“… and they don’t want to be told what to do.”

One recurring question in the wake of Jordan McNair’s death has been to ask why the NCAA hasn’t taken the lead in regulating player safety issues.  You only get one guess.

The NCAA could end up becoming more liable to lawsuits if proposed measures aimed at protecting student-athletes pass, just one of the barriers to the organization taking a more active role in player health and safety issues.

As the NCAA introduces regulatory policies like guidelines to prevent non-traumatic deaths and improved accreditation standards for strength and conditioning coaches, it might expand its legal duty to provide care, thus making it more vulnerable to civil negligence claims, according to attorney Bob Wallace, who represents athletes and sports teams for national law firm Thompson Coburn. Two Oregon football players hospitalized in a January 2017 workout have filed such cases against the NCAA and the University of Oregon.

“When organizations or companies or industries are regulating conduct,” Wallace said, “there’s always a balancing act of how far can you go, should you go before you shift a bunch of the responsibility onto your organization.”

NCAA spokesman Christopher Radford, however, told Sporting News in a statement that “NCAA health and safety efforts are not calculated by whether there is increased legal liability but on what is in the best interests of our student-athletes.”

Fear of liability is one of several explanations offered by legal analysts, medical experts and college sports officials as to why the NCAA has not substantially addressed the issue of student-athlete fatalities.

Hey, money trumping doing it for the kids, whodathunkit?  And we have Mark Emmert to thank for it, according to Jay Bilas.

If the NCAA was worried about how regulation might impact its legal liability before 2013, the events of that year seemingly added to its level of concern, according to ESPN college basketball analyst Jay Bilas and several legal experts.

Penn State took the NCAA to court after the latter imposed heavy sanctions on the Nittany Lions following former assistant coach Jerry Sandusky’s years of sexual abuse of children (sometimes on Penn State property). At first, the NCAA imposed a $60 million fine, four-year postseason bowl ban, scholarship reduction and vacation of all Penn State wins after 1998. It was forced to rescind many of those penalties, however, as part of a settlement with the school.

“They basically overreacted and they imposed an enormous amount of sanctions that then they had to pull back from,” said a source who has worked with the NCAA as a legal consultant. “Now they’re just hesitant to do anything.”

But he meant well at the time.  Of course, there is the one exception that proves the rule.

Scandals that have involved competitive advantages or threats to amateurism, such as an FBI probe into college basketball programs paying athletes through shoe companies, have been met with more forceful responses.

“These allegations, if true, point to systematic failures that must be fixed and fixed now if we want college sports in America,” NCAA president Mark Emmert wrote of the FBI probe. “Simply put, people who engage in this kind of behavior have no place in college sports. They are an affront to all those who play by the rules.”

Yeah, I feel affronted, alright.  Thanks, Mark, for keeping your eye on the prize.

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Looking for “a dead hooker … in [Coach Beaty’s] closet.”

One of life’s small mysteries for me is why people continue to think Kansas AD Jeff Long is one of the leading lights of his profession.  Throwing money at Bobby Petrino isn’t some act of genius, and that seems to be the high water mark of his career.

Now he’s gotten his school in a pissing match with the football coach he just fired, and it’s not likely to end well.

When Kansas fired head football coach David Beaty in November, the school said it would fulfill the terms of his contract, which called for a $3 million buyout if Beaty was fired without cause.

On Tuesday afternoon, Beaty filed a lawsuit alleging KU has not paid any of that buyout, even after the former coach agreed to meet with NCAA investigators after Kansas informed Beaty of a “potential” violation the school identified during his time as head coach.

The suit also says Kansas athletic director Jeff Long and “at least one other senior Kansas Athletics official” openly discussed needing to “find something” to void Beaty’s buyout, such as, in the suit’s words, “a dead hooker … in [Coach Beaty’s] closet.”

The lawsuit, filed by Beaty’s representatives in federal district court in Kansas, alleges KU first contacted Beaty in December to formally deny previously agreed-upon monthly payments of $500,000 over six months. According to the suit, the school told Beaty the reason for paying his $3 million buyout was “a self-initiated NCAA investigation being conducted — not by the NCAA — but by Kansas Athletics’ corporate counsel looking into impropriety involving a former assistant coach.”

Well, that’s one way to try to weasel out of a $3 million check.

The timeline’s kind of fun to follow here.  First, Beaty is terminated on November 24.  Less than a week later, he received a memo from Long confirming that he was “terminated without cause effective November 24, 2018. All liquidated damages payments owed to you will be paid out consistent with Section 12 of your current amended Employment Agreement and Section 7 (D) of your current amended Professional Services Agreement.”

