The Dan Le Batard Show with Stugotz - PTFO - A Conversation with the NCAA's Biggest Nightmare

Episode Date: March 19, 2024

The death blow to the NCAA won't be dealt by college athletes unionizing, as historic as that movement is. It will come from a seemingly anonymous man named Jeffrey Kessler: an attorney who also happens to be the greatest sports lawyer of all time. Kessler has fought for everyone from Tom Brady to the U.S. women's national soccer team — and now, after winning in front of the Supreme Court, he's busy changing the very nature of college sports. Pablo invites Kessler into the PTFO studio and pressure-tests whether college athletes could finally wrest what's allegedly owed to them: billions, plural, in past damages from the NCAA. Learn more about your ad choices. Visit megaphone.fm/adchoices

Welcome to Pablo Torre Finds Out. I am Pablo Torre, and today we're going to find out what this sound is. Jeff is gangsta. Right after this ad. You're listening to Giraffe King's Network. This episode is sponsored by BetterHelp, because a lot of us spend our time wishing we had more time.

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All right, we have a big show today. Cortez, it's March of Madness Oh, I thought we were going to talk about BAM's three pointer against the Pistons. No, we are not talking about that. It is March Madness though. It is a different sort of madness than the one that you usually bring here without permission. And today's show is going to be about one of the most powerful people in sports. One of the guys who is changing college sports

itself as we know it. Oh wow. I wanted to begin today by talking about the power of argument of debate in sports. And I'm going to start with a little bit of who is changing college sports itself as we know it. Oh, wow. I wanted to begin today by talking about the power of argument, of debate in sports specifically. Yeah, you did tell me that. And in honor of today's show and what we've got going on, I have assembled a bracket for you.

The top four, the final four, our final four, best sports arguments of all time. Okay, when you said our, I wanna say it is not our, I have no say over your final four. Let me show you a math equation. The committee is just you. Mine, am I a part of the show? Yes, so is it ours?

Kind of. That is not math. Math. Except for the fact that there are four of these. Final four, that's right. Do you wanna hear the first one? I guess we should start with the worst. Only thing I have to say is this,

we should have a separate show on talking to Will about the existence of entitlements because clearly he doesn't understand some people have them You know what you could do? and some people don't. You could do it? And that is not a conversation you'd want to get into it with me about.

You know what, Stephen A, you might do this. Maybe you could impanel a group of four people to debate me all at once and see if you can win. Or you could try to take me on one-on-one. Well first of all I don't have to do either because I'm here behind enough of enough agents one on one. Hey Stephen A, I'm here at your invitation as always. Please you just learned in sports. Step back. Alright guys. Well appreciate you. Always get the debate going my man.

Appreciate you bye have a nice day. So that is admittedly like all time. That's what it is like. Appreciate you, bye, have a nice day. So that is it admittedly, like all time. That's what I think of when you say sports argument. It's clearly not the best, but it's an embodiment of the way that debate and sports argument has just saturated everything about our industry. And now let me show you how else it sounds in my head

when you say best sports argument. Let's go to our number three seat of the final four, please. Oh my God. Is that you think so? That's what you need to do. Oh, stop with your Michael K. I'm on the air. I worked at the fan before Michael K.

I do Ranger games without Michael K. 16 years doing pre and post for the Jets. Guess what? No Michael K. I got a podcast that's in the top 50 in every country on the planet. No Michael K. I've got two kids. I've got a wife.

17 years I'll be married during September. Guess what? No Michael K. I've got hair that people would die to have. Michael K. Nothing. I'm a fabulous driver. Michael K's got nothing to do with it.

I love that clip. I mean, it warms my heart. Of course you do. I'm getting a sense of how it is that you are a Supreme Court justice. When I bring you- What matters to me? When I bring you the topic of, we're here to talk about the power of argument in sports.

And you give me Don LaGreca yelling at an anonymous caller at length. Uh-huh. And that's only two of the final four. So now let's get to the number two seat of our final four, please. Seriously, shut up! I'm a loyal friend. I'd rather sit here than sit there and be a low, fucking, brown rat out of the fucking sewer. Brown rat? Brown! Low, brown rat. Low, brown. Stop trying to bring raises to the shit. No, she's low, brown. You're such a sc sewer. Brown rat? Brown! Low brow rat! Low brow. Stop trying to bring racist shit. No, she's low brow. You're such a scum.

