Ep. 107: College Sports Contract Madness, NCAA Eligibility Battles, and More with Darren Heitner (aka the Lawyer who is Probably Representing or Working with Your Favorite College Athlete)

Ah. Welcome to Sports Wives, a podcast about sports in the law with your host me, Gabe Feldman, director of the Tulane Sports Law Program, and co-director of the Tulane Center for Sports. On this episode, I'm joined by Darren Hener, the lawyer who has probably been involved in more college sports and NIL matters than anyone outside of the NCAA. In the country, including his current representation of Duke or maybe not Duke quarterback, Darien Menon. Darren joins to talk about college revenue sharing and NIL deals, lawsuits, challenging the NCAA transfer rules and eligibility restrictions, and much, much more. Here we go. Welcome to the podcast, Darren Hener. Thanks so much for coming on. Thanks so much for having me. All right. I'm jealous of the, looks like the sunny breeze behind you. The rest of the country, including New Orleans is stuck in ice and snow and cold, but, let's talk about, I, I thought I'd have you come on to talk about your favorite movies and maybe some of your favorite books, but you have been I think it's fair to say, front and center in many of the biggest issues facing college sports right now at the D one level with respect to eligibility and transfers and NIL contracts. And you've been very open about a lot of the issues you're dealing with both in your newsletter and on social media. I wanna talk about some of that in a bit, but maybe help us understand with respect to these rev share deals or NIL contracts or just the money that's being spent by the institutions directly to the athletes where the schools are paying the athletes pursuant to the house settlement. Can you tell us what in general, I know it varies, but in general those contracts look like, and what are the, some of the key terms. First of all, since you asked favorite movie is Billy Madison and favorite book is Atlas Shrugged. So I'm really on both ends of the spectrum there. All right. I look at that crossover. It'd be a great network if Billy Madison lived in Atlas Shrugged. The revenue share money, which is currently capped at $20.5 million and is supposed to rise year after year over a 10 year settlement in the house. B NCAA settlement is supposed to be used by the athletic departments across all sports and does not have to be applied for each sport. It's just that is the technical cap that is supposed to be spread across. And what we've seen generally, and it does vary school to school, but the vast majority of that money is being applied for football players followed by men's basketball players. Followed by typically women's basketball players and then sometimes it trickles down to baseball players or in some CIR circumstances, women's volleyball players, et cetera. But what we find are that these monies are transferred or promised to players by way of what are commonly referred to as NIL license agreements. And schools do title them differently school to school, and sometimes conference by conference. And in fact, when we look at it from a conference standpoint, there's one in particular that has taken a very strong position, that being the Big 10, that has actually drafted a template at the conference level, that it has pushed to its member institutions. And this has been the case over the past couple of years. Last year, most schools adopted a form of that agreement this year. All of them, from my perspective, have and. This cycle. I'd say I've reviewed roughly 40 to 45 deals in the space over the span of December to January, which is a lot of work, obviously, and many of them within the Big 10. And if we're focusing on that specific document to start, what's very interesting about it, if you look at it a year ago, it went out of its way to indicate that the payments that are being made to players are not payments for play. This year there was actually an addition to that, which is that the deals are also not to be construed as service contracts. Whereas if you look at some other schools' contracts outside of the Big 10, they actually do ask for players to provide services outside of simply providing a grant of a license to the institution. But that is almost always the first and paramount section of these agreements, which is a licensed grant to the institution that. Oftentimes has third party beneficiaries, including the NCAA, the conference. And this year we're even seeing the College Sports Commission included as a third party beneficiary in various respects, sometimes even including the grant of the license. And key parts of that, you get into, obviously there's the one sided originally and they're drafted by the institution. So you commonly see the license being irrevocable oftentimes exclusive and that it's sub licensable and oftentimes without any consent required by the athletes or any of the licensing use or even the sublicensing. And this can obviously pose issues if there's conflicts between. The sublicensing end deals that the athletes are doing on their own or through their agents. But interestingly, even in this go around, we're seeing a lot of contracts allow the schools to license it to agents, and that includes multimedia rights folders but oftentimes isn't limited to that. And a lot of these deals that are passed on to me are passed on through agents, and that's oftentimes a concern of mine, which is if we're providing these rights to third parties to try to procure opportunities for these players. What about the agents who have actually signed exclusive representation agreements? With those players outside of the grant of license, big Yeah, go ahead. Yeah, on that lemme just pause on that for a second. 'cause there's a lot there. And I just want to clarify something about why or maybe e emphasize why these contracts have become tricky and why the issues in the lawsuits may become tricky is under the house settlement as you said, the schools are now permitted, not required, but permitted to pay up to this year, 20.5 million ish, 22% of this defined set of revenue. But the NCAA made pretty clear throughout the house settlement and the approval hearings that this is not pay for play. This is a share of the revenue that the schools generate that can be distributed directly to the athletes and the schools can do third party NIL deals that are not subject to the cap. And then the really a question that was raised was, all right, if a school decides I'm gonna pay a million dollars to my quarterback as part of that $20.5 million and I'm gonna enter into a contract with them, what are the terms of that contract? And it sounds like what you're saying, at least for the Big 10, it's styled as an NIL deal where it's a grant of a licensed to use the athletes' NIL by the school and then by there anyone who license it from them. But that it's it's really passive. It's just we get to use your name image, like you don't have to do anything. And then there are these other schools that require services to be performed, but those services are