Ep. 85: The Fate of College Sports (and the House Settlement) with Steve Molo, Lead Counsel for 100+ Athlete Objectors

Ah. Welcome to Sports Wise, 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 Sport. This is a very special episode because I'm recording this while in Rhodes Greece teaching at our Tulane study abroad program. Well, I guess that doesn't make it special for you, but it's special for me on this episode. We're talking more house settlement. We'll eventually talk about something else. This time I'm joined by Steve Molo, lead counsel for the largest group of athlete objectives. Steve explains why he thinks the settlement should be rejected possible next. Step if the settlement is approved and much, much more. Here we go. Welcome into the podcast, Steve Molo. Thank you so much for coming on. It's my pleasure. Thanks for inviting me. We have a lot to talk about. You involved in a case that has been in every headline, in every sports paper or website, the house case and the settlement, and. You filed a number of objections. And that's why I have you on here to talk about those objections, talk about the status of the house case. I know there are a lot of elements to your objections, but I wanna focus on the one that's still live and just people listen to this. It might be on the eve of an order from Judge Wilkin or right after an order from Judge Wilkin. So regardless of when you're listening to it this will be important informative. Steve, can you tell us about. The latest round of objections and what Judge Wilkin is currently considering or potentially has just decided. So Judge Wilkin rejected the settlement based on the fact that these roster limits were in place and in effect, student athletes they're members of the class that are in a worse position rather than a better position as a result of the settlement. Some that were simply going to lose their spots that had been promised to them. They still have to compete. They still have to perform on the field. They still have to comply with the conduct rules that are there, the academic rules that are there. But these are people that were cut because the schools we're imposing the roster limits that are anticipated in the final settlement. She rejected that said it was unfair. Directed the objectors to meet with the mediator and also meet with the the parties and see if we couldn't come to some kind of a conclusion that was acceptable to us. We did that we didn't come to an agreement. The NCAA and the plaintiff's counsel filed a modification to the settlement agreement, which effectively allows schools to implement roster limits at their discretion. And we think that's illusory. We said that we objected to the settlement. Again, we told the court that she ought to reject it, that this doesn't provide relief, that there are people that are being harmed by this settlement rather than helped by the settlement. And that is pending before Judge Wilkin now. So the parties in their latest revised settlement, the fourth revised settlement argued that they were responsive to Judge Wilkins concerns about the roster limits and your concerns about the roster limits because of these new rules they were gonna put in there that if you are on a current roster or were cut because of the settlement, or had a scholarship with withdrawn, then you can be a designated student and then you get to carry that designated student tag with you throughout your college career and you won't count towards the roster limit. And they argued that as, 'cause you responded to this, that would satisfy the judge's concerns and. Wouldn't leave anyone who would've had a roster spot without a roster spot. So in reading that and hearing that it, it sounds like it covers a lot. So just clarify what it doesn't cover in your mind and why it's not a it's discretionary. The schools don't have to do that. They don't have to live by that. Had they had to live by that, it would go a long way to resolving the issues caused by the roster caps. But it really doesn't, it's illusory, it's not really relief. It's something that might happen. The athletes are entitled to something that should happen and will happen and should not be harmed as a result of the settlement. And that's what's happening still. And so what is the discretion that they don't already have? Because they do have the discretion to, as you said, cut people from rosters if they don't meet academic requirements or there's conduct requirements. So there's always some discretion in there. What's the additional discretion they have here if somebody is a designated student to adopt this whole concept of the designated student that is still discretionary with the schools. They're not required to do that. And many student athletes are left in the situation where they've been cut from teams or told that they're not going to be invited back, however you wanna phrase that. They've entered to transfer portal, they've, which is clogged. The estimate. I've read in the media, and it's hard to get a hard count on this, but the estimate I've read is that there are more than 25,000 student athletes that are affected by this. These students face additional out-of-pocket costs, having to look for new school. They face interruption to their academic careers. Going to another school that may have different academic requirements. All the credits may not transfer, the school may be for whatever reason, not as well suited to providing the education the athlete wanted to pursue whatever they wanna pursue professionally afterwards. There's a lot of of challenges here and the stories that we have heard are absolutely heartbreaking. Young men and