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Five Questions For Big 12 Commissioner Bob Bowlsby

Posted by on Dec 9, 2014 in Current Events, Featured | 3 comments

Five Questions For Big 12 Commissioner Bob Bowlsby

The Big 12 has had a rough few days, and Commissioner Bob Bowlsby has been making the media rounds answering questions about why the conference’s co-champions, Baylor and TCU, were left out of the first ever College Football Playoff.  After listening to Mr. Bowlsby’s comments, it strikes me that there are several questions that remain unanswered, particularly pertaining to his advocacy on behalf of the league, Baylor and TCU. Before getting to the questions, here’s what this post is not about.  It’s not about why Mr. Bowlsby chose not to declare Baylor the Big 12’s one true champion in the middle of a season, even with Baylor’s head-to-head advantage over TCU.  Co-champions are not unusual and not controversial.  They occur in many schools in many sports, and to make that the issue is trivial and missing the bigger picture.  The idea that the conference would call the committee and say, “Baylor is our champion,” and that the committee would say, “oh well in that case…” doesn’t ring true to me. This post is also not about the merits of Ohio State’s selection for the fourth playoff spot over Baylor or TCU.  That debate can certainly be had, but it’s not the crux of the questions Mr. Bowlsby should be addressing.  With those caveats out of the way, let’s get to the questions: 1) Why did the Big 12 not push back against the narrative that Baylor and TCU had something of a lesser championship than the other conferences?  The committee could have been checking the box next to each school for possessing a conference championship; instead, it appears they put half a check, or a check with an asterisk.  It seems as though the Big 12 was so determined to be clear about having co-champions, that it allowed an unnecessary and potentially harmful devaluing of each school’s championship. 2) Why did the Big 12 not fully and forcefully promote BOTH Baylor and TCU as deserving of a playoff berth?  It is completely reasonable and understandable that Mr. Bowlsby didn’t think it appropriate to back one horse over the other.  However, he still had the choice to advocate for each school emphatically while equally, but instead chose not to get involved.  There was plenty of data available to make the case that the Big 12 is among the best conferences, that leaving out its champion(s) would be a huge mistake, and that Baylor and TCU were each worthy of inclusion.  Instead, silence. 3)  Why has the Big 12 not disagreed with, or objected to, the committee’s decision to leave out its champions?  Mr. Bowlsby has spent much of the past two days talking about how he understands the difficulty of the committee’s task and that someone was always going to be left out.  Those comments sound like they would come from Committee Chair Jeff Long, not the commissioner of the one league whose champions were left out.  And not only has Mr. Bowlsby not disagreed with the committee’s decision, on the Dan Patrick radio show yesterday, he said he thought the committee got it right.  If as commissioner you don’t believe in your teams, or for whatever reason aren’t willing to boldly advocate for them, why should the committee or anyone else feel differently? 4) Why does the Big 12 accept the premise publicly that there was something it did to deserve this fate?  Every time Mr. Bowlsby goes down the road of how the Big 12 could change its structure in order to appease the committee, it furthers the notion that the committee got it right and Baylor and TCU...

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The O’Bannon Decision: How Did Judge Wilken Reach Her Conclusion?

Posted by on Aug 10, 2014 in Featured, Legal and NCAA | 2 comments

The O’Bannon Decision: How Did Judge Wilken Reach Her Conclusion?