not the playing of the game. Those services are doing an NIL appearance or doing an endorsement, not an endorsement deal, but making an appearance, signing autographs. Is that all correct? That's accurate. And in theory, that's what these are, they're NIL license agreements, or in the case that a school is asking for some services it's not supposed to be paid for play. And that's certainly the intention of these schools and at least the Big 10 conference. And that's why they're titling the agreements as such, and including the grant of license as section one. But when you read between the lines, they can only go so far because despite saying that there's no pay for play. When you have language that includes things like there has to be good standing or not even that definition, but otherwise saying that an athlete has to be, let's say, on the roster. So then what does it really matter? Obviously it's not just the grant of license there, but if you can revoke having to make payments, or let's say if a player transfers to another institution or stops playing altogether that there's a clawback mechanism or what they oftentimes refer to as liquidated damages that I think any lawyer looking at it plainly would question whether they're actually intended to be a reasonable estimation of the damages or a penalty intended to restrict movement from one school to another. That's where you get into the weeds and I think you have to ask a lot of questions. And interestingly I recently had a hearing in front of a judge in Florida. On in eligibility matter concerning Dr. Bradley, who was the swac defensive player of the year preseason defensive player of the year going into this season but was denied EL an extra year of eligibility. And during the course of a two day evidentiary hearing we started to get into the weeds of these NIL agreements and the judge asked a question along the lines of, aren't these supposed to be NIL agreements? And, I talked about how there are all these other requirements involved that make them seem like employment agreements. And he even said, oh, so it's like wink, wink, these are NIL agreements. And he is what are we waiting for? And I said, probably a judge to, in sitting in your chair to make a determination. And so when you look at these documents, again, you look at the title and it says NIL license agreement. You look at the grant of rights, but when you read through the document, you look at the various. Options for the school, oftentimes in its sole discretion to be able to terminate, to be able to invoke liquidated damages, to be able to invoke clawbacks. And not for any breach of the license. Not for failure necessarily to perform any of the non play services, but because they actually want to perform for another institution. You have to question what really is this document all about? And then let, I want to get into, and again you are. Representing some folks including Darien Mensa, who are involved in active litigation. So I'm not gonna ask you about the active litigation. But so anything we're talking about is gonna be either broader than that or maybe a case that's already been resolved. But but again, not asking you to speak about that specific case. But if you take it outta the college sports context and let's say put it in pro sports or put it in acting, if you have an actor who is the star of pluribus, right? One of the big news shows. Great show that's out there. Yeah. I'm only on episode three, so no spoilers. But if you have R Seehorn, who's the star actress in that show. And Haynes says, we wanna assign you RIA to a endorsement deal because of your success on Pluribus. And better call Saul and you become a star. And we're gonna pay a million dollars a year as long as you're still on the show. But if the show gets canceled or you get fired we're not gonna pay you anymore to promote our product because the value in your NIL will have decreased significantly. Because even though we're not paying you to act, we're paying you based on the fame you have received or continue to receive because you're acting. And so there, I think we would say that's not, doesn't have to be an employment agreement, that could be a regular endorsement deal that is contingent on a continued level of success. And so that maybe the teams, the college teams are thinking the same thing that. If they're not on our team, they're, if they're not playing at the same level, they're not as valuable to us. So we're not gonna pay you or we're gonna pay you less. But what seems to be different than what Hanes and r Seehorn, I don't think they actually have a deal, but, if they do form a deal because of this, great. But what's clearly not happening there with Vince Gilligan and his team is saying, we are trying to prevent you from going to work for another show. That's right. And that appears to be. From all illustrations we've had and from the a hundred years of history, that's what the schools are trying to actually accomplish is saying, we want to pay you for whatever it is, we'll call it your NIL, but really we want you to be here playing and we don't want you to go somewhere else and play. And if you do go somewhere else in play, it's, we can argue maybe your NIL is not worth as much to us, which I think most people would agree that if you are a Syracuse athlete and then you go transfer to Cal that it's not as valuable to Syracuse or the, your image is not gonna be as valuable in Syracuse itself. But so what, so tell me then what's wrong with how the schools are going about this. From your mind, even if their end goal is not unreasonable, that they want a player to play for them and not be able to leave in the middle of their contract and go play somewhere else. What is problematic with the way that it's being handled now from your perspective? I'm glad you added that at the end because I think from a normative standpoint, it's responsible and expected to believe that schools that are investing a lot of money in players want to do whatever they can to retain their services and not have them leave. We've seen instances even where an athlete will sign a contract and not even get paid any money on that contract yet there's a liquidated damages clause that may say that the athlete owes up to even a hundred percent of the amount of money that was promised to the player. So think about that for a second. The player receives $0, may be signed for three days, decided, you know what? This is not gonna work for me, and the school wants a million dollars because that's what's been promised to the player and there's no equity in that. It's hard to rationalize that, and we haven't seen a lot of cases that have developed and escalated. For a good reason. I think if push comes to shove, those are gonna be very difficult to defend as actual liquidated damages. As opposed to penalty clauses. But the other issue is, last year your question channeled some memories for me. Last year, in some contracts we would even see language that said schools in their sole discretion could actually change the amount of compensation that was allegedly