You're just scum. I sit here because I'm integral. You are seriously scum. You sit there. How is that even? No, that's sports. That's not. That's what you're complaining about?

That's sports. That is definitionally not what I asked you to bring in. Technically, there is a real housewife from season two named Jen Shaw who's sitting in prison right now for fraud, defrauding the elderly. She's- And that was her. No, she's not in that clip. She wasn't the low brow rat. No, well that was between Angie and Monica Garcia. But this woman, Jen Shaw, and sitting in prison for defrauding the elderly again, is married to the cornerbacks coach at the University of Iowa.

So I dare you to dispute. How is that not what is your number one seed if that is Go on I hate you Was the same clip at the same exact clip as before no not the same clip is from the same show from the reunion You're horrible people, Michael. You are. You are. You are. You are. You are. You are. You are. You are. You are.

You are. You are. You are. You are. You are. You are. You are. You are.

You are. You are. You are. You are. You are. You are. You are. You are.

You are. You are. You are. You are. You are. You are. You are. You are. You are. It is completely oversaturated sports media, media in general to the point where arguing just feels unremarkable to me at this point. And I'm somebody who grew up, you know, I did speech and debate in high school. I was the captain of the varsity Lincoln Douglas

debate team, Cortez. The fact you're such a gas bag, like it makes sense now because you've been practicing gas bagging since like debate, like now that makes sense. I get it now. I didn't practice. I led practices as the captain, as the president. Whatever man.

The title was president. Okay, great. The point is that March Madness right now underway is the best thing the NCAA does. And we've been arguing against the NCAA for years and years in this business. I've been doing it. Everybody we know and like has been doing it.

And nothing, nothing we've said has been the thing that's gotten the NCAA to change. Well, that is until the college athletes started unionizing. Right. So, okay. So the unionization of college athletes, like at Dartmouth, the men's basketball team there, historic, but that's not actually what's changing things. Okay.

In fact, the reason the NCAA is changing and the reason that I did this whole wind up to today's show is because the person who's changing the NCAA is about to sit in the chair that you are sitting in right now. This is a man who has used the power of argument, of debate to actually change college sports. And look, the guy is so good at arguing

in a way that Don LaGreca, Stephen A, Will Kane, Nick Wright. Monica Garcia. No, not like Monica Garcia. Number one seed. This man is better than all of them combined in ways that are unseen to us actually, because he's not doing it on television.

Okay. He's doing this in courtrooms as an attorney behind closed doors. Okay. And this is the man who is changing everything. this in courtrooms as an attorney behind closed doors. Okay. And this is the man who is changing everything. Jeffrey Kessler, I don't know if people are typically as excited as I am when you sit across from them. Well, they usually have a reaction.

Sometimes it's excited, sometimes it's something else, but usually it gets a reaction. I've spent the last couple of days, I should disclose to you here on the record, talking to people who have worked with you and also been cross-examined by you. Okay. Dominique Foxworth is a good friend of mine, former head of the NFL PA, a president as a player of the union. And he says, quote, and this is a rare bit of emotion, that he loves and misses you, Jeffrey.

Well, I miss him too. He was a terrific president of the Players Association. We don't need to butter up, Dominique, because he goes big enough already. Well, that's, there's some truth to that. Yes. Another person that I asked about you, who was cross-examined by you, they said for a week,

which is an extreme sounding timeline, they said this, quote, Jeffrey Kessler is the Dennis Rodman of attorneys. When he's on your team, you love him. When he's not on your team, you loathe him. End quote. Okay. Who is that one? His name is David Sampson, Jeffrey.

Do you remember David Sampson by any chance? I do remember David Sampson by any chance? Um, I do remember David Sampson. He has been involved in, uh, if I'm thinking of the right guy, ownership of the Mullins. That's right. Right. And I did cross-examine him a bit. So yes. Brutal, he said.

