Ep. 86: Life After House-- What's Next for the NCAA? With the Lead Outside Counsel for the NCAA, Rakesh Kilaru

Ah, welcome to Sports Wise, a podcast about sports in the law with your host me, Gabe Feldman, director of the two Lane Sports Law Program, and co-director of the Tulane Center for Sport. On this episode, I'm rejoined by Rakesh K lead outside counsel for the NCAA. In the now, finally, mercifully approved house settlement. Rakesh and I talk about how the settlement will actually be operationalized. Side note, I used to make fun of people who use the word operationalized, and here I am using it in a podcast intro, but I admit it's a helpful word, but we'll also discuss the possibility of an appeal of the settlement, why he believes that this settlement will lead to more legal stability for the NCAA. We will also talk about the new wave of eligibility lawsuits facing the NCAA, and much, much more. Here we go. Welcome back to the podcast, Rakesh. Thank you so much for coming back on. Thanks, Gabe. It's great to be back. I think you are now officially the Steve Martin of the podcast. You, I'll take it. I'll take it. I've got the jacket, I've got the jacket ready for you. And although I'm gonna wait, 'cause I think you're gonna be back on, is my guess at some point soon enough. So I don't wanna put a number on the jacket yet. Oh, I know. But I should have the jacket the next time I show up, don't you think it's true. All right. I'll make it the jacket, but it'll be one of those removable numbers. Alright the moment we've all been waiting for Judge Wilkin, finally mercifully approved the final settlement in house. I want to talk more about what happens now, but before we get there, if you could just go through the, for wrap up. I know there's obviously still potential appeals to come, but in terms of the final approval and what happens in the next. Few weeks in terms of operationalizing this, just from a sort of logistics perspective given that we've all been waiting for this for so long, it's finally here. Sure. So I think as expected, judge Wilkin wrote a very thorough opinion given the stakes of the case. And it was evident from the final approval hearing that she was thinking really carefully about all of the issues that were presented and knew that if she was gonna approve the settlement, she would have to write an opinion pretty much addressing everything that anyone had raised at any point during the settlement approval process. And then there was the kind of one issue she asked us to revisit that I knew she was gonna be, I think we all knew she was gonna be very focused on. So it did take a little bit of time after we submitted the settlement, but I think that was understandable given the stakes of the opinion and given the possibility of appeal and all that, that she wanted to make sure she addressed everything and tried to get everything right. And so that's how we ended up on Friday night with a really thorough, I think, 76 page opinion at the end of the day. That really to me, runs the table on all the arguments that were made against the settlement, and pretty convincingly explains why the objections aren't legally sound. So where we go from here is, we have that opinion, we have approval, and so it's even more, I would say, full steam ahead in terms of actually implementing the settlement. It is, I guess there's two pieces I could talk about. One is everyone who objected technically has the right to pursue an appeal of the settlement, and so they can go to the Ninth Circuit Court of Appeals in California and say the judge approved the settlement, but the judge got it wrong. The settlement should never have been approved. And that appeal, if they choose to go that road. And we can talk about whether they'll do that and whether they should or should do that. But if they choose to go that road, it won't stop the injunction. The revenue sharing, the future benefits, the roster limits, it won't stop any of that from going into effect unless they try to get some kind of emergency order from the court which thus far they haven't done. But it would, just take, could take months, could take years, I would bet on years for that settlement to resolve itself because the ninth circuits a pretty slow court in terms of moving. And in the meantime. The injunction will happen. I think the kind of new world order will take effect to some degree, but if they do object, then the damages payments will be delayed. And so I think that's something that has to be weighed on that side. And then the second piece is implementation of the actual settlement. So there are a lot of details that are specified, but before, before we get to implementation, lemme ask you one a couple of questions about the appeal process. You, you mentioned that they haven't sought any emergency relief yet. It seems every day that goes by it becomes harder to argue it's an emergency if they haven't filed something. Would that, would, is there an opportunity to file something back with Judge Wilkin asking to stay the injunctive relief pending appeal? Or would they have to go directly to the ninth Circuit? I. It's actually both. So we dealt with this in the Microsoft merger case that I handled a couple years ago. I think technically as a formal matter, if anyone wants to stay of the injunction pending appeal, they have to go to Judge Wilkin and ask for one and only when she turns them down. Is it typically the case that you go up to the Ninth Circuit. Now this is a little unique because some of the objectors, particularly in this latest round of back and forth over the roster limits, asked for her to stay the injunction and she said no. So in a sense, they've already asked for her to do it. So whether they think they need to do that again, whether they have to do that again, that's a kind of complicated appellate preservation issue that is probably boring to everyone in this world, except maybe you and me and probably to both of us. And then, in theory they could go up to the ninth Circuit and also ask the ninth circuit for a state pending appeal. Now one thing to note about that is if they're gonna try to get a state pending appeal, they have to convince the ninth Circuit in some pretty short briefing that they are overwhelmingly likely to win on the merits, and that they're gonna get the settlement approval reversed on appeal, which I think is a challenging thing to do, given that settlement approvals are typically reviewed for what's called abuse discretion, which means the judge has pretty wide authority to make a decision on the issue. But as you said, if they're gonna take that route, it would probably be incumbent