guaranteed to players and reduce the amount of compensation to be paid to the players because of a perception or belief that the value of their NIL decreased as a result of their poor or lack of on field performance, which I thought was quite interesting. I haven't seen that in, in this year's cycle. Yeah. But we, you, you get to this issue of these look and feel like employment agreements with. Real restrictive covenants that normally in such a circumstance if challenged, you would have to look at whether there's legitimate business interests to enforce those restrictive covenants to prevent movement of players. And certainly different states look at those types of restrictions differently. If you look at a state like California that's been very pro movement, I think it would be extremely difficult for any of these institutions to enforce. Whereas my home state of Florida is a bit more employer friendly. But you still have to, as the employer justify any sort of restriction by showing legitimate business interests. And then also that the restriction is reasonable from a time scope and geography basis and. From my perspective in looking at these clauses, which again, may not overtly state that they are restrictive covenants or non-competes they have the ultimate consequence of serving in that type of capacity when a player has to buy out of the contract in order to freely move from one school to another. And I, I think one thing that's also missed in a lot of these conversations is at the end of the day, we're still talking about students. I try not to use the term student athlete because I don't like it's connotation, but they are students, they are seeking an education and looking oftentimes to graduate or get a postgraduate degree. And so I think there's also this oddity in this process, which is we're not only talking about restricting athletes from moving school to. Play their sport of choice, but we're also potentially impeding their choice on where to receive an education. And I don't, to my knowledge, that hasn't yet been tested in a court of law, but I imagine at some point it will be. And it seems like the way that some of these cases are playing out is that if it is truly an NIL deal, and you're paying for the athlete's the rights to use their name, image, and likeness, and whether it's a commercial or whatever the case may be, or a poster and then the athlete decides they want to go play for a different school, and the school argues we've now been damaged or you shouldn't be able to go or this is the harm we've suffered. Where a again, if you go back to my analogy of Hanes and rhe Seehorn, that if she decided she wanted to. Leave her show and go to a different show. Haynes couldn't stop her from going to that other show, and they may able to say, we're not gonna pay you anymore under the contract. But if they're not paying her to act, but paying her for the value that is acting has generated an then that's a totally different story than what's going on here with college sports. And that's a very interesting component of this as well, because you're starting to see in some contracts the introduction of injunctive relief, right? And in order to, you could put a clause in any agreement where the parties agree that one may or shall have the right to enjoin another and even have the parties. Acknowledge or represent that there's irreparable harm, but you still have to go through that process in a court of law and ultimately prove that. And so there, there's two components of that, which is one, like if there is a way to be compensated by way of monetary damages, then what is the irreparable harm that would serve as the justification? And there's other elements, obviously public policy, weighing of the harms, et cetera. But and likelihood of success on the merits. But if you can't establish irreparable harm, I think the analysis just folds right there, right then and there. And so the other thing is when you're looking at damages, unless they are specified by way of let's say a liquidated damages clause. And even if you have that, how do you actually justify what those damages are? If they are licensed agreements, which. The schools are bending over backwards to say that they are obviously to avoid any implication of employment. And in fact, oftentimes there's clauses in bold and italicized saying this is not an employment agreement. And if it, if they're deemed employees, then you know, everything's off the table. We're not paying you anything. But what are the monetary damages if, let's say an athlete goes from one school to another and the license is somehow interfered with, I think it would be really interesting to have an institution perhaps through an expert witness, try to explain what those damages are and how to quantify them. Particularly because, as broadcast NIL is not a part of this equation, right? You really can't preclude an athlete from playing for another institution unless a court says so, and then have those games broadcast because that's outside of this equation where the license is being granted. So what exactly is the license and what is the monetary component of that license? Is it the jersey sales that contain the athlete's last name on the back? Is it some sort of memorabilia? But again, it doesn't seem like the quantification of that would be astronomical. And then even if it's. Even if it is astronomical, it's damages, it's an amount. And to your point, then you wouldn't get a specific performance or you wouldn't get the injunction to not allow the athlete to go play somewhere else because all right, school, you get paid X amount to make up for the money you've lost from your licensing opportunities, whatever else it was that you plan to do at that athlete's money. Again, going back to the point of whether I'm not suggesting that these contracts should be read one way or another, but it certainly seems like from the outside that the goal of a lot of these contracts is to lock a player in. I don't mean lock like we used to lock a player in without any money, but to pay an athlete a certain amount of money to play at that school for one year, for maybe two years. And the school will now pay the athlete that amount of money. And the expectation is the athlete will stay there. And then if they do leave, then we might have a breach of contract situation. And there not to say that the athlete has to stay, but if they do leave, then it would look more like what we're seeing with the coaching contract situations where potentially someone could sue for an injunction. But what would most likely happen is we see these buyouts either buyouts under the contract or there's a negotiated settlement. Do you see that, can you talk a little bit about the Williams case in, in, in Washington where you were able to, without getting into the details of the settlement? Yeah, but we were headed towards a a lawsuit or potentially some judicial involvement before you stepped in. That's right. And to be clear, there was no settlement because there was no escalation. We were able to resolve that. Free suit. And I don't even