Late Friday, Judge Claudia Wilken issued her much anticipated decision in the O’Bannon v. NCAA case.  In the 99 page ruling, she declared the NCAA’s rules prohibiting compensation to student-athletes for their names, images and likenesses (NILs) to be in violation of federal antitrust law.  Judge Wilken therefore enjoined the NCAA from enforcing any rules which: 1) prohibit schools or conferences from awarding limited portions of NIL revenue to student-athletes above full grant-in-aid, and 2) prohibit schools or conferences from depositing limited portions of NIL revenue in a trust account, to be accessed by the student-athlete after they depart the school or exhaust their eligibility.  The NCAA is permitted to cap the amount received while in school, provided it is not less than full cost-of-attendance.  It may also cap the amount set aside in trust, but not at an amount less than $5,000 (in 2014 dollars) for each year a student-athletes is eligible. So how did she get there?  Let’s walk through her analysis step by step. Something to keep in mind is that this was a “bench trial,” meaning there was no jury and that the judge is the finder of fact.  Judge Wilken’s decision is therefore broken down into two separate parts: weighing the evidence to determine the facts of the case, and then a legal analysis applying the law to those facts.  We’ll use the latter section here, which will reveal her fact finding along the way and make for a more succinct analysis. As plaintiffs, O’Bannon had to demonstrate that 1) there was a contract/agreement where 2) the NCAA’s rules unreasonably restrained trade which 3) impacted interstate commerce.  There was no disagreement between the parties that (1) and (3) were met; the only question was (2) whether the NCAA’s rules unreasonably restrained trade. It’s best to think of the analysis in terms of a ping-pong or tennis match. The plaintiffs bore the first burden, by showing the NCAA rules had anticompetitive effects in a relevant market.  They needed to hit the ball over the net just to get the game going. Is There A Market? Judge Wilken says yes, there are markets: a) a college education market (i.e. schools compete to recruit student-athletes) and b) a group license market where television networks and video game developers compete for the rights to student-athletes NILs to be used in (submarkets) live television broadcasts, video games and archive footage.  Each market was challenged by the NCAA as non-existent or wrongly defined, arguments Judge Wilken did not find persuasive. The NCAA tried to argue, to no avail, that there were comparable alternatives to playing Division I football/men’s basketball, such as international competition and minor leagues.  According to the NCAA, it competed with these and other opportunities for student-athletes, and it’s this broader market which should be evaluated.  Judge Wilken disagreed and said these were not comparable opportunities in the same market, and therefore Division I football/men’s basketball was its own distinct market. Regarding the markets for student-athletes’ NILs in live television broadcasts, video games and archive footage, Judge Wilken said yes, those markets exist.  Television networks, video game and media companies each make sure they have the NIL rights in any rights agreement they sign.  So at this point we have markets within which to look for anticompetitive effects. Anticompetitive Effects? Once we know there are markets, the next step is to look for whether the NCAA rules at issue had any anticompetitive effects within those markets. Regarding the college education market, Judge Wilken ruled that by acting in concert to charge student-athletes the same price for their education...

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College Sports Briefing Episode 007: The 1st Amendment Edition

Posted by on Apr 28, 2014 in Audio and Podcasts, Featured | 0 comments

College Sports Briefing Episode 007: The 1st Amendment Edition

http://traffic.libsyn.com/collegesportsbriefing/CSB007MP3S.mp3 Podcast: Play in new window | Download | Embed1)      The Freedom From Religion Foundation recently sent a scathing letter to Clemson University, expressing a number of concerns regarding it’s football program and head coach Dabo Swinney.  Here is Coach Swinney’s response. 2)      O’Bannon Ruling MSJs denied NCAA can’t use 1st Amendment defense or benefit to women’s sport defense. 3)      Roundup Kelvin Sampson at UofHouston New NCAA lawsuit More status quo comments  Mark Emmert: “They’re taking a seat from a paying student.” On Mike and Mike Texas AD Steve Patterson:  If union went through and salaries were paid, UT would only offer a few sports. NCAA Board of Directors approved increased autonomy for Big Five Links collegesportsbriefs.com/itunes facebook.com/collegesportsbriefs On Twitter @DanielHare....

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The Kelvin Sampson I Know Is A Great Hire