women who have dedicated themselves to their sport as well as maintain a full academic load going forward and complying with what the requirements are of the NCAA to remain eligible and having this just taken away from them. The anxiety the, stories of depression, stories of the phrase that you hear all the time is heartbroken. These are really unfortunate stories and it doesn't have to be the roster spot limit. Was introduced into the settlement late in the negotiations and really doesn't have anything to do with the issues that were raised in the first instance in house. It has nothing to do with athlete compensation. This is something that the NCAA has interjected in a way to, as a way to save money for the schools and get a release for it. They're getting a release here. If they had the ability to do this before, which, they certainly had these schools could eliminate teams. They could cut players, whatever they faced potential legal consequences for that. Here they're shielding themselves with the release of the settlement and trying to do the same thing. It's just not fair. And so a couple points there. One, as you noted the original complaint, whether it was Carter House, certainly Hubbard, didn't include roster limits. It were about NIL limits or just compensation limits more broadly. And then this was introduced, I believe, in the second amended complaint there is that argument that this case wasn't originally about, that. It only became about that as they, as you said, try to seek this cover. But the second point on that is that you mentioned the NCAA wants it to try to control costs. It strikes me as interesting, and others have said this as well, that it's one thing to include that initially, it's another thing when the judge expresses some concern about that it's another when the judge doesn't approve the settlement because of those limits, to still not just say, we're gonna let everybody, rewind or just give everybody their roster spot back. Now they may say we're doing everything that we could possibly do at this point because athletes have already been cut. We can't undo that and athletes might want to go somewhere else. But why do you think the NCAA or the defendants have pushed so hard on ro, which I get the cost control issue. What, in your mind is the reason why they're pushing so hard on this? I do think it is a cost savings. Tool for them, something that they believe is going to reduce the cost by having fewer people on rosters. And in some instances, maybe getting away with teams altogether. And these are teams that are quote unquote not revenue generating. There's a question about what is revenue generating. You can't have a football or basketball team unless you have a requisite number of other teams. Having these other teams enables a school to have the quote unquote revenue generating sports. But that aside we raise the issue that roster caps themselves are a constraint on the market for talent for athlete labor, student athlete labor. And they should be struck from the settlement on that basis alone. To your point. Schools didn't have roster limits and the free market more or less took care of it in terms of how many players a school would carry on any team, a football team, a wrestling team, it didn't really much matter. The justification that they've advanced that this somehow, helps competition is I think not at all true. And it's not borne out by what's, happened before if the University of Alabama or Michigan wanted to have 200 people on a football team, they could have, they didn't. And other schools were able to still compete against those schools with carrying roster that were smaller. Or in some instances they had rosters that were the same size. The free market ought to take care of that. And we've argued that the judge hasn't agreed with that, but she has agreed that what's happening right now with the roster limits and the way they're being implemented is unfair. And it is. So I just to emphasize that point, judge Wilkin rejected the idea that a cap on roster spots is, in and of itself illegal, but was troubled by the immediate implementation of it and the impact that had on students who were on rosters or were in high school and promised a roster correct. Which is obviously not as far as you wanted Judge Wilkin to go, but was further than the parties wanted her to go. Correct. And it's interesting because on the one hand, they removed the scholarship limits, which is going to, if competition works its way out and people want to give more scholarships, that's gonna increase their costs. And then the roster limits try to decrease the cost, or they can, as they argue try to promote competitive balance. But it, it does, I think, highlight in some ways, the NCAA's argument, whether you're sympathetic to it or not, that every time they do make a rule and they try to provide more rights here or change something there, they get sued no matter what. They're gonna get sued under antitrust. Tell me your response to that. I was gonna say, I can guess what your response is, but what's your response to Look, we have to have some control. So you have to have some regulations and all sports, as they argue, pro sports have regulations. But they're making it impossible for the NCAA to do that. My response is they ought to comply with the antitrust laws. That's what, that if they complied with the antitrust laws, they wouldn't get sued. They want it both ways. They want to be able to make these extraordinary sums of money from broadcasting contracts and from gate revenue and other sources of revenue that they have, and they don't want to appropriately share that with the