on them to do it sooner rather than later, just based on, the idea is that there's some kind of immediate exigency. Usually the way you show that is by acting on it. And then if they don't, the appeal will proceed in more the ordinary course where they'll get a chance to file a brief. Then we, and the plaintiffs will get our chance to file a brief, they'll get another brief, and then the case will be set for argument. And the ninth circuit is a, a very variable court. It could take years, it could go quicker. But my guess is the appeal will take a fair bit of time to resolve. And safe to assume that if there is an appeal, it would likely cover more than the final issue because the roster limits for year one. If it's the average time for the ninth circuit, it would be moot by the time it's resolved because all these athletes would be done with this year. So I, I assume they can appeal on any grounds that they've raised so I should say, probably goes to the thing. I don't think there should be an appeal. That's fair. I do think the settlement structure is, that is breaking news. That's breaking news right there. NCAA lawyer does not think appeal should come. Yeah. Yeah. That'll be a, that'll be a headline for sure. But no, I think the settlement structure has a lot of immediate benefits that are gonna flow from it, and I think the damages payments are significant as well. And so anyone, choosing to pursue an appeal or some kind of stay pending appeal has to weigh, they really wanna stand in the way of this transformative change and pursue this appeal. Now, to answer your question, any issue that was presented to Judge Wilkin during the approval process, I think it's fair to say, is fair game for an appeal. So that could include the challenges to the cap, it can include the challenges to roster limits and so on. With that said, I think Judge Wilkin took her time and did a really thorough job of addressing each of those issues and explaining why this, the objections raised. Either don't matter or aren't sufficiently weighty under the law, given the task that was in front of her, which was to evaluate whether the settlement was a reasonable compromise of some litigation. That, on the one hand posed huge threats to the NCAA and the conferences in terms of damage exposure. But on the other hand, there had been decades of litigation to date and the relief that had been obtained was in comparison to the settlement, relatively modest. So I think for all those reasons she did a good job of explaining why the settlement is a good outcome for all involved. And that's something that I think if you're gonna appeal, you have to think, am I really gonna be able to show that she abused her discretion and making that binding? I think that'll be a tough sell I think it is fair to say that the issue that got the most public traction and the most attention was definitely the roster limits issue. And with the carve out that was created for designated student athletes, I think it will be interesting to see how many of the folks who raised these issues even have a live controversy going forward. Because in essence, we created the status of. People who can be on a roster limit without counting against the roster limit for their entire period of athletic eligibility. And I actually think that was probably more than Judge Wilkin wanted when she set out and gave us some homework to do. But it seems like she was pretty pleased with the fact that we had done it. And in theory, that should take a lot of the objections off the board for folks who, seem concerned about the transition, the immediate transition to roster limits as opposed to roster limits as a concept out there. And that's why I think it may be more likely that we see the appeals based on the cap itself or the gender equity issues, or one of the other ones that I think some of the lawyers probably believed were stronger arguments than they, the ones they led with and then were rejected. Some with just quick rejection somewhere, obviously Judge Wilkin asked you to come back and clarify some stuff, so it'll be interesting to see if and when an appeal comes and what's in the appeal. Or, and so before we get into implement implementation, can you just give us an update on the status of those who opted out of the settlement? So I'm not talking about the schools, just for people who are listening who often get these confused, but the potential members of the class who decided to opt out and continue their own lawsuit seeking damages. And so the Fontano proposed classes is one of those. What's the latest on that and how do you see that moving forward? Yeah, so those cases have been largely in stasis pending final approval, right? For the obvious reason that you only opt out and pursue your own case if the settlement's gonna get approved, if the settlement's not gonna get approved, there's nothing to opt outta. So I think there's something to the order of. Let's say a few hundred student athletes who opted out of the settlement as against I think several hundred thousand who were potentially affected by it, right? And by and large, the students athletes who have opted out have joined a case called Fontano, which you and I have talked about in the past. And I think you've had some of the lawyers from the case on the PO in the past as well too, which is pending in the district of Colorado. And so at some point in the next few weeks, that case will frankly start moving. It hasn't really been moving, but it'll probably start moving in some way. And a few important things to know that case is not a class action. So unlike house where there was, a group of three student athletes at the beginning who were bringing claims on behalf of everyone, the best way to think of Bono is it's literally 200 or 300, whatever the number is. Individual lawsuits that are just mushed together for case management perspectives. So each of those student athletes has to make their claim as to why they were injured under the antitrust laws, make their claim for injury, make their claim for damages and so on. I think it's fair to say that case will take a while to resolve. You look at just House, it took us a long time to get from complaint filed even to discovery, even to the summary judgment stage, which we didn't even complete. And these cases, I would say are very much at the starting line. But I anticipate that those cases will be litigated over the course of the next few years at minimum. There's some relatively famous student athletes in that group. There's some student athletes who I think are more focused on scholarship or roster limit issues. As I think you and I have talked