recall that there was any real threat of litigation. But demon Williams is a very interesting set of circumstances where everything as is typical in this space moved very quickly. And I recall, and it was a few weeks ago, but I had been contacted by his agent at the time Doug Hendrickson of Wasserman, who had indicated that there was a situation that was developing and it, he was going recommend me to demand and the family. And what had happened that week, I believe it was on a Tuesday, that demand had published on his Instagram a message that ultimately stated he was going to move on from Washington. And he did so before ever putting his name. Having his name entered into the transfer portal. And ultimately, as we've actually seen from a few Big 10 schools in particular thus far Washington was determined to not put him in the portal. And here's another area where we could potentially see some litigation in the future because the Big 10 and some other contracts actually caused the player to covenant that, that he's waiving the right to have his name be put in the T transfer portal. The NCAA bylaws require all member institutions to insert a player's name into the transfer portal within 48 business hours of that athlete completing this academic exercise and asking to be put in. One. Important question is whether these institutions that are voluntary members of the NCAA can separately contract around the bylaws, which I had really never heard of before until this particular issue or any schools trying to do but I will tell you, Washington is not alone in terms of schools this cycle that have taken a very strong position, which is that if a player contracts that he's waiving that right to be put in the portal, we're not gonna put you in the portal. And in fact, a year prior I dealt with an issue with Xavier Lucas, who at the time was a defensive back at Wisconsin, asked to be put in the portal was not placed in. And we found a resolution by way of Unenrolling from Wisconsin and enrolling at University of Miami. But with Dimond it was really interesting because he had put, he had set this whole issue in motion when he published that post on Instagram and. Firstly, it never needed to be published. I've heard speculation as to why it occurred, but I remember it was that we, the following day, Wednesday night, that I had actually connected with the family and then ultimately was retained on Thursday. And there were a lot of different issues at play. One of which perhaps the most important was there was a deadline on enrollment for the spring at Washington. And, when I was retained, there was an intention to leave and go to another institution. And I took a step back. Reviewed everything that was executed. Had a lot of very important conversations with the family, with Damon. Put a lot in writing for them to consider as to the positives and negatives of going to another institution, which would probably be by way of unenrolling and enrolling as we had done with Xavier Lucas. And that's probably why also I came recommended, given that I had gone through that process before. But also I thought it was important to distinguish between what we had gone through with Xavier Lucas, where we had some time to consider the situation and also felt quite comfortable with what we were doing as opposed to in this situation where there were a lot of unknowns. But at the same time, unlike with Xavier, where we didn't feel very comfortable with Wisconsin and he was destined to leave, Washington really showed, a passion for demand and that they were really interested in having him back and how much they expressed how much they value him and would work with bringing him back into the fold. The complicate things, the timing of his Instagram post couldn't have been worse because it was at the same time that there was a service for a player, a so a women's soccer player who had unfortunately passed away. And so we looked at everything and I'm thrilled. The family's thrilled at this point that he decided to go back. He's acclimating back into the, into Washington and we were able to avoid what ultimately could have been escalation in that matter, whether it be, Washington against demand for. An allegation of breaching the contract. And it could have put to test that liquidated damages clause that we talked about before, as well as a possibility that Washington would've gone after any school that he would've ultimately enrolled at for I know we oftentimes hear the word tampering in the college sports space. That's not really a cause of action for tampering, but perhaps tortious interference. And then, so on, on that note, a couple of questions. One is, you've talked a lot about this and you helped implement this with Xavier Lucas, but can you just clarify for people what the transfer portal means in terms of athlete movement and what it doesn't mean? Because you've said publicly many times you can switch schools without going through the transfer portal. So can you explain how all that works together? And it was actually one of the more interesting moments of my career when we put it in motion, and I think it was Ross Dellinger who had contacted the NCAA to get confirmation that this was okay. And the NCAA actually came out with a statement saying, yeah there's nothing, there's no rule against unrolling and enrolling elsewhere. So we, we felt super comfortable with that. I learned a lot about the transfer portal through that process. I learned it's actually just a piece of technology that was created. And that is actually not even run or operated or controlled by the NCAA. It's managed by compliance officers around the country. And in fact when I was dealing with the Xavier Lucas issue and we had drafted a complaint and a motion for preliminary injunction to file against the NCAA and Washington before coming up with this creative solution I had obviously said something to counsel at the NC can't you do anything about this? You have a rule in your bylaws that specifically states that you must, that a school must put a player in the portal within 48 business hours. And the NCAA's response was, it's our rule, but we actually can't require a school to do it. And the only thing that we can do is take retroactive action against the school and punish them. Which to this date to my knowledge, Wisconsin has not been punished at all for not putting him into the portal. And I think that's. Honestly empowered a lot of other schools in this cycle to do the same and threaten players that they would not put them in the portal. I was involved in many circumstances where athletes asked to be put in the portal. They were not, and we negotiated buyouts with schools as a result of that because they also just didn't want to deal with the escalation in everything that comes from it, but, yeah, the portal is simply just a piece of technology. And importantly, the importance of it is that under the NCAA bylaws, if they are to be deemed enforced and enforceable they technically restrict other schools from having communications with players unless they go through that portal process. So