student athletes. The 22% cap is an antitrust violation. Judge Wilkin herself said in an earlier case that, a an agreement to fixed prices at a higher price is still an agreement to fixed prices. And so you go from zero to 22%. It's still a price fixing arrangement. Now, in professional sports, the revenue share between players and the league and teams is closer to 50 50, but those are achieved through collective bargaining and collective bargaining provides. Players with certain rights that college players don't have. So they have the right to strike. They have the right to have their labor negotiations supervised by the NLRB. They have the other tools that are available under the labor laws. And as a result, they negotiated an agreement that was at 50% and they negotiated other elements of the package that allows players to play, includes including benefits, including in some instances, roster sizes, things like that. But that doesn't happen here. This is being negotiated by the plaintiff's lawyers and the NCAA and their interests are quite different than having a union with officials that are elected by the players with counsel. That is hired by the player's representatives. This is just a very different format. I'm not saying those lawyers aren't trying to get a good deal but it's not a deal that's consistent with the antitrust laws as we read them. And I think it's very clear. And look, you go back to Alston, Judge Kavanaugh's concurrence, calling the situation what it is. It isn't about amateurism anymore. These are big dollar revenue generating sports. They are players who may have a limited do have a limited career span. Some of them obviously may get injured, some of them may be successful in college, may not be successful in the pros. They should be entitled to earn whatever the free market would would pay them. And it's obviously ironic 'cause that those are the very arguments that the plaintiffs in the house case. We're making initially before they reached a settlement, and they would argue we would love to have all that, but we can't get all of that as part of the settlement. So that this was a compromise. But I do want you to talk more about the other objections you have and the Title IX concerns, and we can talk a little bit more about the antitrust issues. But before we get there, because I know people who are listening to this want to know the immediate next steps, particularly those who work in athletic departments or on university campuses. So let's take the two scenarios. Maybe there's a third, you'll tell me if there's a third. But scenario one is Judge Wilkin approves the settlement. Then scenario two is she rejects the settlement and the parties go back to a trial schedule and then maybe they negotiate a new settlement, come back to her. I suppose scenario three could be she does what she did last time, which is give additional instructions to tweak the settlement. But let's take that one out of it. Let's take scenario three out of it and just focus on one and two. And mostly actually on one. So if she does approve the settlement, what is your next step? And I don't mean specifically you, but what is an objective's next step in the process given all the moving parts and the different ways that the settlement is handled? We would have to take a look at the order and obviously our con, our next steps are gonna be guided by the specific words that the judge uses in approving the settlement. But we would, potentially appeal. The judge has ordered, or we'd have to see whether for some reason, we were satisfied with what was there so that it's really binary in that sense. There's no way to come back, speak some kind of further modification. I guess again, depending on what the judge writes, is it possible that we would say could the order be clarified? Could it be modified in some way or another? Those are certainly possibilities, but if just putting it out there the way that you have, which is she, accepts the settlement as it is, those would be the options we would have. Yeah. So I'm thinking she's just stamps approved right on the settlement. With no further instruction. So then in terms of an appeal, and again, not saying that you are or not appealing, but if you do appeal what's the timeline? And just the. Process for appealing a judicially approved settlement to the ninth circuit and talk about the standard and, 'cause it's obviously very difficult to get a circuit court to overturn a settlement, but can you talk a little bit just about the process, because I don't think most folks are familiar with the appeal of a settlement. So the settlement would be considered a final order. We would then file an appeal, as you say, to the Ninth Circuit United States Court of Appeals for the ninth circuit, which is the court of appeals for the. Federal court for the Northern District of California, we would file a brief, we would have some period of time that would probably be agreed to by a briefing schedule between the parties, somewhere in the neighborhood of 60 days, maybe 90 days, maybe shorter, because we've really addressed these issues in the trial court and we have tried to move with all deliberate speed in addressing these issues. 