawyers Association meeting in Chicago. Warren Zola, Executive Director of the Carroll School of Management, Boston College, moderated the discussion, which featured, among others Matt Mitten, Director of the National Sports Law Institute at Marquette University, Donald Remy, Chief Legal Officer for the NCAA, and Gary Roberts, former dean at the Indian University School of Law and the country’s foremost expert of antitrust issues as they relate to the sports industry. Other speakers were Tim Epstein, a partner with Smith Amundsen, and Marc Isenberg, an author of various sports law books.)
Zola asked, ‘Is there an opportunity for meaningful change?’
Donald Remy
“Gary (Roberts) has tried to bring us back to the Jenkins case over and over. He rightly has pointed out that that is the case that goes to the core of the collegiate athletics model, which has existed in this country for now over 100 years. The challenge there is one that says the product that you are providing to the marketplace is no longer legitimate and needs to be changed. So while the Jenkins case is in early stages, it is something that we have to look at and say we are here to preserve the collegiate model for the betterment of the student athlete. That is not a case where many are talking about a settlement.”
Matt Mitten
“I think the key is to provide some economic incentives, particularly for football players and basketball players to stay in school. The odds are very small that these student athletes are going to make it as professionals. For example, have four or five year scholarships that are subject to renewal on a yearly basis, unless they aren’t meeting academic requirements. If we are going to take some of the money from video games and broadcasting, distribute to the student athletes as long as they get their degree.”
Question from audience about why the NCAA has not made changes quicker:
Remy
“It’s not a choice not to do that as much as there is a process to get there. The association has been going through that process for several years. And as we work through this new governance structure, it is fair to say that it will free up some of the membership to do more for the student athlete with the resources that they have.”
Mitten
“The key is that it is a membership organization, and you have the power five conferences, which is roughly 60 schools of the 1,000 plus members, all of which have different economic interests. So it is very difficult to get them all on the same page. That’s been the problems. There’s just too much money there.”
Gary Roberts
“And I would add that in some ways there’s an irony here in that on the one hand we want to do more for the exploited, and I use the term in a non-pejorative way, or those kids that are falling through the cracks. But if we turn the 65 schools that can afford to do it, it makes them look even more like a big-time commercial enterprise because we are divorcing them from the academic side of the NCAA.
“The NCAA today is a very cumbersome animal. It’s like turning a battleship. It’s really like turning a battleship that has been beached.”
David Cornwell, a partner in the Sports, Media and Entertainment practice at Gordon & Rees, asks a question about having a system called the student athlete trust, where the amount of money that the athletic department is entitled to keep for athletic purposes is tied to the graduation rate of its student athletes. You graduate 55 percent, you get 55 percent of the revenues. That’s my proposal. What’s yours, with the understanding that you can’t keep the current system?
Remy
“The current system, as we have talked about today, is in need of modification in all areas, including education …”
Cornwell
“Listen I’m sorry to interrupt, but I’ve heard that part of the answer already today. What I am asking you is tell me now what the system is that today you would put in place?”
Remy
“Part of the premise of your question was with respect to graduation rates. And one of the things that is important to remember is there is no institution in the nation that graduates 100 percent of the people that matriculate through that school. When you look at graduation rates as calculated by the federal government, you will find that student athletes graduate as a whole at a greater rate than the general student population. What that tells you is that athletics is a considerable part of the academic endeavor as that student athlete matriculates through that institution.
“I’m not saying it is perfect. I’m not saying there is not room for improvement. No school should fail a student athlete. At the same time, that student athlete should put in a similar effort to try to make sure that they are educated.”
Cornwell
“I understand there are strengths and weaknesses in the current system, and I don’t want to be rude, but the premise of the question is you cannot keep the current system.”
Remy
“In what area?”
Cornwell
“Let’s focus on football and basketball.”
Remy
“No, but I mean in what area of improvement?”
Cornwell
“Wherever you think improvement is necessary.”
Remy
“Well there are a lot of different areas where improvement is necessary. I certainly don’t want to take up all the time and talk through those issues…”
Cornwell
“We’ll give you three minutes.”
Remy
“Unfortunately, you are not the moderator, he is (pointing to Zola).”