Posted by on Apr 15, 2014 in Current Events, Featured | 0 comments

The Kelvin Sampson I Know Is A Great Hire

My first interaction with Kelvin Sampson was the 1994-95 academic year.  I was a junior in high school, and the biggest Oklahoma Sooners basketball fan around.  It was Coach Sampson’s first season at OU, where he replaced the incredible Billy Tubbs. I loved Billy Tubbs.  During his tenure I went to the games, the camps and anything else they would open the doors of Lloyd Noble Center for.  I therefore had a high standard for his replacement, and Coach Sampson delivered.  He brought an intensity and passion for the game that I had not seen before.  My friend Bobby Soltani and I quickly began referring to him as Uncle Sampson (we each loved our dads so that position was unavailable, but figured you can have lots of uncles so why couldn’t he be one?!). I mentioned 1994-95 was my first interaction with Coach Sampson, and that’s exactly what it was, an interaction.  See I began writing letters to him regularly; asking questions, congratulating him in good times, encouraging him in bad.  And you know what?  He wrote back every single time.  I’ve never forgotten that; and it meant the world to me. I had the privilege of coaching his son Kellen (who was in 8th grade at the time) during my junior year in college; which gave me my first opportunity to meet Coach Sampson in person.  That led to working the OU basketball camps in the summer, and then getting hired as a volunteer student manager for my senior year. Volunteer student manager; as a college senior.  I’ve never worked so hard in my life, and at the same time never had more fun.  Whether it was filming practice, keeping obscure statistics we would rarely use or even doing laundry, I was living my dream of working for OU Basketball and Coach Kelvin Sampson. After graduation Coach allowed me to extend the dream another year, this time as a full-time employee.  Granted I was punching in at minimum wage, but it didn’t matter.  I was having an experience completely unique and totally surreal. I would return to graduate school for two years.  When searching for athletic department positions around the country after graduation, Coach Sampson was there.  He made a critical call to my future boss at Baylor University Doug Smith, whom he had previously worked with at Oklahoma.  Renzi Stone, a friend and former player at OU for Coach Sampson, happened to be with him when that call took place.  I remember Ren calling me later and saying something to the effect of, “you’re getting that job.”  Later Doug would tell me that Coach Sampson simply said “Doug, you have to hire this guy.”  Look, I worked hard for him. But honestly it wasn’t like I was a long-time assistant coach or life-long acquaintance.  We weren’t “close” in the way friends or families are. But none of that mattered.  Coach Sampson went out of his way to help me because he thought it was the right thing to do.  And I got the job. I can honestly say I would not be where I am today without Coach Sampson.  Since coming to Baylor in 2003 I met my wife, got a law degree, became an athletic director and got hired by Baylor again.  None of that would have happened without Coach Sampson.  In fact, none of that may have happened had he not returned those letters to an impressionable 16 year-old kid. I know he made mistakes at OU.  I know he didn’t own up to them and then made more at Indiana. And I know he hurt...

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College Sports Briefing Episode 006 – The Union Is Coming Edition

Posted by on Apr 7, 2014 in Audio and Podcasts, Featured | 0 comments

College Sports Briefing Episode 006 – The Union Is Coming Edition

http://traffic.libsyn.com/collegesportsbriefing/CSB006MP3.mp3 Podcast: Play in new window | Download | Embed Before we get into the union issues, I talk a bit about judicial review and the courts’ role in deciding law (what is the law v. what should the law be) Also, here is my first reaction to the union decision on BusinessofCollegeSports.com. The union decision step by step (Northwestern NLRB decision) Facts and testimony Rules SAs must follow (p. 4-5) 4+ pages on time commitment (p. 5-9) One paragraph on revenue generation (p. 13) Standard of Review / Analysis Definition of employee (p. 13) Conclusion (p. 14) Provide a valuable service (p. 14) Under Employer Control (p. 15-17) Conclusion (p. 17) Distinguishes Brown (p. 18) What are the next steps Formal appeal by Northwestern Union vote Practical questions raised Would just revenue sports have unions?  Would all participating sports be in the same union? How do private and public school athletes work together? What is the impact of Title IX? What would be the tax implications? Links collegesportsbriefs.com/itunes facebook.com/collegesportsbriefs On Twitter...

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March Was A Rough Month For NCAA