Then comes December 14, and Beaty receives a letter from Kansas’ general counsel, notifying him that the school was conducting an internal investigation about possible NCAA rules violations conducted by a member of his staff.  And while Kansas didn’t respond to numerous requests from Beaty about the specifics, that hasn’t stopped the school from notifying the conference and the NCAA about the allegation.

According to Beaty’s lawyers, Kansas has gone scorched earth.

The suit states that Kansas has been “more than willing to notify prospective employers that Coach Beaty is the subject of a NCAA investigation.”

That’s awfully nice of Kansas.  So is this official statement.

The University of Kansas is aware of a court filing submitted by attorneys of former Head Football Coach David Beaty. While the university typically does not comment on pending litigation, the nature of the current matter warrants further context.

The filing is full of false claims and factual misstatements, including that KU’s Director of Athletics made salacious comments about seeking reasons to withhold payment from Beaty. Simply, that did not happen.

Here are the facts. Beaty was informed he would not be retained by KU on November 4, 2018, but would be able to coach the remaining games. Immediately following the end of the season, Kansas Athletics staff conducted standard exit interviews of all football coaches and staff, and through that process we learned of possible NCAA violations allegedly committed by Beaty. KU contacted the NCAA and the Big 12 Conference and began an investigation into the matter. Beaty refused to cooperate with the KU review and, ultimately, the NCAA took the lead in the still-ongoing investigation.

Due to the nature of the allegations, which, if true, would be in violation of the terms of Beaty’s contract, the university has withheld payment of money owed to Beaty pending the outcome of the NCAA investigation. In a show of good faith, the university has placed the full amount owed in escrow.

While disappointed in the court filing, the university is committed to seeking the truth and upholding our high standards of ethical conduct.

You can stop chuckling now.  What’s impressive here, as you may have noticed, is that Beaty’s suit has caused the school to admit to possible NCAA violations, which should make for a lot of fun in discovery.  Not that this is going to get anywhere near the point of Jeff Long sitting for questions under oath.  Either the NCAA comes up with something relatively quickly, or Kansas settles, probably for an amount north of the buy out.  (Beaty’s lawyers aren’t gonna pay themselves, after all.)

Yeah, that Jeff Long is brilliant.

Of course, no story about an NCAA investigation would be complete without this:

An NCAA spokesperson, Stacey Osburn, said in a statement to SB Nation: “We cannot comment on current, pending or potential investigations.”

Should Kansas part ways with Jeff Long some day — hey, parting is what Kansas does — they could do a lot worse than hiring Stacey.  At least she knows when to keep her mouth shut.

Your Alston roundup

If you’ve got questions about the potential ramifications of Judge Wilken’s ruling against the NCAA in the Alston antitrust suit, SI.com’s Michael McCann, has some possible answers that might be of interest.

First, from his overall analysis, if you’re looking for a potential real world example of how competition might impact even the limited form of compensation Wilken allows for, here’s something that might be of particular interest to us:

The antitrust dynamic described above can be illustrated using one of this year’s best incoming players: Nolan Smith, a defensive end at IMG Academy in Bradenton, Fla. Over the last year, Smith was ranked as one of the top three recruits in the class of 2019 by every major outlet. Five elite college football programs—Alabama, Clemson, Georgia, Clemson and Tennessee—all aggressively recruited him. During the early signing period in December, Smith officially signed with Georgia, and he will play for the Bulldogs on a full scholarship this fall.

This description of Smith might not seem problematic. In fact, it seems ordinary for a recruit of Smith’s caliber. Yet it nonetheless contains an antitrust problem. Smith was denied the full benefits of the competition for his services. If Smith were a coach or a professor, the multiple schools competing for him could have offered him more money as an inducement to select their school. That doesn’t mean the school would pay Smith a salary. NCAA rules forbid “paying” college athletes as employees, but a similar “compensatory” outcome could be achieved through a scholarship offer that reflects the market competition for Smith. If Alabama offered $100,000 per year in a scholarship, Clemson could offer $150,000 and then Tennessee could top them both at $200,000 per year—and so on.

… While universities regard elite recruits as potential students, these students are assets to a university in ways that other students are not.

Second, here’s a description of how the ruling, should it remain in place, might impact schools.

Judge Wilken nonetheless agreed with the plaintiffs’ proposed remedy that individual conferences ought to be able to develop their own rules for capping scholarship values and accompanying benefits (so long as those rules comply with the limitations that benefits be “related to education”). The plaintiffs argued that individual conferences deciding the maximum value of an athletic scholarship would act more competitively than the NCAA deciding that question.