about historically, scholarship and roster limit type claims have not really fared well in the courts. And I think there's reason to believe that those decisions are well founded. But of course, there's a new judge and new litigants and so we'll see how the case plays out, but that'll be around for a while. But, just by the nature of the case. Not to trivialize, but like two to 300 student athletes, quite different from two to 300,000. So it's definitely different in scope. Got it. Okay, so let's go to implementation 'cause that's what people really want to talk about. I want, I wanna talk about the other stuff that everybody wants to hear about implementation. So let's move to that there's a lot of work to do. A fair amount of work has been done already to get ready for the settlement to go live as I think folks have seen. The NIL reporting database, I believe is gonna be active in a couple days. The official start of the academic year for purposes of the pool structure and for purposes of the settlement is July 1st. So between then, schools are gonna make their kind of final decisions about whether they wanna opt in or not. I think there's some rules that have already been passed by the NCAA that were passed in anticipation of final approval. I expect you'll see more rules that are passed that kind of accomplish the two tasks of continuing to streamline and refine the rule book, to take out things that aren't as necessary anymore, but also build structure around the new rules. And then, as I think everyone knows, the New College Sports Commission with this new CEO who was announced on Friday night they have a lot of work to do as well in terms of setting up enforcement against schools, enforcement against individuals, the operationalization of the new NIL Go platform cap management. So there's a lot of logistics and a lot of rules that have to be put into effect, but I think we've laid a good groundwork prior to final approval. There's always this tension. You don't wanna do everything before you get final approval. If you're not a hundred percent sure you're gonna get final approval. But we were pretty confident we were getting final approval. So we did a fair amount of work and there'll be more to be done. And then I think the anticipation is, hit the ground running very quickly on a lot of these things. And it's fair to say that there will be some bumps in the road. I'm sure early on there'll be unanticipated angles that we didn't see coming, or new scenarios that weren't quite anticipated. But in the past when we've dealt with those, and certainly when Judge Wilkin has raised issues that we weren't we didn't think were gonna be issues, but there were issues, we figured out ways to resolve them, both between each other in terms of the NCA and the conferences, and then also with the plaintiffs. And I suspect that'll continue as we go forward. And obviously there'll be a lot of new actors who are involved in the new system as well, who may have something to say about it. And when you mentioned that they're still working on the rules, is that. Is the NCAA part of that or is that now the power four, power five, or what, how does, not talking about the actual decisions they're making, but just the process of who's at the table. I'd say it's a collaborative process. I think it's fair to say that the A five group is very much in the lead of that process because particularly when it comes to the things that the College Sports Commission, LBI, Deloitte and all are gonna do, that's very much kind of their primary enterprise. But I think they recognize that there's a lot of learning that can be done from working with NCA folks who have done it for a long time and just a lot of scenarios that the NCAA has seen over the years that it's worth kind of thinking through and game out a little in advance. Okay. I am sure you don't read every article that's written about the case and what happens next, but I'm sure you read some of them. And the, I would say nine out of 10 that I've seen have the same theme, which is that the settlement is gonna lead to more litigation rather than resolving most litigation. So can you explain you and I have talked about this before, but now that it's actually finalized, can you talk about why you think or the NCAA thinks this is actually going to lead to more stability For sure. I think first and foremost, one of the biggest sources of instability and frankly the biggest cases with damages, exposure with liability, with threats to operations, all that have been these. Huge class actions brought by student athletes against the NCAA over the course of the last couple decades. And you'd have to go pretty far back in time to find a period of time where there wasn't a probably billion dollar, if not multi-billion dollar class action complete pleaded against the NCAA and a five pending usually in the Northern District of California in front of Judge Wilkin. So that has been taken off the board through this settlement and we'll have this 10 year process. And I think as we've talked about before, so I won't repeat it over the 10 years, I'm sure folks will come in with objections or things that they think can be better and the judge will hear those and take them seriously. But I think by and large, it's a structured process now that's making this system work. As opposed to the process of incremental lawsuit followed by incremental lawsuit, followed by incremental lawsuit. So just taking that off the board is a huge, I think, release from the organization's perspective, from everyone's perspective and very much in the legal sense. But I also mean just in the sense of like mental energy and time devoted to focusing on those types of litigation. So then what are the other sources of potential litigation out there? And there's really two, I think. One is, are schools, institutions, states, student athletes? Are they gonna be willing to be bound by this new system? Are they gonna be willing to follow the rules? And you started to see, I would say, some cracks in that towards the end of, pre house era, I think you would say, like for example, the Tennessee and Virginia State AG lawsuit, I'm sure we may talk about some of these eligibility suits that have been pet percolating as well. There's a little bit of a, do people actually do institutions, do schools actually want to be bound by these rules? And when the rules are enforced against them as opposed to others, are they gonna say, okay, I stand by that. I'm reasonably optimistic that will work. I think what we've heard, even today, the commissioners reaffirmed that their schools want this structure to work. A lot of time and