'cause we realize that there are people's lives at stake. This is happening in real time for these athletes who now as I mentioned, are trying to find new schools when they've been subjected to these unfair roster cuts. The other side would have a similar amount of time to respond. We would have a short period of time, a couple of weeks to file a reply, and then the court would set oral argument at some point relatively soon after the case was fully briefed. Then it would have a decision. And the decision would. There's no time limit for the court to decide. The court could decide it, it could decide from the bench. I don't think that would happen, but it could decide it in a matter of 60 days. It could take more than a year to decide it, depending on what it, what it wishes to do. There's no real way to predict that especially in a case like this with the complexities that are there and the importance of the case. So the next question obviously is, all right what about so the way the settlement works, or at least that is written, is that the damages settlement would be stayed pending an appeal, but the injective relief would not be stayed pending an appeal. So the roster limits would go in immediately according to the terms of the settlement. And if an appeal could take a year and the athletes haven't gotten their roster spots back. What's the relief at that point? Is there a way either to seek a stay of that injunctive relief or to have an expedited appeal, otherwise it might just be moot for most of these assets? So those are certainly things that we would look at. I can't tell you right now that there's a plan to do any specific thing in the event that the court does approve the settlement in a way that we find unsatisfactory or somehow still harms these people, subject to these roster cuts. But you've identified the things that might be able to help provide sooner relief. Most specifically a it's interesting because the settlement itself says that the roster limits, wouldn't be subject to a state parties decreed themselves, which I thought was rather bold and some would say arrogant. And. But we would have to consider that and then see how quickly the Ninth Circuit would decide it. Because like I say, this is something where people are suffering this harm in real time. And do you think you've exhausted that argument with Judge Wilkin? So the stay motion, if you did file one would go to the ninth Circuit? I don't no, I don't think so. I think we'd have to see again, what the order is and be happy to come back and talk to you once we decide what we're gonna do. Okay. The opening champagne and she'll be she'll agreed with us on everything, but it I'm happy to talk with you at that point, once we figure out what we would doing. Okay. Great. Great. All right so then let's talk about the other issues you raised in the objection and also just to clarify if there is an appeal. If anyone were to appeal, then I imagine the grounds that they could appeal on would be any of the objections that were raised, not just this final revision. So you would go back to the initial objections you filed and those would be considered again by the ninth Circuit. Correct. And as to the, so then objections on the money distribution, that's something that can be addressed down the road. It doesn't have to be addressed right now. And if you point out, that would be stayed. So let's talk about the other objections because they may come back on any potential appeal, whether it's from you and the athletes you represent or one of the other many objectors. And so your initial objection before the preliminary hearing focus, not necessarily primarily, but first on. The unfair impact on female athletes and the Title IX implications. So can you just summarize high level what those objections are? Sure. I guess they were, because they still are, that just Judge Wilkin didn't agree with them, but they're still objections. Stepping back even to, a few paces back, the judge has to determine that the settlement is fair, reasonable, and adequate. Under Rule 23 of the Federal Rules of Civil procedure, that's the standard and the judge acts as a fiduciary to the class and the situation. Because what you're doing here is deciding the rights of unrepresented people. And I think that's something that you have to keep in mind here. That that's what the class action is, and there's certain protections that are built into the class action statute that. Provide for adequate representation, but the ultimate standard that the judge has to apply is the settlement fair, reasonable, and adequate? We argued that it was not fair, reasonable, and adequate, both at the fairness hearing and at the hearing on preliminary approval, which is basically at that stage, the judge is saying, is it likely to be determined to be fair, reasonable, and adequate? But we raised the issue of the unfairness to women. Now the settlement distributes 90% plus I believe of of the money that is whatever it is, $2.6 billion, I forget the precise amount to male athletes and 10% to women. We say that is. On its face unfair. And part of the unfairness is rooted in Title ix. Title IX says that if you are an institution that takes federal money and an educational institution that takes federal money and you have athletic programs, you have to provide roughly equal treatment. It doesn't have to be precisely equal, but roughly equal treatment to, to women and men's sports. Obviously 90% to the men and 10% to the women isn't isn't equal. And we raised that just on a simple fairness basis, but beyond that the distribution of that money, we've argued to the court violates Title IX because it should be on a roughly equal proportion, equally proportionate basis. The plaintiff's expert Mr. Rasher, Dr. Rasher was tasked with. Determining what an antitrust law is called. The but for world. Okay. The but for world is the world that would exist, but for the antitrust violation. Okay. But for this price fixing scheme in the labor market what would this look like? And in doing so, he calculated the payout as it was described in the settlement