The related logic is that a conference that sees substantial economic value in sports, such as the Southeastern Conference, might reason that its top student-athletes should be eligible for scholarship values that far exceed the current NCAA cap. Those players play in stadiums that in some cases seat over 100,000 fans and appear on national television as part of lucrative broadcast contracts.

Smaller conferences might view the calculus in a different light and continue to employ the grant-in-aid cap. These leagues might reason that their members feature players whose college experience is not entirely dissimilar from that of their classmates, playing in smaller stadiums out of the national spotlight.

The potential ramifications there, at least to my mind, are pretty simple.  What if the P5, after a few years of this round of competition shaking out, finds it can live with the results, financially speaking?

For the NCAA, the empowerment of conferences will mean less control over amateurism from on high. Conferences will become more autonomous and more adaptive to their individual circumstances. Whether individual members of conferences agree with proposed grant-in-aid changes remains to be seen. It’s conceivable that Judge Wilken’s ruling could lead to conference realignment, particularly if a conference adopts scholarship rules that are opposed by some of its members. Conferences could also evolve or transform into different creatures when it comes to methods of investigations and enforcement of rules. College sports could take on unique forms depending on the conference in question.

I’ll say it again:  if you don’t think Nick Saban is already gaming this shit out, you don’t know Nick Saban.

Finally, in his third piece, McCann explores the impact of the ruling in related areas, about several of which some of you have asked questions.  Take, for example, what he says about Title IX.

Title IX is probably best known for requiring that college athletic programs provide roughly equal opportunities to male and female student-athletes. Here is where Judge Wilken’s ruling might invite Title IX challenges. If a school pays football or men’s basketball players scholarship amounts that exceed what is paid to scholarship athletes on women’s teams, players on those women’s teams could argue that the school has failed to comply with Title IX.

However, a school would not automatically violate Title IX by paying higher value scholarships to male athletes. The relevant analysis would be more nuanced and would focus on the extent of disparity between scholarship values at a particular institution. Along those lines, Title IX does not require identical treatment of male and female athletes, nor does it compel that an equal amount of dollars be spent on both. The key, instead, would be whether the school provides the female athletes substantially proportionate opportunities for scholarships. It is possible the Office for Civil Rights at the U.S. Department of Education, which enforces Title IX, will offer advisory opinions that might help schools interpret Judge Wilken’s ruling in a way that signals an acceptable disparity range for scholarships.

If you’re trying to understand what’s going on with these antitrust challenges to amateurism, these three articles are pretty good starting points.  Take a little time to wade through them and see if they help.

“related to education”

You probably ought to prepare yourself to hear that expression quite a bit in the future.

It’s at the heart of Friday’s ruling in the Alston case, which is something of a mixed bag, as the header on the AP’s summary — “NCAA can claim victory after losing federal antitrust case” — illustrates.

The victory is both real and spectacular if you’re all about the short term… you know, like the NCAA and the schools are.  Judge Wilken left the biggest prize in their hands.

At the same time, however, her 104-page ruling prevents athletes from receiving unlimited benefits, as the plaintiffs had hoped.

The NCAA “may continue … to limit compensation and benefits that are unrelated to education,” Wilken ruled.

Their win is far from complete, though.  First, Wilken again found that the NCAA’s current limits on athlete compensation “unreasonably restrain trade.”  She went on to find that there is one form of compensation no longer within the NCAA’s jurisdiction to regulate.

A federal judge ruled Friday night that the NCAA cannot “limit compensation or benefits related to education” for athletes playing Division I men’s or women’s basketball or Bowl Subdivision football.

Among the items U.S. District Judge Claudia Wilken said these athletes may receive are scholarships to complete undergraduate or graduate degrees at any school. The judge also appeared to open the possibility of athletes being able to receive cash or cash-equivalent awards based on academics or graduation, albeit under some constraints.

The response to that can range from the fairly benign — I seriously doubt that, regardless of one’s feelings about amateurism, anybody out there is going to object to schools offering scholarships for graduate work, or for studies for a former student-athlete’s lifetime — to the whatever Nick Saban can cook up after assigning a couple of analysts to the usual routine envelope-pushing (“Tell Sankey that these kids can’t get to campus and their studies without that new Mercedes we’re furnishing them”).  And that’s even before you get to the argument that “related to education” isn’t just about going to class.

If you’re the NCAA, however, that’s not the truly alarming part.  This is.