effort has been put into coming up with it. There were months where it was just, I think schools and conferences trying to get their heads around what the world would look like, whether they were comfortable with it, what the key features would be. And so it's been, at this point, I would say so thought through, so ventilated, so worked out that I'm hopeful people will think, okay, we have this new start, we have this new structure, we're gonna have it work. The other piece, I suppose is this. Third party, NIL organizations challenging regulatory authority over NIL, that's being exercised by NCA and excuse me, by the NCAA and the conference, but really by the College Sports Commission. We'll see what happens on that one. It seems like by and large, many of the folks who said that they were gonna have issues with this new system are finding their ways to make it work in this new system. Because one of the things that's notable about this new system is that yes, it is probably a little bit uncertain as to exactly how the associated entity, individual, how the reporting structure is gonna work, but it is also quite sure that by the letter of the law, many fewer NIL transactions are even subject to scrutiny in the first place. So there's a lot of third party NIL activity that I think prior to the settlement was at least theoretically subject to enforcement. Now there is no prospect of enforcement for many of those deals, so not bonafide NIL deals. There's also a lot of payments that are flowing directly from the schools, and one of the reasons that collectives even popped up in the first place is that there weren't payments being made from the schools directly. So I think the hope, and I, again, I'm tend to be an optimist, so I would say my optimism is that you won't see a lot of that type of litigation either on the theory that a lot of the types of payments that you know should be happening are not allowed. And the sort of small set that aren't, people will restructure and find out a better way to make it work because it would probably be better for everyone to work out a functional NIL arrangement that has complicated legal process that results in potentially a student or an institution not being able to put their best foot forward on the field. So those possibilities of litigation are out there and we'll see how often they are. I know there's a lot of people on Twitter who think they're gonna be much more prominent than I do. I'm hopeful that I'm right. And just to clarify for people who are not as familiar with the settlement, which is basically everybody but what you're talking about there with the deals that won't be subject to that heightened scrutiny or the NIL deals that are not with an associated entity, not with a booster or a collective with just your regular world, third party who wants to do a deal with an athlete. Like I, I would say most people envision the NIL era to to, if not exclusively include to be the primary deals we would see. And then things have morphed into other things and it's those other things that are deals with the, these associated entities, these boosters are collective, that are gonna be subject to that stricter screwed. That's precisely right. I think maybe try to simplify it a little bit. There was a period of time, probably in the early, I think it was probably say early. The late 2010s, early 2020s, maybe it's earlier than that, but sometime in the 2010s when influencer economy started to become a thing. And so you would go on a college campus and there would be people promoting Amazon in their dorm room. And it seemed quite odd that student athletes were the only people who couldn't do that. And that the reaction to that, I think was something where the NCA actually pondered legislation a long time ago to be somewhat permissive. Then Alston happened, and June, 2021 happened. A lot of changes occurred since then. But I think the core of what NIL, the core NIL, that people always wanted, thought should be allowed. And I think, there was probably a sentiment should be allowed is the type of real third party NIL, where a brand wants to endorse a student athlete or like a local business wants to say, Hey, we want to be affiliated with you because you represent the university. And then because there were other restrictions on what schools could pay, this whole other thing popped up, which were these collectives that. Aspect of things is really the focus of the associated entity and individual transactions that are under review. I suspect hope that will be a minority of transactions, especially now that the pool allows direct payments to student athletes and all the other stuff, I think can go forward. And the settlement also provides an arbitration, right? If you deal is rejected, that an athlete can appeal. How far along is the NCAA or in the ar that arbitration process like setting up the logistics and all of that? I'd say in process I believe some rules have been passed already actually, that govern kind of some of the broad strokes of arbitration. So for example. If you have a deal that's flagged, you don't have to go to arbitration. You can revise the deal, you can give back some money the kind of delta of money that isn't allowed under the deal, or that's flagged as not being appropriate, or you can go to arbitration. And so there's, I think at least some procedural rules have already been put in place contingent on final approval, which we now have to lay out what that will look like. And there's more to be done on that front in terms of in, in addition to picking arbitrators and actually setting, what the individual ground rules of arbitrations will look like. But I'd say we're in a good process for that to work as soon as it needs to work. And in terms of the appeal, if there's an appeal to the arbitrator, is it both on the deal being rejected in whatever the penalty is, or is it only on the deal itself? So if the deal is rejected or I guess there's no penalty if the deal is rejected because there won't have been a deal. Yeah, I think I, I basically, I think when a deal gets flagged, it'll say this is a non-compliant transaction. And I guess if someone enters it into it anyway, it implicates the whole penalty apparatus of some sort. But if a student wants to challenge the deal, any potential penalties that would come out of signing that deal gets stayed anyway. So the arbitration can work itself out in their interim. And then if it, if they go forward with the deal anyway, that I assume is not in that arbitration path if the student then gets disciplined for doing an improper NIL deal, or is that still within that? I think those kind of finer