agreement. And as I just described, with the 90% going in men with the focus being on men who are on these revenue generating sports. And he determined that the money would be distributed by the conferences. Alright. Why is that important? It's important because there's at least a debate that Title IX doesn't apply to the conferences. We say it does, but there's a debate about whether it applies to the conferences in the NCAA. There's no debate that it applies to the schools. His calculation of the but for world that allows for this 90%, 10% distribution is based on the assumption that the conferences would be distributing the money when the settlement was put forth before the court in its final form. And the injunctive relief is described on a going forward basis, the schools will be paying the money to the athletes. So this 22% revenue share where the schools are getting, are now getting the money to, to, that the athletes are actually gonna get, it's going to be distributed by the schools. So that completely undercuts Dr. ER's assumption that the conferences and not the schools would be making the distribution of the money. And because it is the schools, that means Title IX applies and it's gotta be done on a roughly proportionate basis. Does that make sense? It does. I, so I have two questions. Let me ask the more specific one first. So Dan Rasher, who was actually was on that podcast a few months ago before the objections were filed, so I didn't have a chance to ask him these points, but he calculated it. 90% of that revenue was attributable to. Football and men's basketball players, and as you said, 5% to women's basketball, then 5% to all other assets. And he didn't take into account Title IX and making that calculation and how the schools would have to pay it because he he concluded that the money would come from the conferences were not subject to Title ix. And you have two problems with that. One is you say that Title IX may in fact apply to the conferences in the NCAA under the Controlling Authority Theory, and two, either way, it's the schools that are paying this money out. So he should have considered Title ix, and if he had, he would've apportioned more money to female athletes. Is that a fair, I should have asked you to say those things to Judge Wilkin rather than me and maybe she would've agreed. In terms of the ni, if it is 90%, 10% from the schools to the male athletes and the female athletes. It seemed to me that Judge Wilkin's ar argument on that and certainly the parties was, we're not settling a Title IX case, we're just settling an antitrust case, and if our settlement violates Title ix, someone can bring a Title IX case. But it's not a reason to un to reject the settlement. So what, you obviously disagree with that. So what's your, lemme ask you what's accountable. You're a law professor so you probably know the answer to this question is a settlement that violates the law specifically Title ix, fair, reasonable, and adequate? Can it be fair, reasonable, and adequate? I would argue that it cannot. Okay. You can't just say we've left this other issue out there, and and that's not, that's not to be had. So that's 0.1. Point two is the the fact that. Rasher assumption, okay. Ignores Title ix it's not, it isn't a valid calculation or determination of the but for world, right? And the best evidence that it is not a determination of the but for world is the settlement itself, which says that on a going forward basis, the schools are gonna be the ones that are distributing the money. And they have to be, because the schools can decide to pay an athlete whatever they want to pay the athlete, right? And they're gonna make determinations based upon the position they play, the, quality of their play, all those sorts of things that, that an employer, which is what the schools really are here, would use to make those determinations. I believe that this is a fundamental flaw in the. Distribution of the money. And in the calculation, done by Dr. Er, there's another point as well, which is that the looking at this and saying gee, it's the men's sports that are generating the money ignores that women's sports were suppressed for years. And there was a study done by the Kaplan hacker and Fink law firm that looked at this very issue and concluded that was the case. That women's sports had been underfunded, they've been underrepresented, they've been suppressed during, years for years and years leading up to this settlement. And this doesn't account for that, that this anti-competitive behavior toward women's sports has occurred. So the best example of that, and the one that you know, that we give in our papers, and the one that I, I love this example, is that the women asked. To use March Madness branding for their basketball tournament for years. And the NC said, no, that's reserved for men. Alright. In 2022, the first they were allowed to use it, okay? In two years, the women outdrew, the men in television viewership for their finals when they were able to brand with March Madness when they weren't being suppressed in the same way that they had been for years. So the settlement doesn't really fairly account for that either. And, look, I'm all for the male athletes getting as much money as they can possibly get. They should get, this is not a men versus women thing, but the women have to be treated fairly. So maybe the settlement should be $4 billion, maybe it should be $5 billion, whatever it should be. But if it's gonna be the 2.6 billion with the distribution as it is right now, it's not fair, reasonable, and adequate. It doesn't comply with the antitrust laws in our view. And I have the