the caveat is, obviously if the player knows where he wants to go and oftentimes even with the portal players attach what are called do not contact tags. So players oftentimes know where they wish to go, and in those circumstances. In my estimation, the portal's sort of meaningless right now, at least for football. It coincides oftentimes with when a player would enroll at the next institution. And that's something for anyone to be cognizant of because the Unenroll enroll concept doesn't work all that great. If, let's say you're doing it in the middle of the spring semester with the hope that you'll be able to practice with the team and even if you don't necessarily know where you want to go, in theory, if you are a top. Player at whatever position you are and you decide to unenroll at that point, I imagine some coaches will find you or some GMs will find you and say, Hey, let's talk that you might hear at least that there's going to be some competition for your services. So the transfer portal, again, even if you're undecided, even if you don't have a sense of where you're gonna go or have had a, not have had a coach reach out to you it still might be an alternative to the transfer portal at any point. And the enrollment unenrolling is one thing. As you said, you then have to worry about enrolling somewhere else. And if you can't do that in time, then that kind of defeats the purpose, or at least for that season or that semester. There's the difference between rules and reality. And even when players go through the transfer portal, how many times do you think those top players that you're referring to had no conversations either directly or through their agents prior to the portal opening? Which right. Technically is the same violation as Unenrolling and enrolling and having those conversations with GMs or other individuals attached or associated with the institutions that, that's the thing. We could have a whole separate conversation about enforcement. I referenced the fact that it's very clear Wisconsin last year violated the bylaws. Nothing happened to Wisconsin. It's very clear that on a daily basis there's violations of these bylaws based on conversations that are occurring with players that are not in the portal and other institutions, nothing happens as a result of that, it's very clear on the CSC side that many deals are going unreported and that many deals are being paid out even though they may not be cleared by the CS. C. What's gonna be done about that? And the, maybe the biggest problem is, there's an intent to have all these rules serve as deterrence, but at the same time, obviously you can't have deterrence without enforcement. But then if you have enforcement, what are you gonna have litigation? And so it's a catch 22 for the NCAA, it's a catch 22 for the CSCI don't, I don't envy the position that they find themselves in, whether it's with respect to NIL or an equitable treatment of individuals who are seeking additional years of eligibility. But at the same time, this is the consequence of sitting on their hands for decades. And I wanna get into the eligibility in a second, but for the. You mentioned CSCI, I wanted to talk a little bit about, 'cause you've spoken about this too, the what CSC is trying to do and what they've been able to do and what they reported. With, again, the goal being that there is that 20.5 million for this year that the schools can pay directly. Doesn't have to be for a valid business purpose, doesn't have to be fair market value. You can just pay it. It just is capped. And then there are the NIL deals that as long as they are for legitimate business purpose, which has been debated and for fair market value, which will continue to be debated the athlete can do it without subject any cap. So that doesn't go into that $20.5 million. But part of what the CSC is designed to do, was created to do, is to make sure. That those NIL deals aren't being used as a way to circumvent that $20.5 million cap, has allegedly reportedly is being investigated right now with Kawhi Leonard in the NBA. And is a basic feature of every collective bargaining agreement and salary cap and anti circumvention provision. We don't have a salary cap collectively bargained here. We have it as a result of the house settlement. So that's, again, going back to your point that the NCAA is in a catch 22, that they're trying to enforce rules that they think are necessary like pro sports do, but they're doing it without any antitrust protection so they can continually get sued and now they're also getting sued under contract law. But. The other piece of this that, that you've talked about recently is the multimedia rights deals and how a school, whatever school it is, I'm not gonna pick on a particular school, but a school says to their star quarterback we know, or the high school quarterback, we are gonna pay you $5 million. And we, we promise you we'll pay you $5 million. Now, 3 million of that, let's say, might come from their rev share and they contract for that in that license deal. 2 million might be them saying, we are gonna get fined third party deals for you. And then this is where the MMR partners come in. So can you talk a little bit about what you've seen and some of the language that you've come across? It's the comedy of all of this, right? You have to ask, so who really wanted the provisions in the house settlement that would create an artificial cap? That, to my knowledge, has not been legally challenged to date, but is probably gonna be challenged at some point because it wasn't collectively bargained with the athletes that are intended to be restricted in terms of the amounts that they can make. But you would assume that this was. Negotiated on behalf of the member institutions and particularly those with power and who has more power than the members of the SEC and the Big 10. Yet those are the same institutions that are either still using collectives to try to again, go above the cap and are utilizing interesting mechanisms in, in order to try to establish that fair market value and legitimate business purposes or what the new technique that we're finding this cycle is exactly what you mentioned, the use of multimedia rights partners and the biggest one being Learfield. But there are others, and when you look at these documents they're structured as letters of interest and very clearly not intended to be guarantees of any amount of money to athletes, but. They specify an actual amount that is intended to be provided to that athlete through third party deals that they would be able to curate with an approximation on that number. And by the way, it's not going to be difficult for any of these M-M-R-M-M-R partners to establish those deals because if you think about it, the money's there when they're doing these deals, whether it actually be money that the third party's real brands will pay out or that the boosters will supply. And then, so worst case scenario, let's say they can't find the brands that want to come out of pocket to pay for the rights of those athletes. All they'll do is get the money