Jeffrey Kessler is brutal. I accept that. And I want to read this quote off my computer for you, because this is what David Stern, former commissioner, the late David Stern said about you. Quote, your conduct, Jeffrey, was routinely despicable, and he called you, quote, the single most divisive force in our negotiations. Yeah, so I was one of David's favorite foils.

Apparently. David had a brilliant ability to try to find some way to divide the players. And he didn't want to attack the players directly. So he would call me out repeatedly. But I want to establish why it is that I'm so excited to have you in front of me, not just because I get to assassinate your character

by proxy, but because I believe that you're the most important person in sports that most sports fans could not pick out of a lineup. That's probably true for in terms of not picking me out. I don't know about the statement about my importance. I think I've had an impact on a few things. Yeah, just a few things that I should mention here, like every single collective bargaining agreement.

All of them. Every legal fight, actually, that both the NBA and the NFL Players' Associations have had against their respective leagues for more than 35 years now. Jeffrey has handled all of them. He's the guy. That is why David Stern, aforementioned, hated him. For instance, by the way, have you ever wondered how the salary cap and also free agency as a concept came to basketball and football in the first place? Probably not, but the answer

is a bunch of historic settlements won by Jeffrey Kessler, the biggest sports lawyer of all time without really any debate, and that all happened three decades ago. In fact, if you just think of, I don't know, any legal case you've ever heard of where an athlete sues a league like Bounty Gate or Michael Vick or Ray Rice, the answers are Jeffrey, Jeffrey and Jeffrey. Yeah, respectively. He represented those guys. He cross-examined Roger Goodell, the commissioner of the NFL for two hours one time.

Jeffrey is the same guy who is pushing through a mob of cameras that you'll see on a New York City sidewalk when like Tom Brady hires him for Deflategate. The U.S. women's soccer teams fight for equal pay. For equal pay, gender equity, you're representing them. They went to the World Cup while after we filed that lawsuit and had the weight of the world on them that they were fighting for equal pay and they show up in the finals in Paris for this game and the entire stadium began to chant, Equal Pay, Equal Pay, Equal Pay. Equal Pay, Equal Pay.

And then of course they won. That inspiration was truly a moving moment as I sat by myself in New York watching it on the television. When did it become clear to you that you would be on this side of things? As a young lawyer, I got exposed to the NBA plays association and the business grew incredibly throughout my career. When I started, there was no such thing as a sports lawyer.

There was no such thing as a really a major sports business. The money was tiny. Right, right, right. sports business, the money was tiny. Right. Right. Right. The average NBA player, when I started working was making like $25,000 a year in terms of that, so it was good timing by you is what you're saying.

Right. That's exactly right. It was taking advantage of opportunities that as his business grew, um, I got called more, more to do cases in the sports world, always on the player side or on the side of those fighting what I'll call the establishment of sports. When I was asking a couple of people about like, what is Jeffrey like as a debater? Would he be good on first take on PTI? I didn't get the rave reviews on your potential

as a sports gas bag as I might've thought. Well, I like to think that I'm not such a gas bag. So maybe that's a compliment in terms of that. I'm very good at advocating the position of my clients. But also I don't- You don't have Jordan in LeBron takes, Jeffrey? So I don't pretend to be an expert on sports. I'm a sports fan, like a lot of sports fan, but I do think I'm an expert on the legal issues that confront sports. So it depends what the debate is about.

I bring this up because the debate, the argument that I'm most fascinated by, the real reason at the core of this that I brought you in is because of what you're doing with the NCAA. And so I am talking to a person who has argued now before the Supreme Court. The men's and women's basketball tournaments are among the biggest moneymakers for the NCAA. But a case is being argued today in front of the Supreme Court and it could restructure the finances behind those college athletic programs. The case NCAA versus Alston. I imagine for you the Supreme Court

arguing in front of it is a dream, except there was this wrinkle that I am entertained by and also saddened by almost. This was during COVID and the Supreme Court, like many courts, maybe all courts were not doing in-person oral arguments at the time and so they did it just by audio. Good morning Mr. Chief Justice and may it please the court. I tried my best to recreate an atmosphere in my office, in my conference room. I stood up at a podium, you know, I dressed the part. What are you wearing? Take me inside your room.