greatest respect for Judge Wilkin and I have respect for the lawyers that have been involved in litig, the litigating this case, for a long time. We view this as a fundamental problem with the settlement and hopefully somewhere along the way this will get rectified. One other point on Title IX before, move on to the other objections. As you talked about earlier. You make the argument that the conferences and the NCAA may in fact be subject to Title ix even though they haven't been held subject to it in the past. And the argument is that they are controlled by the schools or sufficiently controlled by the schools, so they would fall under this controlling authority theory. And that the big case that the NCAA relies on is the Smith case, which is you are distinguishable because that was just whether the schools by paying dues to the NCAA fell under Title IX and that this is different. Can you explain that theory a little bit more because it's obviously would be a significant change in the way that Title IX has applied to college athletics in the past. It's because the schools have seated their authority that they would normally exercise themselves. In terms of the rulemaking, in terms of the application of the rules. And in essence, they and I'm not saying that it was done specifically to skirt the application of Title ix, but by giving that authority over to the conferences and to the NCAA they are subjected to it. And that has not been fully articulated in a court opinion. You're correct. But the pieces are there and we believe that is the way a court should rule. And so you may not be able to answer this, but I imagine that if the settlement is in fact approved as written in the last revision, that there will be Title IX lawsuits filed and you have a pretty well known Title IX lawyer on your papers. Is that a fair assumption or, let me ask it this way. What do you think happens first, the Title IX lawsuit is filed, or the appeal of the settlements is filed? I don't know. I really don't. I, it just, we will see how things play out with the judge's order. Title IX is something that I have not personally been, involved in a lot of Title IX cases. That's not where my practice has the direction my practice has gone. But you're right, Arthur Bryant, who works with us, has been involved in a lot of Title IX litigation. He's currently got the case against Oregon. And I invite you to, by the way, take a look at that complaint in that case. It's really stunning to see the differences in the facilities between the men and the women and and some of the other things that he points out last couple of questions on the. Objections. You also argue as you mentioned earlier, that replacing a cap on payment at zero or plus or minus with a higher cap is still an antitrust violation. It's just fixing prices. Is fixing prices, whether it's at zero or it's at 22 million. Is there, an answer for what the NCAA can do in terms of putting any restrictions on athlete compensation or is it any, anything they do at a national level would violate antitrust law unless there were a union involved or unless there was some congressional intervention? I think you just, articulated the the answer has gotta be either a union negotiation, some kind of collective bargaining or there's gotta be some kind of a congressional exemption. But I. It people still have this sort of sentimental feeling about college athletics and that these are students first and the reality of that is it's not, it's big business. And again, it was recognized by the Supreme Court as such. I think that it's great that these schools have these teams and it's great that people can go play these sports, whether they're the big revenue generating sports or not. But at the end of the day there are millions and millions of dollars that are being earned by the schools and by the NCA by the conferences that you know, have been earned by. Student athletes who are workers they are laborers and they're not getting what they're entitled to under the labor laws. It's a cartel to fix the price of wages. It's pretty simple. On the antitrust issues and then I'll, and then I'll wrap it up 'cause I've already kept you longer than I should have. But part of the argument about the antitrust case is that you can't offset a anti-competitive effect in the labor market with a pro-competitive benefit in the product market. In the roster limits argument, you argue that it, you can't argue that an offsetting pro-competitive benefit of roster limits is competitive balance. 'cause the product market is different market than the labor market. And the impact has to be in the labor market. And there's some recent case law on that makes that clear. So just to clarify on that, does that mean that the NCAA's longstanding antitrust defense that this is creating a product that's different than pro sports, is no longer valid, that they would have to prove something in the labor market, not the product market? I believe so. And for good reason, right? It is the labor market that's affected. So what is the pro-competitive effect in the labor market? There isn't. It's simply fixing the price of labor in a way that is. Not the way we traditionally fix prices and labor or sports labor, right? We do it through unions, through collective bargaining. And even in the case that the plaintiff's lawyers cite to the Minnesota case involving the NFL at that point in time, the union was in formation. There was there they were, things were run by them. And it was ultimately something that was achieved through effectively collective bargaining. And that's the way it is done in other sports. Look, there, there is a