points probably are still in the process of being hashed out. I think broad strokes, the idea is. There'll be front end possibilities to go in and say, Hey, I'd really like to just make this work by restructuring the deal, or I'd like to take a second look at it, or I'd like you to reconsider. There'll be a front end process. And then when a decision is made, that's when the arbitration kicks in. I think the intent is for there to be no adverse consequence while the arbitration is going into process. And then what happens after that? We'll see. And I believe the timing of all this is designed to be pretty quick. So it's not like you'll have some really long period of time where all this is hanging out and no one knows exactly what's gonna happen. I believe the settlement and then the rules are gonna put some kind of pretty clear guidelines around how quickly things were supposed to happen. One question about the pool payments and the distribution of revenue to the athletes. I believe, I recall that the settlement requires the schools to report how much they're paying to teams or athletes, but I can't recall whether there is a requirement or there is something that would disclose those amounts to the public. So we would know how much each school is spending on each particular athlete or each particular team. So I don't think there's an intent for individual payments to individual students to be made public for a variety of reasons. I think in the first instance that information will need to get reported by each school to the enforcement entity, the College sports Commission, for purposes of making sure that schools are actually complying with the cap. And then on a yearly basis, the conferences in the NCA will submit a report to court, to the court kind of laying out the totals so that it's clear what new benefits were provided from the pool, which is relevant for a variety of reasons under the settlement agreement. So as to the individual payings to individual student athletes, that'd be quite surprised if that becomes public, but the total amounts that's envisioned to be public at some point. Got it. Okay, so let's now turn to the next wave, I think we can call it, of lawsuits against the NCAA. All related to eligibility issues and the four and five rule that you get to play for four years, within a five year period. And then there was the whole COVID thing that obviously people know what the COVID thing was, but that it allowed students to play longer than they would normally do under the rules. But we have a series of lawsuits about what counts towards that four or that five. And then the most recent one, I think it's the most recent one that's saying there shouldn't be really a limit at all. That even though he played a. Four years of college at one school that he should be able to play a fifth year. And because of all the NIL money that these athletes are making, he's seriously damaged because he is not likely to make it in the NBA and if he can't stay in college, then he is losing out on all this money. Can you talk about generally, 'cause these cases are all, were mostly still pending generally those cases. Sure. Something that is taking up a new amount of our time, I would say. So I guess to, just to give a, like a brief piece of history, not to belabor it, but for a long time, pretty much forever the NCAA and member institutions have had rules around how long student athletes can play. And that rule has been pegged, as you said. As generally speaking, you can play for four years during a five-year period. Where does that come from? First of all, most NCAA institutions in Division one, I think all are four year academic institutions. You're expected to get a degree in four years. So as a starting point, the idea was you're gonna be in college for four years to get a degree. You can play college sports for four years. A fifth year has been added onto that because there's just any number of scenarios that could arise that complicate your ability to play for four years. You could get injured in your first year. There's red shirting, and so essentially this kind of. Almost prophylactic. Prophylactic. Fifth year was added on where you get a fifth year to complete your four years of eligibility. And these rules have been around for a long time. And prior to Alston, every court that confronted these rules, every circuit court upheld them. So you had the third circuit, the fifth circuit, the seventh circuit, the sixth circuit, the ninth circuit. Really there was no circuit that looked at these rules and didn't say they were valid. And some circuits said this isn't even an antitrust issue at all. This is just about a membership organization saying what the rules are to be part of the membership. This is saying what the product is, which is college sports. 'cause it wouldn't really make a lot of sense as college sports if you had, 10 year, 11 year, 12 year people continuing to play the sport. And some other courts said, maybe we won't go that far, but we will say that these rules are presumptively pro-competitive, where we don't really need to do years of antitrust litigation to just say, it's okay when you're having a sport, a product, college, sports, to say that you have to be a college student playing the college sports and generally pursue a degree. So that's a background. And then as you said, I call that the sorry, I call that the reverse quick look. Rule of reason. The, yeah it's friendly, twinkling of an eye. Yeah, exactly. I think it, people have called it different things. Some courts have called it exactly as you said. Some don't wanna use those specific terms, so they just say, presumptively are probably pro-competitive, or they rule on the motion to dismiss sage. But that's the total gist of it. And then Alston happens and there's, there were, as a general observation that the rule of reason applies to the NCA's rules. Now even within Austin, there's a passage where the court says. There's still gonna be rules that sports leagues pass that are, as you said, totally fine under a quick look because you have to have some rules for sports to be played at all. And since NIL has come into play, since collectives have come into being, now that there's the house settlement, there's been, as you said, this wave of students who say I competed for four years, but I want a fifth because I'm making money playing college sports and I think I should get to keep doing that. And so these cases started out primarily as exception cases. So for example, the first case that I recall is this case paa, which is now up on appeal. And it's a successful Vanderbilt quarterback who played, who was