from the individuals, the boosters who will provide it, and then essentially go to the brands and say, look at this amazing deal I have for you. I'm going to either give you these benefits for free or at a greatly reduced price from what you would normally pay, because there's still the appetite to go beyond the cap and pay extra dollars. What's happened though, is that practically all these big schools are, have adopted this policy and strategy, and yet the same question comes out. Okay, so these are the people and institutions that wanted the cap and the house settlement. They're also the people behind the College Sports Commission because the College Sports Commission is paid for by the NCAA, by the conferences, and by the schools that opted into the house settlement. So in theory, this is a creation that they want, but. They're doing this on one hand with these MMR partners, and on the other hand, here comes the CSC that is saying, take a step back, but pause because we're looking at these documents and you can't warehouse rights, which is what you're doing by way of these MMR deals. And so we're gonna count these against the cap, which would honestly make every single large institution immediately be in circumvention of the cap. I don't know. We're talking right now in such an interesting time because I don't know what the fallout's gonna be about in all this. What is the CSC going to do? It's going to in concert with the NCA penalized every major institution throughout these major conferences. I don't see it. If that happens, they're gonna break away. So going back to a comment I made before, it just seems like one cluster of a catch 22. It also does seem if those deals are rejected, right? If the CSC says no, you can't have that MMR money be warehoused and then spent on the athletes as if it's guarantee, that seems like it's, if anything's gonna lead to another lawsuit, it would be that. Because whether you are the school who, even if you've signed a participation agreement, even if you don't have standing to sue, the athlete can sue. 'cause they've settled. The third party hasn't, is not a party to the settlement. So they could be the ones to sue to say, I don't care what the school's agreed to with the athletes. I wanna spend my money where I wanna spend my money. And Dave the skeletons and the closets that will come out because. In these conversations, you have general managers of the schools and other individuals employed by the schools who are sending out the package of NIL documents, including the MMR and essentially, if not expressly, but at least impliedly, representing to the players that this, these are monies that they will receive. Even if it's not a contractual claim, at a minimum, it seems like it's a strong promissory estoppel claim because you have athletes that are relying on these promises that they're going to receive these monies, and if all of a sudden all of these deals are void, it's, it could be a class action. Yeah. Yeah. And then I've already kept you longer than I said it would, but I have one more topic I want to, I wanna touch on with you. But before we get there, if you are a high school football star, let's say the number one quarterback or number two quarterback in, in a fictional world, right? The real world, but a fictional person and they are not represented by you, they're not receiving advice from you. So they're out there on their own and let's say they don't care about the NCAA rules, they don't care about potentially being declared ineligible. They want that. They want to get as much money as they possibly can in one year, and they don't care where it comes from. What do you think realistically is a ballpark number that a high school football. Quarterback star who's being heavily recruited by these SEC Big 10. And again, not picking on any particular school, but given all the different ways of paying these athletes that you've talked about, which include these MMR deals, the direct payment, third party NIL deals, and maybe even some under the table money, how much do you think if they wanted to push the envelope the star high school F football quarterback could get for one year from one of these schools? To be clear we're assuming it's the number one high school quarterback in the country. Yeah. Yeah. Number one or number two. Yeah. Top one of the very sought after top. At the top. At the top. I would say conservatively 3 million or more. 3 million annually. Yeah. But, and how much do you think of that would come from the school? The answer to that really depends because they have to manage the cat. And so it depends on how much cat space that they have remaining. And when their fiscal year. Recycles and how they can structure those payments from a timing perspective. So there's actually quite a bit that goes into it, which there's a reason why there's a justification of many other reasons why there should be GMs in the space. Yeah. But it's hard to say what the breakdown would be because there's so many different factors that would go into it. But So you think if they get a million from the school, you think they'd then only get another 2 million from the NAL deals and under the table deals, I'm saying conservatively I actually think it would be more than 3 million. I would say it's probably 4 million or north of that now. Yeah. But I just, I'd, I know we're speaking on the record. Yeah. Hypothetic. I get it. I get it. I'd rather be conservative. Yeah. Yeah. Okay. Last. General question with the athlete eligibility cases the rule that's been on the books for a very long time, that you have five years to play, four seasons now being challenged by multiple athletes in primarily football and basketball, but other sports as well. And you are representing Charles Beko, as I understand it, it represented some other athletes. Can you explain and it's complicated because it's really, I think in some ways started with college hockey, where performer, professional hockey players were allowed to. Maintain their eligibility to play collegiately because of a, an antitrust lawsuit. And then it turns out that a lot of European players who were playing professionally in basketball were given eligibility to play in the us And the rule has always been that you can't be a professional and then maintain your eligibility unless you're only being paid your necessary and actual expenses. So it's not really a payment, it's just allowing you to play that sport. The NCAA seems to have softened those rules a bit. And then the next. Step was if a European player can do it, why can't an American player, why can't a player playing in the G League or potentially the NBA And it, it's gotten now where we have lots of lawsuits, we have Beko playing on, was it Saturday or Sunday? I forget which day it was. And there are a lot of people saying wait a minute. If there's one thing many of us can agree on is that college athletes should be college athletes. And we don't want a 38-year-old student playing football against 19 year olds. And the NCAA has said, we're trying to put limits in. But every time we make an exception, it then gets sued to make the exception greater and greater until we can't have any rules anymore. And if lawyers don't stop, then we're gonna have a system where there is no limit on how much. Athletes can be paid and there's no limit on how long they can have played. And so if LeBron next year decides, I'm done with the Lakers, I really have always dreamed of playing for Ohio State. I'm gonna go back and Ohio State can pay me six or 7 million bucks. Or they can figure out a way. And I still have all four years of my college eligibility left, and I might take five years to do it. 