Suffice to say, the NCAA isn't going to like this. Per Judge Wilken, the NCAA can't rely on the argument that consumers will only watch amateur sports because they don't even know what the word "amateur" means. Ouch. pic.twitter.com/jfTmlfh6cp

— Sam C. Ehrlich (@samcehrlich) March 9, 2019

And this.

Judge Wilken further destroying the "paying players will decrease consumer demand" argument raised by the NCAA. pic.twitter.com/iGSrtYLvMm

— Sam C. Ehrlich (@samcehrlich) March 9, 2019

And this.

Judge Wilken also doesn't buy the argument that paying student-athletes would create a "wedge" between them and other students. In fact, she argues that compensation limits CREATE a wedge. pic.twitter.com/6Yrv8SyCEK

— Sam C. Ehrlich (@samcehrlich) March 9, 2019

Judge Wilken, then, as findings of fact, shredded every argument the NCAA’s lawyers made to justify the current amateurism protocols.  So why didn’t she proceed to give the Alston plaintiffs everything they asked for?  Well, that takes us back to the header, “related to education”.  That’s the justification the Ninth Circuit used in O’Bannon to limit the antitrust relief granted in that case, and Wilken feels bound by that precedent.

Make no mistake, though, that’s a problem for the NCAA.  Call an organization an illegal cartel often enough (and this ruling makes it three straight times, including once by the very same Ninth) and pretty soon everyone sees it in that light.  The schools have to be worried that some court out there finds they’re running a cartel while not being concerned about the “related to education” standard the Ninth Circuit crafted (yes, it’s unique to O’Bannon).

What should even scare the NCAA even more, however, are the ramifications in the political realm.  We’ve already seen a member of the House Freedom Caucus introduce legislation to allow student-athletes to monetize their names, likenesses and images this past week.  How much easier does it get for legislators to jump into a game where universities are labeled lawbreakers by courts?

“There is a great disparity between the extraodinary revenue” that the NCAA and the schools get from Division I basketball and FBS football “and the modest benefits” athletes “receive in exchange for their participation in these sports relative to the value of their athletic services and the contributions they make,” Wilken wrote. Athletes “contribute their elite talent and time, they limit their educational options, and they risk their long-term health to create enormous financial value” for the NCAA and the schools.

“Allowing each conference and its member schools to provide additional education-related benefits without NCAA caps and prohibitions, as well as academic awards … may provide some of the compensation student-athletes would have received absent” the NCAA’s compensation limits.

The Congressional hearing on student-athlete compensation almost writes itself from there.  You would think that’s a sobering warning for an organization animated by even a shred of proactive sensibilities.  But this is the NCAA we’re talking about, so don’t expect any miracles on that front.  For one thing,

… because Wilken determined that her decision constituted a judgment in favor of the plaintiffs, she ruled that the NCAA will have to pay the plaintiffs’ legal costs. This is an amount likely to be in the tens of millions of dollars.

Donald Remy sounds like a man who’s got the litigation shampoo ready for another round of lather, rinse and repeat.

“Although the court rejected the plaintiffs’ desire for a free market system, we will explore our next steps as appropriate,” a statement from the NCAA’s chief legal officer, Donald Remy, said in part. “We believe the ruling is inconsistent with the decision by the 9th Circuit Court of Appeals in O’Bannon. That decision held that the rules governing college athletics would be better developed outside the courtroom, including rules around the education-related support that schools provide.”

In other words, the NCAA’s gonna NCAA, y’all.  At least it can still afford to.

Nothing to worry about

If the NCAA really believes the bullshit it cranks out about amateurism, should it lose the Alston case, would anything really change?

Stating the necessary, but obvious, in Harvard Journal of Sports and Entertainment Law (https://t.co/TyHH7OdNg1), @TedTatos explains the hole in NCAA's logic that if allowed to pay athletes more they would to pay more despite their claim that higher pay would lower their revenues pic.twitter.com/BdEo6IscJK

— Andy Schwarz (@andyhre) March 3, 2019

Of course, the NCAA doesn’t really believe its own bullshit.

If paying athletes is as disastrous for fan interest as the NCAA claims, why would anyone do it?

And in the Alston case, a half a dozen NCAA witnesses all claimed they'd never do it, but then in closing arguments, their lawyers said "yeah, well but SOMEONE will."

Who? Why?

— Andy Schwarz (@andyhre) March 3, 2019

The answer to the why question is right in those answers. Because the NCAA thinks that some of its members disagree with the idea that amateurism is demand enhancing. They think schools might adopt higher pay because their fans will like it more.