exhausted his five years of eligibility. But two of his four years of playing were in junior college and he says, those shouldn't count. I should get four years in division one. And then there was another lawsuit filed after that brought by a student athlete who said, I had two years count, but those were in division two. I should get four years in division one. And now, as you said, there's the most recent lawsuit, which is the one we're litigating in Tennessee, where a student athlete is saying, I got my four years in division one, but I want a fifth. And the unifying threat is, I can keep making money playing college sports. It's a good thing for me to get to play college sports. Therefore, these rules need to go. And Alston, presumptively said, any restriction on my ability to obtain NIL compensation is totally out the window. Now, if it were the case that Alston had actually changed the game, we might be losing a lot of these cases. But I think good news, at least from our perspective, is I think we've been having a fair amount of success in these cases because by and large, the way the cases are litigated is that the student athlete comes in right on the eve of not being able to play for the upcoming year and says, Hey, there was this thing that happened a bunch of years ago, like I played in junior college two years ago, or I played in division two, two years ago. Or I've played in four years of division one college sports. And there's now an emergency, which is, that is stopping me from continuing to play. And so I should get what's called a preliminary injunction, which is basically a court order saying, with very little briefing, with very little argument, with very little process. I should get everything I want, I should get to play for the next year before you can even have a full trial. And courts have split on this. I think we've won some, we've lost some, but I think by and large we've been winning more than we've losing. Because these cases really go to the fundamental question of, can you say that college sports have to be played by college athletes or not? I think I argued one of these cases in the seventh Circuit really simply. It was the first one to go up on appeal from a district court decision we actually lost in the district court. And the judge asked the plaintiff's attorney this question, she said under your logic, why couldn't someone play for six years or seven years, or 10 years, or 13 years? And the answer really is. Once you accept that there shouldn't be eligibility rules, there's really no reason that you shouldn't get to pay for 10 years, 11 years, 12 years, which is why you should have eligibility rules. So these cases are going on. I suspect they will continue for quite some time. I know I've been talking for a while, so I guess I'll bring it to a close with two pick observations. So first is a fair number of them are going up on appeal, and I think once appellate courts start issuing decisions, that will probably provide some clearer guidance about where we should go from here. Second, the house settlement actually affirms school's abilities to condition academic benefits and eligibility and athletic benefits on a four years, over five year periods. So even in the settlement itself, the new revenue sharing payments that could go out, those can be conditioned on accepting four over five. So in theory, that should be another thing that hopefully makes this not a giant big wave of litigation, but like with all things, there's a bunch of individual cases, there's not a huge disincentive for people to bring the lawsuit. And as I said earlier, the big question is, are schools going to by and large enable these lawsuits and say, even though eligibility rules are generally a good thing, I don't like them when they're applied to me and my particular student athlete. Or are they gonna say, actually it's a good thing for us to have rules. And we're not gonna say, blow up the rules just for our individual student and our individual case. And that's gonna be a little bit of an asset test as these cases continue and. So a couple things, quick things follow up on that as we start to get more appellate decisions and there's a possibility, if not a likelihood that there will be a circuit split. Do you think this is headed to the Supreme Court and Supreme Court? If it is, how quickly do you think it could end up in there? Because obviously it's gonna take multiple appellate court decisions before it's even a possibility. But do you see it possibly headed that way? I know you don't think it should head that way, and you think you should win all the appeals, but if you're getting ahead of my you're getting ahead of me, it's good anticipation. I don't know. I think that anytime. One condition that could lead to the Supreme Court. Taking a look at this is starting to play itself out, which is to say a lot of district courts in a lot of different circuits are issuing decisions and they're not all agreeing with each other. And one of the classic ways cases get up to the Supreme Court, as is if different federal circuits say different things about an important legal issue. Now there's a long way, I would say between here and there for a couple reasons. First, we've only had one appellate argument so far. There was an argument in the seventh Circuit a couple weeks ago where a student athlete won a preliminary injunction against the NCAA and we appealed and we argued that another one is gonna get argued at some point in the fall up in the sixth circuit. And so we'll see if the law develops in a way where these are the, are these fractures in authority? I will say that if any appellate court sides with the plaintiffs in these cases, they will be creating a circuit split because every circuit has basically addressed the question already. An argument one could make on the other side is that was before Alston, so now we need to wait and see what the consensus looks like post Alston. But you need to get a bunch of circuits to say stuff on this. And then I would say in addition to that, there is this question of whether these lawsuits will continue to be a thing now that the settlement is in effect and schools can, in theory say. Listen, if you wanna compete at our school and get pool payments, a condition of doing that under the settlement is agreeing that you're gonna compete for four years in a five-year period. And if the schools want that to continue to be the rule, and by entering into the settlement, they indicated that they do. And if they're willing to have it be enforced, then in theory, this should be a question to use some Supreme Court jargon of diminishing