way around this and the way around it is to, why not have a union or why not create some kind of congressional exemption? But why should the NCAA get a pass and the conferences get a pass? Why should they be enabled? Be entitled to profit. From the labor in a fixed market and extract those as we say in antitrust law, the monopoly rents, right? Why should they be enabled? They be entitled to do that. They shouldn't. And it, look, it's not gonna ruin college sports. College sports are more popular than ever. College, these schools are still gonna have college football teams, college basketball teams. Unfortunately, some of these things with the roster cuts are gonna hurt sports that are important for the country, like some of the Olympic sports that are being harmed as a result of this. But doing it in a way that's consistent with the law, as the law is applied to every other business in America isn't gonna destroy college sports. It isn't, it's just gonna be a fair a more fair situation for these players. And, I also invite you to think again about what these players are doing. They're giving up, devoting what, 40, 50, 60 hours a week during their seasons and substantial hours outside their seasons to their sport. Some extraordinary people are able to still achieve, a academic excellence. Not withstanding those demands, but often players that are recruited to play on some of these teams are not people who are academic all stars or let alone Allstar. They're just not strong students and are they really getting an education or really getting an education within the meaning of what people think of as the quote unquote student athlete, in the time of Teddy Roosevelt, it's just not, it's not a realistic view of the world. So I it's hard to, when you step back from it get your head around what is it that they're trying to preserve here and why shouldn't they just be subjected to the law like everybody else? Why should these workers be forced to work at an artificially suppressed wage for an artificially suppressed wage when that doesn't happen in, in, in other areas of of a market place. I think I know the answer to this but what does that mean for the analysis of these eligibility cases that have been filed or academic requirements, any eligibility issues where the NCAA has argued, we need this because these are supposed to be college students that are playing sports, and if they're not students, our product is no longer distinguished from pro sports and then they have to be four years of eligibility in five years. And if they're any longer than that, then that's gonna destroy the product. Does that mean under antitrust law, they don't get to make the. The unique product justification and those would all be struck down as well, some of those rules, the one that they, they rely on often is that a student has to be making, adequate progress toward a degree. And look at some of these transcripts I have, by the way, through other and other matters that I've been involved in. Now you look at some of these transcripts and you know what the students are doing. It, we can debate this. And I have not looked at all of those cases that, the cases that you're mentioning right now read the complaints or looked at the things that they're challenging. But I do believe that some of these requirements that they've set up are not realistic and they're not necessarily fully honored in the way that they claim to be honored. What means, making sufficient progress toward a degree. You look at, as I say, some of these athletes' transcripts, and it is not, it's not their fault. It's not the athlete's fault at all. In fact, the athlete is just there because they want to play their sport and they're good at that. And, most of 'em also want to go to school and get an education. But for some of them getting an education really doesn't matter either, right? They just want to be able to play their sport and hopefully elevate themselves some way through that. I guess the courts will sort through those issues as they're presented, but at, at the core, the question of, should an athlete be paid a fair wage I think is one that the answer has to be une unequivocally. Yes. And a fair wage means one that is not artificially constrained through price fixing in violation of the antitrust laws. I. And so I take it that you have relatively strong confidence that if the case did go to trial if the house case and the Parker case went to trial, that the plaintiff should win, or at least you think they should win, whether they would win or not. You think they should win? I think they should win. I think that, if a jury were to sit back and hear the evidence and really give it some thought, I don't think you need to even give it a ton of thought. It's a very basic proposition and it's one that's very relatable. Jurors are bound not to put themselves in the place of a party, right? They're supposed to decide the law decide the case on the law and the evidence that's before them. But no one could divorce themselves from that experience. I'm thinking. I'm working at a job you're working in a job as a law professor. If the school, some national association of universities, whatever that may be, decided that law professors could only make this amount of money, whatever this amount of money is it would be unfair, right? I think anyone in any job could understand that there's a fair, just a basic fundamental fairness element to this, that somebody should be able to earn whatever they can earn, and if there's a decision made that no, we're gonna cap it. It's gotta be capped in a way that. Is fair that the process in reaching that was fair and class action