You know, I wore my best suit, my tie, and I was ready to go. The naked, horizontal, monopsony restraints that the competing NCA schools have adopted in these labor markets would be per se unlawful in any other context. I want to explain the case that you're bringing, because this case, and correct me if I'm wrong in my characterization of this, but this case kind of changes everything for the future of the NCAA. It is just the latest iteration of the repeatedly debunked claim that competition will destroy consumer demand for college sports and that the NCAA should have a judicially created antitrust exemption because of an imaginary revered tradition that they argue for.

For those who may be sleeping in class when Alston got taught, Sean Alston is a former running back at West Virginia. And so where does he fit into the lineage here of what he was looking for that you came to represent him? These cases against the NCAA are brought as class actions. In a class action, you get a few representative plaintiffs to stand up for the whole class. So plaintiffs to stand up for the whole class. So, Sean Alston was one of the class representatives. So what Alston was originally seeking was to strike down all the compensation restraints on the NCAA athletes

for FBS football, men's and women's division basketball. Why do we pick those sports? Because that's where the money is. So it's follow the money. That's where the greatest injustice was because the athletes were generating and are generating, you know, billions of dollars each year and we're not being able to be compensated for it. So this was not the question of whether they can be paid. This was the next best thing to being there. This was a question about whether the NCAA rightly wanted to stop universities

from giving what were called education-related benefits to athletes. This would be something like computers, lab equipment, musical instruments, allowing them to take internships, that sort of thing. The way we found out is that you actually could find out before sometimes when the decision is likely to be issued. So we knew it was likely to be issued at 10 a.m. to be issued at 10 a.m. on a particular date in June. So we were waiting breathlessly to see what the decision would be. You nervous? Sure. You know, it's a huge moment. Huge moment for that tie.

I was of a strong belief that we were going to win after the oral arguments based on the questioning of the justices, but you can never be completely sure. I had no prediction that we were going to win nine nothing. The Supreme Court unanimously ruling against the NCAA this morning. The court saying that limits on certain education related benefits like laptops, for instance, for division one football and basketball players are Unforcible five would have been fine with five out of nine you win, but we got all nine and I

Remember, that's what immediately Struck me is not just that we won but the strength of the opinion the fact that it was annoying nothing and What the implications this was going to be for other cases going forward? strength of the opinion, the fact that it was knowing nothing, and what the implications this was going to be for other cases going forward. One of the things that was eye-opening to me as somebody who tends to be just generally cynical about everything I guess when it comes to politics and jurisprudence is that this court, let's just say the obvious, was famed as a conservative court. And so there was this theory that when you have guys

like Brett Kavanaugh, Supreme Court Justice Brett Kavanaugh ruling on this, well, maybe there might be a fight here about like what the NCAA had the right to envision itself as. There was a fight, but it was like a fight like Muhammad Ali fighting me, right? It was Kavanaugh was the justice who was most critical. The schools are conspiring with competitors, agreeing with competitors, I'll say that, to pay no salaries to the workers who are making the schools billions of dollars on

the theory that consumers want the schools to pay their workers nothing and that just seems entirely circular and even somewhat disturbing. He wrote what's called a concurring opinion so that's where the justice agrees with everyone else with the majority but wants to say something more. And the more he had to say was that as far as he was concerned, nothing the NCAA was doing to regulate the economics of athletes could be justified. That it was all just a cartel, a little bit, we call it a labor market cartel. Yeah, he wrote this, quote,

"'Nowhere else in America can businesses get away with agreeing not to pay their workers a fair market rate on the theory that their product is defined by not paying their workers a fair market rate. The NCAA is not above the law.'" And what this does to me, it just indicates that actually there are some issues in America that might actually be

bipartisan. Because that's a remarkable thing to reveal to America. Actually, we all kind of agree on this one. Yeah, look, it's refreshing to find that area. Unexpected. You know, where there is bipartisan, conservative, liberal consensus that this is wrong. Anybody who looked at it today would say the strength and conditioning coaches at Alabama, there are two, each make at least $700,000 a year, which is more, by the way, than the president of Alabama makes. What is not exploitive about paying the money to them and not

paying it to in any way to these athletes who create the revenue, most of whom will not have NFL careers out of Alabama, even at the great Alabama, you know, 85% of them will never spend a day in the NFL. And the majority of whom are people who come from communities of need, from communities of color. It says, how is this not exploiting them? Yes.