'Cause maybe I'll red shirt in my junior year just to go abroad or something. So what te tell me about the Betty ACO suit or just more generally Yeah. What the argument is as to why those limits shouldn't be enforceable. Yeah. I hear the LeBron example a lot and it's like obviously that just to be clear, that would never fly because he is well beyond the Yeah. The four and five and well beyond any exception related there too. Yeah. Yeah. The problem is that you, you said the NCAA has softened its stance and the problem is the cat's out of the bag in many respects. You can't put it back in. The problem that, and I think hopefully one thing that we can all agree upon, or at least the very reasoned listeners to your podcast is that if the NCAA or any association is going to have rules, they, those rules cannot be applied arbitrarily or capriciously. And so when you start to allow for exceptions, and even when your rules expressly allow for exceptions. And you don't apply those exceptions across the board. You in, in a, in the same way. Or you have very clear exceptions to the rule, but you have a process that is behind closed doors in terms of the waiver process that a player cannot even bring on his or her own. It has to actually be brought by a compliance officer. And we have compliance officers around the country who are refusing to even submit waiver requests, which is in and of itself its own issue. But then the NCAA is essentially the judge, jury, and executioner in this process and arbitrarily making determinations. That's why you have circumstances where myself and other lawyers are bringing suits and you brought up the Charles Betty Ako case. There we. Refer to other athletes such as James Najee, who was drafted in, in, in the NBA draft and has played professionally European basketball players, plethora of them who have played professionally and then received eligibility. And to be clear, Charles Beko is still within the five year rule. In fact he's been ruled eligible under A TRO and importantly, we needed it now because this would be his last season under the five year rule. So it's not as though we're trying to discard the five year rule altogether, but what we're saying is, how can you say that another player who's logged more professional minutes, another player who may have not signed an NBA contract? And by the way, Charles Beko did not play a single minute in the NBA despite signing. Certain contracts that could deem that, you could characterize them as MBA contracts, but somebody else who's made more money professionally than Charles Beko. How are you denying Charles an opportunity to go back to school under the five-year rule and play when you're allowing others who have logged more minutes professionally and made more money professionally? Back to your comment about the exception, which is that you can play professionally as long as you're only getting paid, the reasonable expenses to, to cover, what is reasonable? If it's reasonable for others who have received additional eligibility, but it's not reasonable for Charles Becca, who's received less money. How do you defend that? And I think that's, again, an area that the NCAA is having a hard time defending. And then we can get into other cases. Whether it's the JUCO rule the NCAA gave a blanket waiver to a whole set of individuals who are the same classes as Diego Paia. Why did that class get an extra year? But no other classes get an extra year. And I think we're gonna challenge that with Tristan Smith, who we just filed for. Wide receiver at Clemson to get an extra year who played at the same c community college as Malik Benson. Another one of my clients that got an extra year was able to play for Oregon only because he happened to be in the same class as Diego Pao. Where's the equity in that? How do you have a guy like Dr. Bradley who demonstrated real mental harm and there's an exception of five-year rule for that? And the NCA said we're just gonna ignore that and we're gonna say he can't play. And that's where the NCAA is having issues. And that's why I'm taking these cases on. And I know I'm an easy target by doing so when you look on social media. But to me, I think we have to keep the NCAA honest. And I'm not saying that there shouldn't be any rules to be very clear, they should just be enforced and treated. Every athlete should be treated the same way under those rules. And unfortunately, they're not being treated the same way. So how, so on that point where the NCAAs tried to declare PAA ineligible they didn't want PAA to continue playing. So they try to stop him, he wins his lawsuit, and then the NCAA says if we want to be consistent, we have to give a blanket waiver. 'cause otherwise we're giving a benefit to paa 'cause he sued in this one particular jurisdiction. And so then they change those rules and then you get the next lawsuit and the lawyer argues as they should look, you allowed PAA and everybody else in his class to play. Why can't the similarly situated athletes in the next year play? And then if the NCAA says, all right, we're gonna try to stop that, and then you get sued and they win how do they then draw any lines? Because they would say, yeah, we'd love to do the four and five, with no exceptions other than COVID. And other than some extreme circumstances which are permitted under the rule how do they maintain uniformity if they keep Los losing these lawsuits? It's not the losing of lawsuits. The NCAA did not have to provide that blanket waiver. I was very happy that they did because it was actually in the wake of paa. And by the way, PAA didn't win his case. He just, he received a preliminary injunction in the wake of that injunction we were going to file a lawsuit on behalf of the aforementioned Malik Benson. And it was at that point in time that I was in communication with one of the NCAA's lawyers. And that's when they determined before we filed, that they were gonna provide that blanket waiver. I'm not sure they really thought that through, because in my estimation, it probably would've been wiser for the NCAA to allow me to file and anyone else to file and still fight against the PAA decision, which I believe that case is still going on. And so it's not as though the NCAA waived the white flag on that case. I. The problem for the NCAA is the policy that was created by way of that blanket waiver. And again, if you're going to provide everybody in that class that extra year, then how can you tell the next class you don't get that benefit? What