A Conversation with the NCAA's Biggest Nightmare

Welcome to Pablo Torre Finds Out.

I am Pablo Torre, and today we're going to find out what this sound is.

Jeff is gangster.

Right after this ad.

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All right, we have a big show today, Cortez.

It's March Madness.

Oh, I thought we were going to talk about Bam's three-pointer against the piston.

No, we are not talking about it.

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 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 want to say it is not our.

I have no say over your final four.

Let me show you a math equipment.

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 want to hear the first one?

I guess we should start with the worst.

The 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.

You know what you could do?

You know what?

Some people don't.

You could do that.

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 could win.

Or you could try to take me on one-on-one.

Well, first of all, you can do it however you want, because I'm waxing.

I'm expected

on enough occasions.

I don't want I don't

want to do that.

I'm here to invitation.

You best be careful.

As always.

Please, you just learned it's sports.

Step back.

All right, guys.

Well, appreciate you.

Always get the debate going, my man.

That's what it is.

Appreciate you.

Bye.

Have a nice day.

So that isn't admittedly like all time.

That's what I think of when you say sports argument.

It's clearly not the best, but it is.

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.

So that's what you need to do.

Oh, stop with your Michael K.

I'm on the air.

I've 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 Kay.

I've got two kids.

I've got a wife.

17 years I'll be married during September.

Guess what?

No, Michael Kay.

I've got hair that people would die to have.

Michael Kay, nothing.

I'm a fabulous driver.

Michael Kay, it'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

when I bring you the topic of we're here to talk about the power of argument in sports and and you give me uh 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 then friends shut up I am a loyal friend I'd rather sit here than sit there and be a fing low fing brow rat out of the sewer brown rat brow low brown rat stop trying to regret

low brow you're such a scum

I sit here because you are seriously so

How is that even?

No, that's sports.

That's what you're complaining about.

That is definitionally

not what I asked you to bring in.

Technically, there's a real housewife from season two named Jen Shaw who's sitting in prison right now for fraud, defrauding the elderly.

And that was her.

No, she's not in that clip.

She wasn't the lowbrow

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 what is how is that not what is your number one seed if that is go on

you were glad i told you you were glad i told you

you didn't believe it before

can i get in here i'm not a horrible person

i hate you that's that's was the same clip was that the same exact clip as before no not the same clip it's from the same show it's from the reunion incredible reunion john oliver called it better than oppenheimer That reunion, by the way.

I'm not kidding.

So what you've inadvertently done is actually illustrate an important point that I was trying to make, that arguing is just everywhere at this point.

It has 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.

Okay, so the unionization of college athletes, like a Dartmouth, a men's basketball team, they're historic.

Yeah.

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 Legreca, Stephen A., Will Kane, Mick Wright.

No, not like Monica.

Number one seed.

This man is better than all of them combined in ways that 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.

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Jeffrey Kessler, I don't know 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, 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.

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 fing 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.

He has been involved in,

if I'm thinking of the right guy, ownership of the balls.

That's right.

Right.

And I did cross-examine him a bit.

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 Bountygate 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 Deflate Gate.

Can you just touch us for a second?

We've been sitting out here all day.

I know, and I've been in there all day working hard.

Did it go the way you wanted it to go?

We put in a very compelling case.

That's all I will say.

The U.S.

women's soccer teams fight.

For equal pay, yes.

For equal pay, gender equity.

You're representing them.

They went to the World Cup while after we filed our 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.

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 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 really a major 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.

Good timing by you is what you're saying.

That's exactly right.

It was taking advantage of opportunities that as this business grew,

I got called more and 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 have 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 have Jordan and LeBron takes Jeffrey?

So I don't pretend

to be an expert on sports.

You know, I'm a sports fan, like a lot of sports fans.

But I do think I'm an expert on the legal issues that confront sports.

So, you know, 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 money makers 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 in a podium, you know, I dressed apart.

What do you wear?

Take me inside.

No, I wore my best suit and my tie and I was ready to go.

The naked horizontal monopsony restraints that the competing NCA schools have adopted in these labor 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 broad as class actions.

In a class action, you get a few representative 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 NCA 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 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.

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 9-0.

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 I football and basketball players are unenforceable.

Five would have been fine.

You win 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 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

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 NCA was doing to regulate the economics of athletes could be justified, that it was all just a cartel,

we could 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 an area

where there is bipartisan, conservative, liberal

consensus that this is wrong.