importance, which is to say it's an issue now, but it may not be an issue in a couple years because the issue will largely resolve itself by the settlement and contracts and thinking like the, things like that taking effect. I think it's just too early to tell whether it would make its way up to the Supreme Court or not. And then the second question I had do you get the sense that maybe unlike the NIL litigation, where there seemed to be a little bit more consensus, I would say on both sides of the political spectrum, that these eligibility cases are more likely to fall on the traditional conservative liberal split. I don't think I've seen any kind of partisan breakdown in terms of how judges are approaching these issues. There's a fair number of judges who have seen them now. I think that the nature of PI litigation, which is a challenge we face, is that typically you'll have that preliminary injunction. Yeah, sorry, preliminary injunction litigation not private investigator. Just for those who are yeah. I know. I have to remind myself that the terms we use on a daily basis are actually pretty rare and nerdy terms. But in, in preliminary injunction litigation the dynamics are a little bit challenging because on the one hand, under the law, the person who's coming in, the student athlete has a really high burden of saying, Hey, you gotta freeze whatever the rules are and give me what I want right away. On the other hand, it's typically a pretty sympathetic person, it's someone who's had a good experience competing as a student athlete and maybe didn't get the full experience that they wanted because they had an illness in the family, or they weren't able to focus on the game for one year. And those can be compelling stories that I think are moving to some judges. So I don't think it's really a. Partisan issue. I think it's a little bit of a question of how much the specific facts of the case, affect the judge addressing the issues when it seems like it might be easy to just say, Hey, just carve out an exception here. I think the striking thing about the Seventh Circuit case was the judge didn't really say our rules were anti-competitive. He just said, you should just have slightly better exceptions for this one particular person in front of me. The other thing that I think is standing out to some judges, which again isn't really a political issue, but in compensation cases, there was this feeling that this is every student athlete shot and you're taking away their ability to earn money while they're doing it. And right or wrong, that was an argument that applied to pretty much every student in each one of these classes. In these cases, whenever a person is coming in and asking for a fifth or a sixth or a seventh year, by definition, they are taking a spot from someone else who would be a freshman occupying their spot in their first year. Like when the person says, I want to be the sixth year point guard on this team. There's probably a first year who wants to be the point guard on that team and get to experience college athletics for the first time and get all these great benefits. Who isn't gonna get to do that if you allow infinite amounts of playing time for more senior folks? And that is something that I think judges have started to take on and saying, this isn't really an antitrust issue. This isn't really you harming competition. This is just saying who the people are who get to compete at a given time. And so in that sense, I think the cases do have a very different feel than the compensation cases. Yeah, and it's interesting because the, with preliminary injunctions, as the, there is a sliding scale so the greater the irreparable harm than the likelihood of success in the merits can maybe not be as strong. And so that may skew some of these cases where the judge is sympathetic, as you said to the plaintiff and is able to, in their mind, grant the injunction because the harm would be so great even if it's not entirely clear that they'd win the case. So yeah, I don't know if that's happening in these cases, but yeah, I think it's happening a little bit. For sure. I think taking the law on its own terms, you don't get to that balancing until you show the two things to some degree. So you have to show irreparable arm and you have to show that you're likely to win. And then once you do both of those things, you can balance them out a little bit. But, you read some of the opinions and I do think judges are trying to do the right thing. It seems pretty clear that the balancing is entering the arena a lot earlier than it perhaps should. Okay. Last couple of quick ish questions. The, whether it is the f no case, and if that claims go forward or it's a case challenging the third party, NIL restrictions, what is the sort of, I don't wanna say new, but what is the current NCAA antitrust defense for these compensation restrictions? If the dividing line was they can be paid, their educational expenses expenses related to education, but not any more than that. Now they are getting more through NIL and the pool payments. So what is the, what's the new, the current line that can't be crossed? I think it's gonna depend a little like what we say is obviously gonna depend a little bit on who sues us because there's gonna be different equities in different cases if it's one or the other. To take the two examples you gave, I think in font, no. It's folks who are now either they. Either they participated in the past or they're currently participating in the current system and they're coming in and basically saying, I would've gotten more than I did in the real world in this alternate system. And so one of the big questions and one of the things we're gonna have to prove is that is actually true, and especially given the arguments that have been made over the last few months by non-revenue student athletes about what happens when you move to a less restrained market. I think those might actually be somewhat challenging arguments to make to say that I was actually harmed by the status quo before, because many of the people saying, I don't like how much money I was gonna get into the settlement, are also people saying whoa, I don't like that The settlement is potentially taking opportunities away from me. I'm not sure that's right, but there is a little bit of a tension between those arguments that goes this antitrust issue of injury, that's one of the many issues that's gonna get litigated out of that case. Then for other cases that are forward-looking. So the next lawsuit about the next issue, I think the answer is pretty simple. We've come up with a good reasonable system to balance these various equities. We