They couldn't defend what was called the restrictions on names, images, and likenesses, which is the ability of athletes to get monies to do endorsements or to sign autographs or to do social media. So the NCA recognized they couldn't keep that going. They repealed or suspended most of those rules. And I'm getting a sense as a through line in just your basic, I guess, worldview legal strategy here.

Find where the money is and ask the question about why it is that these people over here cannot access what their actual market value might be. That's exactly right. And that's really been the critical issue for athletes for generations. You go back in the history of sports, they used to claim ownership of all professional athletes, going back to the old days of the reserve clause in baseball that, you know, athletes couldn't have the same economic rights that anybody else would have and there's no free agency, you know, it's hard because you talk to people your age.

That's right. You don't know a world in which there was not free agency in sports and the owners used to say, when I started practicing, that if there was not free agency in sports. And the owners used to say, when I started practicing, that if there was free agency, it was going to destroy sports. It was going to destroy fan interest. It was going to bring down the game.

And of course, that all proved to be the opposite of being true. And it's the same thing with the amateurism justification of the NCAA. Even the NCAA executives and the conference commissioners, no one even believes it anymore. Everyone now understands this is just about finding a better just system. I mean, if you interview the president of the NCA today,

Right, Charlie Baker. You know, he is saying, we know we've got to change. So I said, the question is, how quickly? And what is the change gonna be? Is it gonna be the right change, the fair change. So sticking with the strategy of finding all of this money, because there seem to be two approaches that we're monitoring in the news. One is the national Labor Relations Board, recognizing these athletes as employees, meaning they can unionize. And of course,

you know very well what it means to bargain collectively. But the other strategy, which is your strategy with the NCAA, is different. It's about antitrust and I want you to explain why it is that antitrust has this potential to actually inflict even more pressure than the first approach that I just described. There are several advantages of antitrust laws, as Justice Kavanaugh wrote, is to strike down agreements between competitors not to fix prices or to fix the prices of wages or labor or products. What the NCA does is in this sweet spot of what the antitrust laws hold to be a lawful. The second thing about the antitrust laws is that it has very, very broad relief.

You can get injunctions, totally ending the restrictions, and you can get triple damages for the injury in the past. That part seems key, Jeffrey. When you're talking about years of restricting compensation in a business that's earning $16 billion a year, those damages get pretty high pretty quickly. If the NCA takes this to the mat,

then they may have very, very large checks that the conferences are going to have to write. That's a lot of pressure to try to find a settlement, to try to find some way to resolve this. If there's ever going to be a settlement, there are two elements to it. One, there would have to be fair compensation for the damages, but there also for the future would have to be a fair system agreed to. So antitrust has a lot to offer. That's how

we got free agency in football. We couldn't get it through bargaining alone. There was the Reggie White class action settlement and the free McNeil jury verdict that led to free agency in the NFL so that's really what was able to achieve it when we won the free McNeil verdict and we were all sitting around free McNeil's lawyer was there we were we were all sitting around playing poker we get the call that the jury verdict is in and everybody jumps up from this poker table and goes running through the streets of Minneapolis to get this verdict.