Anybody who looked at it today would say

the strength and conditioning coaches is 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 NTA 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 know, you go back in the history of sports, you know, they used to claim ownership of all professional athletes, you know, going back to the old days of the reserve clause in baseball, that

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 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, Charlie Baker.

He is saying, we know we've got to change.

So I said, the question is,

how quickly?

And what is the change going to be?

Is it going to 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 here.

First of all, the whole purpose of antitrust laws, as Justice Cavanor 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 this sweet spot of what what the antitrust laws hold to be unlawful.

The second thing about 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.

It 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 Freeman McNeil verdict and we were all sitting around, Freeman McNeil's lawyer was there.

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 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 going to be cut and he was going to 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

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 madness 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're 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 in names, images, and likenesses alone has got to be worth at least 10%

of the value of the broadcast.

And so that's how 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, you're looking for the pay there.

That one, I believe, January, it's lated for.

And then there's another case.

And by the way, 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 Densive 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 can 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 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 Emmert, 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, in most cities.

But Charlie Baker, it seems like 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

wrecked Havanaugh now and 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, D.C., and he convinces Washington, D.C.

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, 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

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,

but also an agreement on this vision for a stable future system, as you have been alluding to throughout our conversation.

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.

You know, you know, we would never settle for an unfair system if there's a will

among the NCA membership to do that.

You know, and, you know, so whether I'll happen, I don't have any idea.

You know, it takes, you know, 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 we've articulated,

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 Three.

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 says, 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 believe contributes to a positive educational experience and gets them bodies in the door, and it will survive without even $1

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 it's going to come from the non-revenue sports.

It's never happened.

So maybe

the athletic director won't make $4 million.

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 into 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 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.

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 breakoff of a power two

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 going to 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 NCA 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 NCA tournament.

There's no resemblance of their economics, and that's what makes that tournament fun, right?

You like to see the madly

under-resourced underdog because anybody can win one basketball.

I want Harvard to feel like a Cinderella just free.

Only place I can do it.

So that's going to never change no matter that.

You're always going to have the NCA 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, well, 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 than is currently

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 spent 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

good outcome.

But what you don't do is let a private group of actors who are economically self-motivated

to do their own thing to decide we're not going to have competition and we're going to 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 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 must be your favorite grand grandchild.

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 Art Test, 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.

And 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 Artess is writing something down on a pad.

Okay.

And he's giving it to McNeil.

McNeil sort of to O'Neil.

O'Neil sort of like laughing and chuckling.

I said, 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, you know, wait, wait, where's that pad?

Right.

And I found he left the pad there.

And what Artess wrote on that pad, which I have in my office to this day, he wrote down to O'Neil Children 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 Pablo Torre Finds Out.

Thank you.

It's good fun.

So, at the end here, as I sit down in front of this keyboard and wonder what it is that I found out today, I don't gotta do a lot of wondering this time.

Because what I found out today is that the NCAA is fed.

I found out the NCAA is already dead.

And that Jeffrey Kessler is the face they're going to see at the other end of that table.

At the pearly gates, or worse, who is offering them a choice to make.

Because look, yes, college athletes are going to start unionizing and they probably should, as they are with the Dartmouth men's basketball team, and that is all good.

Cool.

But that is not what the NCAA is existentially worried about.

That's not the nightmare for the NCAA.

That's not the nightmare that's keeping them up in a cold sweat as they try to watch March Madness.

No,

they're worried about Jeffrey.

Because Jeffrey is the guy who has all of these antitrust lawsuits.

The lawsuits he has already won, starting in the Supreme Court.

The lawsuits that will compel the NCAA to pay damages, and this is the key part here: the damages that are gonna get tripled.

They're called treble damages in the world of law, triple damages, because that is how antitrust litigation in America in specific works.

That is why Jeffrey chose that strategy.

He's going for where the money is.

And the NCAA

is going to owe these former athletes, represented by Jeffrey, billions of dollars.

Plural, billions.

And the NCAA does not have that.

They don't have a way of getting out of paying that.

And that is going to lead, by the way, to unintended consequences.

The changing of the TV show, the game, the product, the entertainment vehicle that you may have fallen in love with.

It probably won't be the same.

I am departing from Jeffrey in that way.

He's far more optimistic about how it's going to be exactly what you fell in love with, just more fair.

I think there are trade-offs between justice and entertainment in that way.

But for now, the NCAA is going to sit down at that table, and Jeffree's going to be right across, and they're going to have to settle if they want to live.

Good luck.

This has been Pablo Torre finds out a Metalark media production.

And I'll talk to you next time.