litigation isn't that process, it's the United States. We have collective bargaining through unions. Or as I say, if there's some kind of a congressional exemption that would be the case. But there's a lot of advantages to people being able to do that. So if you're gonna give up the right to make whatever you can make, you want to get something else in return. And the something else in return is knowing that whoever's negotiating that for you is somebody that you've elected or other people that are similarly situated to you, has have elected, that you've hired the representation that you want to hire, that you have the protection of the labor laws and of the NLRB and that you say, I'm willing to give that up. I'm willing to give up the opportunity to make as much money as I possibly can if I can get all these other protections. That's not what's happened here. And last, last two very quick questions. When first one point of clarification, I think there is a national association that is secretly suppressing the salaries of law professors. I, I think that's the complaint been filed yet. And I think that you in particular are deserving of much greater compensation than you're receiving. All that you bring into lane with your podcast and your charm certainly benefits the university in ways that are hard to put a number on. But I'm sure you could find a number that which has I'm using that as my pull quote now, so thank you for that. It's gonna go on my resume. All right, so last two quick questions. When I had Steve Berman on, I asked him what he thought that chances that Judge Wilkin would approve the settlement were, I'm not gonna ask you that one because. She will have ruled either by the time this is out or presumably soon after. But he did say 95%. And then I asked him what he thought the chances of it holding up on appeal were. And he, would you want to guess what percentage he gave? 96? I don't know. I don't know. That's what I would've thought. But he said 80%. I would've thought that on appeal it would've been higher. Just because it's so difficult to overturn settlements. What do you have a number of if it were to be appealed? I really can't say there's so many variable factors, but I do believe strongly that the arguments that put forth are fully consistent with the law and that. Court applying the law should, should rule in our favor. I also wanna just mention one thing you mentioned, Steve. And I have great respect, as I said for the plaintiff's lawyers in the case. I think that they're trying very hard to get a good result for the class, but the settlement that has been achieved, that's been reached here isn't fair, reasonable, and adequate in our view. Last question. This is non substantive, or at least not about the case. When you are in trial or in trial prep or dealing with a difficult issue what's your anchor when you're making decisions professionally about how to proceed in a case whether to take a case? What's your sort of core values that you'd say? I think, if I understand your question of what becomes a north star that's the phrase I needed to use, but didn't you? Yes, you're North Star. That's why I do what I do and you do what you do. But after said all those nice things, but no I'm kidding you. The, what's the north star? I think that ultimately juries and judges want to do what's fair. We can debate, what fairness is or what fairness is in a particular situation. But I think that sometimes lawyers get wrapped around the axle trying to dissect what a particular case means, or go off on a tangent with a particular set of facts or that are relevant to one piece, a piece of the case or not. And I think that keeping fairness in mind and understanding that that is what really drives. Now, of course, the it is what drives decisions. Of course, the law, has rules about how we decide these things. And there are certain considerations that people must, take, must apply. And there are certain considerations that they, they may not apply. But at the end of the day. Being empathetic, understanding who your decider is, whether it's a court or a jury. There's a trial judge, whether it's a panel of three judges being empathetic and trying to position your case, tell your story in a way that says, here's what the law says. But I'm telling you that consistent with the law, the fair thing, the right thing here is for us to win. I think that is that's critically important. And lawyers have a tremendous tremendous ability to get, caught up in things that lose sight of that very basic point. And I hope they continue to do that. At least my opponents do. All right. Perfect note to wrap on. Thank you, Steve. I will say in my defense, I have a terrible sense of direction, so maybe that's why I couldn't find the North star with the north star phrase. But I very much appreciate your time and your insight and I look forward to the next developments and I will take you up on, as developments occur to have you back on. But I really appreciate the time. I'd be happy to do it. Your podcast is terrific. You deserve all of the accolades that you've received for it and the standing that you've received in the podcast world. It's a great a great resource out there for the the business of sports in particular. It really is and the law of sports. Thanks and I will be delighted to come back if if you ask me support in the future. Enjoy grief. Thanks so much, Steve. Thank you for the kind words. And thank you all for listening, and thanks as always to my sponsor, the Tulane Center for Sport. If you enjoy this podcast, please download, subscribe, and give it five stars. Thanks and see you next time on Sports Wise.