And by the way, the pot was left there on the table. And for years, Gene Upshaw claimed that he had the winning hand and that was his pot. And that was hotly disputed by a number of the other players at that table. Just the eruption in the courtroom hand and that was his pot and that was hotly disputed by a number of the other players at that table. Just the eruption in the courtroom and around the world and with those players and one of our players was a guy whose coach used to tell him that if he didn't do exactly what was said by the team at all times

he was gonna be cut and he was gonna go back to packing groceries at Vaughn's Grocery. These players had been so mistreated. That was an exhilarating moment. In other words, antitrust is a more laser focused path towards the money. I imagine the NCAA, they're feeling the walls close in. And I want to just be very, I guess, clear about how you, Jeffrey, and these cases that you're bringing now off of Alston, are the walls. And so I want to just name a couple of these cases that

you're pursuing now, because this is again, the antitrust multi-pronged front you're pursuing. And the one that has caught my eye the most is House versus the NCAA. And in this case, House is a swimmer, Grant House, Arizona State. And the reason I'm so fascinated by this one is that it is upsetting an apple cart that I've been waiting to see turned over, which is what about the TV money? So we're talking, you know, it's March of Madison, and here is this multi-bazillion dollar enterprise

that has never those monies gone to athletes. And so what is that case about? What do you see inside of that? So the case is about the restrictions on name, images, and likenesses. But part of the case is about the fact that the athletes names, images, and likenesses get taken and given to the broadcasters with zero compensation. And that's still prohibited. Even when they loosen some of the other rules, They don't allow any payment there.

All the broadcasters insist that the conferences guarantee that they have those rights and they pay nothing for them. And so we are seeking in that case both an elimination of that restriction, so going forward the athletes can get paid for that. And in the past, we're seeking damages for that. And that, as you can imagine, is a large amount of damages because there have been billions of dollars each year in those agreements. Oh, it's where the money actually is in sports. We have a very conservative damage study. We had an expert come in, and that expert

has concluded that the value of just the names, images, and likenesses alone has gotta be worth at least 10% of the value of the broadcast. And so that's what we based our damages model on. We're looking at billions of dollars. Right, all the TV shows that really these playoffs are, that these tournaments are. We're looking at billions of dollars. Right, all the TV shows that really these play-offs are, that these tournaments are, you're looking for the pay there.

That one I believe January it's slated for. And then there's another case, and by the way, I just imagine like a chill running down the spines of anybody who's trying to do the math here, who cares about the NCAA because the NCAA is also facing a lawsuit from a class led by Dwayne Carter, who is a Duke defensive tackle here, about those pay for play payments. Carter will seek basically to put the NCAA out of the business of regulating compensation.

What we're going after is the cartel part of the NCAA. And the cartel part is telling the schools what you could do or not do to compensate the athletes. No one's seeking to force schools to do things. What we're seeking to do is remove the shackles on the schools and the conferences, and then the free market will determine what's gonna be the fair outcome in terms of this. Right determine what's going to be the fair outcome. Right.

We want them to have the freedom to compete however they see fit. That's correct. Now, the NCAA, what they're thinking now, and of course, Charlie Baker comes in. He replaces Mark Embert, who is, let's just say it bluntly, less popular than Charlie Baker, certainly in Washington. Charlie Baker has a political background.

Probably in most places. In most rooms. Yes. But Charlie Baker, certainly in Washington, Charlie Baker has a political background. Probably in most places. In most rooms. Yes. In most cities. But Charlie Baker, it seems like the, the Hail Mary here, right? Because you've now outlined this

multi-pronged attack using antitrust to come for the money, money that when you just, let's get the accounting here straight, the billions upon billions of dollars is what's at stake here. Yes. And if you're the NCAA, you're thinking to yourself, okay, I got two options.

One is I go to court against Jeffrey Kessler and I fight on this entire premise that actually, everybody who is Brett Kavanaugh now in this rainbow coalition of people who are saying like, things got to change, we're going to fight that. Or Charlie Baker goes to Washington, DC and he convinces Washington, DC to give the NCAA an got a change, we're going to fight that. Or Charlie Baker goes to Washington DC and he convinces Washington DC to give the NCAA an

antitrust exemption. And you're already moving your head in a way that makes me think that you aren't terribly afraid of the forecast for an antitrust exemption. No, no, no, because look, we're very, you know, much in touch with different members of Congress. And I don't see them able to get a consensus for Congress to pass legislation

that's going to exploit the athletes. There's no political upside for either side. Terribly popular these days. To do that. They keep trying to repackage their bills in different ways to try to make it feel like it's more pro athletes. They try to dress this pig up with lipstick on the pig,

but at the end of the day, I do not believe, certainly this Congress, I do not see passing any legislation that is going to bail them out that way. And hopefully the answer is that there'll be no Congress that would ever do that. And so the pig can get roasted on the spit or they can come and settle.