was the basis for providing it? Just that you were afraid of more litigation. I think that's not very persuasive to a judge. Yeah. I just, again, in defense of the NCAA if Pavia is ordered or if the NCAA is ordered to allow PAA to play on a preliminary level. And then somebody else applies and the NCAA says, no. They would get absolutely destroyed in the press for saying you are, this has been ruled preliminarily to be illegal, and yet you're saying no again. So it, it just feels again, back to that catch 22, not to defend the NCAA, but I'm not sure they had a winning answer there. Hindsight being 2020, they would've benefited I forget the name of the Supreme Court case, but that essentially said that rulings in one federal court don't necessarily apply to other federal courts. I don't think they, that they could have been NORAD down and predict that. Although there were questions obviously, which is why it ended up being a Supreme Court case as to the app, whether one, one decision would apply to another. But again, I you still have cases that have come about in the wake of the PAA decision. Whether it's Patterson or it's Jet El ad, and now, Tristan Smith and others. I don't know that. They accomplished anything by way of creating that blanket waiver without them just saying, alright, anyone who played in juco, you get one extra year because then you're just applying that same policy across the board. And that's my only point, which is that you, you have to have consistency in the application of your rules. And I can provide you countless examples of where there's just pure inconsistency. And so LeBron example, put that one aside and let's say it's Cooper, let's say it's Cooper flag. And right Cooper Flag says, look, I've only been in the NBA for a year and this is not turning out the way I thought it would. Everybody's still chanting fire Nico, even though he is already been fired. And I want to go back to Duke. 'cause that was such an unbelievable year. Should have won the national title. We wouldn't be Florida in the finals. There's no question. What and look, nobody would argue that he's just making reasonable expenses, getting paid a lot of money, right? But they doesn't seem like they've narrowly tailored that rule to say, we are gonna look at the exact salary you're making. So if Cooper Flagg called you and said, Hey, I'd really go back, really like to go back to Duke do you think you win that case by saying, look, he wants to go back to school. Why would you try to discourage someone from going back to school and you've let all these other guys go back to school? I'm not sure, and I will tell you without mentioning names, I've been approached by many players that have logged either a small amount of NBA minutes to a significant amount of NBA minutes, but still fall within the scope of the five year rule as well as agents. And we're looking at each potential situation and possible case differently. And, going back to Damman Williams, just weighing the risks versus the rewards and obviously the inherent costs associated with litigating and what that could mean for the players True professional career as litigation plays out. And I, I think a, as would be suspected, this sort of goes in steps. And I think at some point in time, whether. I'm counsel or somebody else's, you probably will see a case that's brought by a player an a former NBA player who has logged actual minutes, unlike Charles Betty Ko. I would suspect you're not going to start with someone like Cooper Flagg, who is an integral part of the team and is logging minutes every night. Every time that there's a game, you'll probably find somebody first who's played a few games to start testing those limits. And yeah that, that could come. Whether I take the case or not, I don't know. Fair. Fair. And I don't wanna read too much between the lines, but I think what you're saying is that saying you're gonna represent JTA Porter in his attempts to go back to college. That's, that, that's a joke. It's a joke for everybody. Problem, but, all right, LA, last quick question. If you were the NCAA or the CSC or the conferences, what would you do to stop Darren? He. And the lawsuits that they're facing. I think it goes back to what I said before, which is spend the time to, to craft the rule. Throw away the rule book. First of all it's too long, it's convoluted, it's tough to follow. I know there's been efforts to modify it and shorten it, but come up with rules that truly serve a pro competitive purpose. Come up with rules that aren't overly restrictive, particularly in this world where athletes are making significant amounts of money. This rule book was created in large part pre July 1st, 2021, before anyone was making money from NIL. And so I think the NCAA needs to reconsider its rules given that because. Judges are looking at the rules in light of the fact that athletes are now commercializing their NIL or even some judges realizing it's pay for play. So I think, the looking at the pro-competitive portion, restricting to the extent that you can the anti-competitive portion and then even application of the rules. That's the big thing. Like you, you want me to not file a lawsuit on me. I'm, I, like right now I'm pre-suit for a player who was able to show significant mental distress, which is why he didn't play a specific season, which isn't an exception to the rule on the five-year rule. You should enforce my hand and make me file that lawsuit. You should give him an extra year. And yet I followed up with the NCAA many times and I'm not getting any response. And I get it. They're busy, they're limited in resources, if I have a JUCO case, make me file it. I get it. You're taking a firm position on that. But if I have a case where a player can actually show mental distress, why are you making me do that? It's and that's the thing, like that's what the general public doesn't realize. I'm not out here just slinging lawsuits all over the place. I'm doing it after exhausting every effort to try to avoid doing so. And I wish the NCAA would do a better job of just giving me what I'm asking for when I'm not asking for too much. Yeah, that's that's well said. And I think many people have said for a long time, if they had done that 10 or 15 years ago, we probably wouldn't be in the position we are now. But again, hindsight is 2020 and here we are. And I appreciate you taking the time. I kept you. Only twice as long as I said I would. But but you could add it to my, to my tab. Yeah, the fake one. Yeah. Yeah. So thank you for doing this, Darren. I really appreciate it. Yeah, I it has been fun. As I mentioned to you in DC last week's, been fun to see your career take off like a rocket ship. And congrats on all that you've done and good luck and love to have you back on as more things develop. 'cause I have a feeling that this is not the last time you will be making news. This is great. Thanks so much for having me, uncle Gabe, and till next time. And thank you all for listening, and thanks as always to my loyal sponsor, the Tulane Center for Sport. See you next time on Sports Wise.