put it in front of a judge. The judge has said it's an appropriate way to balance antitrust issues and other issues and resolve the case. And I am not saying that's a, the case is over because we have a settlement, but the fact that we have the settlement and the fact that it is providing these benefits, it should be a deterrent to litigation in the first place. But if the litigation comes, I think the fact that we've created this new structure and actually done a lot of things that people have said, boy, you guys are never gonna get around to doing that. You're just gonna fight the last door. I actually think that'll go a long way in the next case is to say, we actually made a bunch of changes and the system's working pretty well. I wanted to ask you about Sunday ticket litigation, but I don't wanna keep you any longer, so I'm gonna ask you about that next time I have you on. But my last question is in the Ziegler case, in the Tennessee case, they raised the Tennessee state law and along with the antitrust issues. So whether it's the Ziegler case or another state that comes along and passes a law that maybe says you can't restrict the number of years that a student is eligible to play sports or that you can't restrict NIL compensation, how do you deal with these state laws that are potentially inconsistent with either the house settlement or other rules that might be created? So there's two ways to approach that. I think the first answer, and the best answer is the only real solution to this issue is for Congress to get involved. I think one of the asks that has been consistent to Congress, and one of the things that I think really is important to make college sports work in a functional way is state law preemption to the extent it's inconsistent with the settlement. And to basically say, look, we have a new system. It works. The schools have agreed to it. They want to be bound by it. We shouldn't have this kind of independent race of legislatures trying to undermine it. It doesn't really work if everyone agrees that the rule should be, whatever that set of rules is, and then the next day state X says, but for us, we want a little bit more. So that's the actual real answer to that question. And I'm not someone, even though I live in DC who is prone to making predictions about what Congress is gonna do or not do. I would like to think that the fact that we entered into this settlement and really changed college sports in a very meaningful way would be a sign that we're interested in being part of solutions and would be something that would encourage them to provide. I think limited additional help because I don't think we're asking for something other than to say the settlement should be the rules. But whether that'll happen, I don't know. In terms of the specific answer, a lot of these laws are not always what they're made out to be. So we brief this issue over the weekend with the judge, and I think just looking at the Tennessee law, there's any number of reasons why it doesn't really apply. In a case like this one, the law says it's not supposed to be used in any action for injunctive or equitable relief by a private party. So that alone should seem to say you can't use that loss. You can't use the law in a lawsuit to get injunctive relief. The lawsuit talks about current student athletes and ninth graders. I don't think it's intending to apply to folks who have aged out of college sports. But anyway, there's a number of reasons why that law probably shouldn't control the outcome of that case. Probably most that the fact that the law was passed in a state where the flagship educational institution, who I believe supported that law, is also a party to the house settlement, or at least is a beneficiary of the house settlement. So it seems a little upside down to say that the law somehow actually undoes key pieces of the house settlement. So we'll see what happens in the individual case. That'll be for the judge to decide. We've made our arguments on that. The broader issue, I think, ultimately is one where hopefully Congress will step in. Okay. Anything else that we should know now that you're, again, the house settlement, it's not officially in the rear view mirror because there are still possible appeals, but given that it is mostly officially official, any parting wisdom or lessons learned or funny stories? I dunno. Any funny stories? I dunno that I have any kesler. I don't know if I have any parting wisdom or anything like that, but I will say that it is. It's pretty exciting to have the settlement approved and to see where we are today. I started working on these cases seven years ago, I think maybe eight years ago. I think I told you at one point before I left my firm to go into the government. My old firm, we actually pitched for Alston. So I've been around these cases for a really long period of time, and the degree of change in terms of how we litigate, what we argue, and frankly what the terms of a settlement will be, have changed. 10 years is a long time, but it's also not. And I think a lot of that change has occurred, I would say, in particular, in the last few years in particular. So it just feels yes, there are a lot of questions. Yes, there are a lot of folks who are skeptics of this project. Yes, there are people who think that there may be new ways of litigation and things like that. But I would say I hope that, at least for a moment, that should not detract from what is I think, a really big change in college sports. That I think is one of the biggest things that's happened to college sports in a long time. Something that I think is good for college sports and good for student athletes. And, we'll see what happens over the next 10 years. But as I said, when I saw you in at the conference that you graciously hosted I consider myself to be an optimist about this stuff, and I'm hopeful that'll be right. I celebrate your optimism and I appreciate your time and insight as always. And I have to see how often you've been on, like what, how much time we go between episodes. But I'll give you a little bit of a break until the next big story comes up, and then we'll talk about Sunday ticket lawsuits and whatever else you end up getting involved. So thank you. You should give your listeners a break for me, Gabe. Oh no. I look your ratings gold, the the sponsors are just eating you up. So it's it's good for business. But thank you for coming on. Be well and I'm excited to see how this all this unfolds. Thanks a lot, Gabe. Appreciate you. And thank you for listening, and thanks as always to my loyal sponsor, the Tulane Center for Sport. See you next time on Sports Wise.