And the way that you described the bar for a settlement, which is to say, not just compensation, which is fair. Um, but also an agreement on this vision for a stable future system, as you have been alluding to throughout our conversation, um, that seems like a high bar and it just seems to me that that's their best option is to come to the table and say, I got something that you might actually be interested in.

It is very possible to use this device to come up with a fair system, you know, for athletes to be compensated in and for the game to grow and to be successful. But you know, it's only going to happen with a fair system. We would never settle for an unfair system if there's a will among the NCA membership to do that. So whether it all happened, I don't have any idea. It's like clapping.

It takes two hands to make a settlement. The court would have to approve it. So maybe we'll get there. Maybe we won't. If we don't, we're ready to win before a jury. Now, as for the jury, that is my audience, the audience of sports fans. I want to point out that whether or not they agree, and I believe most of them do at this point on just the principle of this entire matter, which you've articulated. Um, there is just this question of like, what is this thing going to be?

This thing, meaning sports, this thing, meaning the game that they love. The NCAA is saying, look, we got all of these non-revenue sports. We got swimmers, we got lacrosse players, we got gymnasts, we got field hockey, all of that stuff. What this is doing is killing off college sports as you know it. And to that you say what? It's nonsense. So how do I know it's nonsense?

How do all the sports fans out there know that it's nonsense? Well, let's start with something called Division III. Division III in college sports, as you know, has a wide variety of sports teams that it provides and finances. It has no revenue contribution from football or basketball because their football and basketball teams don't make any money either. So how does this all survive? It survives the same way that the English department survives, or the drama club, or the newspaper, or any other part of a university that's offered who doesn't have a football team or basketball team to provide it with revenues.

It survives because it is something attractive to students that the people running the school believes contributes to a positive educational experience and gets their bodies in the door and it will survive without even one dollar of subsidy from those revenue sports. So that's where you start out. The second thing is they always say that any time that you could give more money to the athletes in the revenue sports That is going to come from the non revenue sports. It's never happened so maybe the Athletic director won't make four million dollars

I'll have to get by on a million and a half dollars or maybe the you know the Conference Commissioner will have to make a little bit less or maybe that gold plated Alumni room that they make in the suites will only be made of silver instead of solid gold The money is there So little of that is spent on the non revenue sports now Okay, the total amount spent on the law non revenue sports now is like a tiny fraction of the Increase that will just be provided by the new college football players, playoffs, starting with the 12-team playoff, right? So it's a ridiculous

scare tactic argument that will not change a single thing about college sports. But here is where I do believe that there is change afoot, right? Is in this way of again, principle aside and ethical considerations and jurisprudence aside, just the idea that we're watching the landscape, the map of college sports be redrawn, right? And so what I'm monitoring now, as many people are, are okay, the SEC and the Big Ten are clearly in a group unto themselves inside of this power five, right?

It's really a power two. Will they break away to start their own college football playoff? You know, so- A very different TV show, Jeffrey, than the one people have been used to watching and they love. Everything that happens with conference realignments and the possible break off of a power to has

nothing to do with this issue, right? That may or may not happen based on the vast revenues and the power politics of those conferences. So I can't be a predictor of that. I don't think it's going to happen. What I think is gonna happen is that you may see a new super level of division one. Yes. For those schools and conferences who choose to provide the greatest amount of compensation

and benefits to their athletes because they could afford it, which is that these are different economic creatures and that they should be in their own college sports division, which is basically what you have with the college football playoffs already anyway. That's what's evolved no matter what, even if whether or not they formalize all this. Right. But I guess as an entertainment product, and these are of course TV shows, entertainment products, you know, if the major conferences were to break away and say, you know what,

you guys do your NCAA tournament, March Madness, however you want to do it over there. We're going to spend and compete in a way that incentivizes us to have our own deal over here. There may well be people out there who are bummed out that the thing that they loved on the level of entertainment used to be one way. And now the economic forces are bringing this all in a different direction.