Posted by on Apr 1, 2014 in Featured, Legal and NCAA | 0 comments

March Was A Rough Month For NCAA

It was a rough March for the NCAA.  Most notable was the National Labor Relations Board ruling which said scholarship football players at Northwestern University are employees and can form a union (that decision is being appealed; I posted my thoughts here).  Surprisingly, the NLRB ruling may not have been the worst of it. Last month a new lawsuit was filed against the NCAA, this time directly targeting its rules capping the level of allowable scholarship awards.  If successful, college athletics would be radically changed and we would essentially have a free market system when it comes to athletic scholarships. WHAT HAPPENED? Super-attorney Jeffrey Kessler, who helped usher in the era of free agency to the NFL as well as collective bargaining to the NBA, filed suit on behalf of four current student-athletes against the NCAA and the five major conferences in federal court. The complaint says the NCAA mandates arbitrary scholarship caps which violate anti-trust laws, and the system needs to be changed.  It’s notable that the plaintiffs are seeking class certification for the purposes of injunctive relief (i.e. changing of the rules going forward), but not for damages.  This is consistent with the class certification ruling made by federal judge Claudia Wilken in the similar O’Bannon litigation last year. HOW IS THIS CASE DIFFERENT FROM THE O’BANNON CASE? The significant difference between this case and O’Bannon is the underlying issue.  The O’Bannon plaintiffs argue that their image and likeness has been misappropriated for use in video games and television broadcasts, without just compensation. The Kessler plaintiffs are targeting the actual NCAA bylaw which caps scholarship values at tuition, fees, room, board and books.  They seek to have the bylaw struck down, creating a free market system for athletic scholarships. ISN’T THIS JUST ANOTHER LONG-SHOT CASE? Perhaps, though some commentators have suggested this is the best legal argument to date for attacking the current NCAA / student-athlete model.  There are now at least four related cases against the NCAA for some violation of anti-trust laws related to capping student-athlete compensation.  If any are successful, it would have a major impact on college athletics going forward. The O’Bannon case was filed in 2009 and has survived several pre-trial motions by the NCAA to dismiss the case; it is set for trial in June.  The Kessler case is in its infancy, and will almost certainly take years to work its way through the courts.  However a favorable opinion in O’Bannon could impact the way in which the parties in Kessler’s case proceed. WHAT ELSE SHOULD I KNOW ABOUT THIS CASE? While this case certainly is in line with the other pending litigation as we’ve mentioned, it does not seek to have student-athletes classified as employees. There is a movement to do just that centered on Northwestern University football players.  They won their first step on that journey and must now defend the regional NLRB decision to the national board and ultimately in the courts. If the Kessler plaintiffs were successful, student-athletes would not necessarily be employees or able to unionize.  Rather, the cap on scholarship awards would be lifted such that schools could put together any scholarship package they wanted.  Therefore if Texas A&M wanted to offer the next Johnny Manziel a “scholarship” of tuition, fees, room, board and books, PLUS $250,000 per year, it could. (Plenty of questions would then be raised about whether the athletes receiving amounts above/beyond the cost of attendance are employees, could unionize, and what impact the new rule would have on college athletics’ tax-exempt status). HOW IS THIS CASE LIKELY TO PLAY OUT? It’s...

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College Sports Briefing Episode 005: The NCAA Lawsuit Redux Edition

Posted by on Mar 24, 2014 in Audio and Podcasts, Featured | 0 comments

College Sports Briefing Episode 005: The NCAA Lawsuit Redux Edition

http://traffic.libsyn.com/collegesportsbriefing/CSB005MP3.mp3 Podcast: Play in new window | Download | EmbedShow Notes and Links: 1)      The new lawsuit against the NCAA ESPN article summarizing case The complaint (lawsuit filing in PDF) Judge Andrew Napolitano says best argument yet, should lead to antitrust exemption 2)      Tone-Deaf NCAA President Mark Emmert Article quoting him saying the idea of paying players is “silly.” Meet the Press Transcript 3)      Other topics IMG College president blames escalating expenses in college athletics on Title IX Baylor not allowed to wear sic’em bears on their uniforms Knight Commission meeting Connect to the show: Please go to the blog – collegesportsbriefs.com Please subscribe and leave a review of the show at iTunes: collegesportsbriefs.com/itunes. You can check out the Facebook page: facebook.com/collegesportsbriefs Follow me on...

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Five Questions For Big 12 Commissioner Bob Bowlsby

The Big 12 has had a rough few days, and Commissioner Bob Bowlsby has been making the...

The O’Bannon Decision: How Did Judge Wilken Reach Her Conclusion?

Late Friday, Judge Claudia Wilken issued her much anticipated decision in the O’Bannon...

College Sports Briefing Episode 007: The 1st Amendment Edition

http://traffic.libsyn.com/collegesportsbriefing/CSB007MP3S.mp3 Podcast: Play in new...

The Kelvin Sampson I Know Is A Great Hire

My first interaction with Kelvin Sampson was the 1994-95 academic year.  I was a junior...

College Sports Briefing Episode 006 – The Union Is Coming Edition

http://traffic.libsyn.com/collegesportsbriefing/CSB006MP3.mp3 Podcast: Play in new...

March Was A Rough Month For NCAA

It was a rough March for the NCAA.  Most notable was the National Labor Relations Board...

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http://traffic.libsyn.com/collegesportsbriefing/CSB005MP3.mp3 Podcast: Play in new...

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