— Andy Schwarz (@andyhre) March 3, 2019

In other words, every time one of you amateurism romantics argues some version of an affordability problem with regard to free market compensation, you’re undermining the NCAA’s antitrust defense.  Because if paying players really is a disastrous move, no school would be crazy enough to risk its business over that.

And if that is true, that the NCAA is preventing schools/conferences from taking steps to please their fans MORE, then that is not a procompetitive justification but an admission of anticompetitive intent.

— Andy Schwarz (@andyhre) March 3, 2019

I keep saying it, but the most defensible position on the status quo is to simply say “I don’t like players being paid” and stop.  Once you try to offer some sort of economic justification, the argument goes off the wheels.

Body blows

You would think this would be an obvious slam dunk to correct.

Whenever an Oregon football player struggled, vomited or fainted during a strenuous January 2017 workout, two lawsuits allege, their teammates would be punished with additional repetitions. Three Ducks players were hospitalized following the session and diagnosed with rhabdomyolysis, an overexertion-induced syndrome that damages muscle fibers and releases their contents into the bloodstream.

In charge of the training? Strength and conditioning coach Irele Oderinde, whose sole credential was a 21-hour strength training course offered by the U.S. Track and Field and Cross Country Coaches Association, which he reportedly attained while at South Florida in 2016. Oderinde received a bachelor’s degree in recreation administration from Western Kentucky and master’s degree in sport management from Kentucky, though neither of those would certify him to be a strength and conditioning coach…

Under NCAA Bylaw 11, strength and conditioning coaches are required only to take a “nationally accredited strength and conditioning certification program,” a broad spectrum that includes Oderinde’s 21-hour course. And there is no language that prevents strength and conditioning coaches from reporting directly to head coaches.

Brian Hainline, chief medical officer of the NCAA’s Sports Science Institute, told Sporting News the NCAA was looking at bolstering accreditation standards for strength and conditioning coaches “in the next year or two,” though no formal measures have yet been introduced or reviewed.

But you, my friend, aren’t the NCAA.

In 2015, the National Strength and Conditioning Association (NSCA) and Collegiate Strength and Conditioning Coaches Association (CSCCa) — considered industry leaders in strength and conditioning accreditation — asked the NCAA for “higher professional guidelines” for strength and conditioning coaches to become credentialed, according to CBS. Since then, the NSCA and CSCCa have grown frustrated at the lack of NCAA action, sending a follow-up letter that reiterated their policy recommendations in March 2017.

NSCA board president Dr. Travis Triplett told SN that the politics of the NCAA — namely, how conferences and individual athletic programs oppose what they perceive as meddling — has made progress toward improved certification standards slow. Her view is reminiscent of medical experts’ frustration with the NCAA’s approach to preventing non-traumatic injury and death.

“I don’t know if they received enough pressure to back off and they just feel like they can’t really enforce it, I just don’t really know what their thinking is,” Triplett said. “We feel like … we’ve got that credibility that (the NCAA) should say, ‘Yes, you need one of these two certifications (from either the NSCA or the CSCCa). You can have the other ones as support ones.’”

Whatever could be the problem?  It’s the NCAA, so that means one thing.

… William Brooks — who has litigated issues of sports compliance and NCAA rules infractions for Alabama-based law firm Lightfoot, Franklin & White — believes it’s not yet determined whether the NCAA has a legal duty to protect student-athletes. That said, he believes if the NCAA made rules on issues such as strength and conditioning coach certification, it could essentially give the organization a caretaking role in the eyes of courts.

Brooks said he expects the Oregon case — like similar cases before it — will be settled before trial. Still, he is curious how it will shape a continuously evolving dialogue about the NCAA’s role in protecting its student-athletes.

“If they were to enact specific rules or requirements, those likely would be subject to an attack in a particular case if they weren’t good enough and the NCAA had undertaken a duty of protecting student-athletes,” Brooks said. “It wouldn’t be hard to imagine an instance where some kind of injury occurred and a player were to argue that the NCAA’s rules, if they had enacted some, were insufficient and the NCAA was negligent.”

Gee, if I didn’t know any better, I’d say there’s something that trumps doing it for the kids in the NCAA’s playbook.

By the way, Oderinde is the head strength and conditioning coach at Florida State now.

A school’s gonna do what a school’s gonna do.

Purely for shits and giggles I gotta ask those of you who think it’s okay for schools to collude to fix players’ compensation — is it also okay for them to do the same with professors?

(h/t)