But it won't be all that different. I don't see the NCAA tournament ever ending. Whether they break away in a separate division or not. Remember, right now, the Ivy League champion can play against the SEC champion in the first round of the NCAA tournament. There's no resemblance in their economics and that's what makes that tournament fun. Right? You like to see the badly under-resourced underdog because anybody

can win one basketball game. I want Harvard to feel like a Cinderella, Jeffrey. Only players like him do it. So that's gonna never change no matter that. You're always gonna have the NCAA tournament and in fact the greater the resource differences the more exciting the tournament is. That's always going to be the case and in terms of the college football players' playoffs being segmented, that's already happened. That has nothing, so like you either like it or don't like it that you now have this

playoff and that it's getting more teams but that's going to be the future again whether or not we win our cases or lose our cases, that's there. So from the experience of the fan, I don't see them losing anything that they love. And I think in a lot of ways, the sport will get better as there is, I think, going to be more opportunities for teams to get better in different ways that is currently, you know, the system, right? How much do you think about or care about this part of the conversation, right?

The potentially unintended consequences of the ways that the business is changing because as we said at the very beginning, you happen to be one of the most powerful people when it comes to influencing the change. It's not your job, but I'm curious. I spend my life as an antitrust lawyer. Antitrust lawyers believe that competition produces good results and that's the whole philosophy of that legal system, which is our country's legal system going back

to 1890. So I have confidence that the outcome of a competitive market is going to be a good outcome, but what you don't do is let a private group of actors who are economically self-motivated, says to do their own thing, to decide we're not gonna have competition and we're gonna pay one group instead of another group the group that actually deserves and earns that revenue. Is there a case, is there a story from your long

your long laundry list of things you've dealt with that most tickles you when you think back on it, that makes you happy. So it's hard to pick one particular thing because it's like, you know, like I have four grandchildren and they all ask me every day which one is my favorite grandchild and I tell them they're all my favorite grandchildren. The malice at the palace, Jeffrey, wants to be your favorite grandkid. I'm not going to pick between them. And so this is how we get all the way back around, by the way, to David Stern, coming full circle with Jeffrey Kessler and the man who was his arch nemesis. Because Jeffrey was representing not just Ron Artest, as he was then known, but also

Jermaine O'Neill. These being two Indiana Pacers who found themselves, so to speak, in the middle of the most infamous brawl in the history of basketball. November 19th, 2004, to date which will live in infamy in NBA, Pacers, and Pistons history. It's the date of the malice at the Palace when Ron Artest went into the stands, punched a fan." But the reason Jeffrey Kessler now found himself in federal court against David Stern's NBA was because David Stern had given his client a 25-game suspension. A suspension so massive, in fact, that an independent arbitrator had already ruled that this punishment was excessive

and therefore it should be reduced, to which David Stern had said, No, no, no, I am David Stern, the commissioner of the NBA, and my power to suspend a player for on-court behavior is absolute. These on-court incidents are my jurisdiction, not some arbitrators. They cannot compromise and reduce my power." And what Jeffrey Kessler did in response in federal court was argue that the malice at the palace was not an on-court incident. It was an off-court incident. And the federal judge agreed. Suspension reduced.

So what I wanted to do before ejecting Jeffrey Kessler from my studio was get him to tell me something, anything, about what it was like to take on his arch nemesis and to curtail the power of the most powerful person in basketball, one of the most powerful people in all of sports. I'll tell you a great story about that. Please. While I'm arguing, I see that Artest is writing something down on a pad. Okay, and he's giving it to O'Neill, O'Neill sort of like laughing and chocolate pie, so I was wondering what that was. The argument ended, everybody went home, I was like the last person in the conference

room and I go, and I say, where's that pad, right? And I found he left the pad there, and when Artest wrote wrote on that pad which I have in my office to this day he wrote down to a kneeled shoulder to him while I was arguing and he wrote Jeff is gangster and that was the greatest compliment I have ever gotten from a client. Jeffrey Kessler the greatest gangster in the history of sports law. Thank you for joining Poblatory Finds Out. Thank you. It's been fun.

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