As cases mount, attorneys rush into the field of college sports law
05/26/2014 8:46 PM
06/03/2014 10:17 AM
When Lloyd Shefsky this month addressed the 40th annual conference of the Sports Lawyers Association, he looked upon a sea of 90 round tables, 10 people seated at each.
Unbelievable, thought Shefsky, a Chicago attorney. He had organized the group’s first meeting, where all in attendance could’ve gathered around just one of those tables.
“And, really, none of those lawyers knew anything” about sports law, he said.
The practice today is soaring, and no aspect of sports law faces better prospects for a spike in billable hours than collegiate athletics.
“A lot of lawyers are running in the direction of amateur athletics because it won’t be amateur for long,” predicted Marc Edelman, a sports law professor at New York’s Baruch College.
Count the Kansas City law office of Shook, Hardy & Bacon among the legal Goliaths that see college sports in the crosshairs of efforts nationwide to rewrite long-held rules regarding student athletes.
Shook Hardy is launching an intercollegiate and amatuer sports practice. The firm hired a pair of Kansas City lawyers, including former University of Missouri quarterback Corbyn “Corby” Jones, to defend the NCAA and other institutions from what Shook Hardy chairman John Murphy calls “an attack on amateur athletics in general.”
Across the Kansas City area, where the NCAA was headquartered until 1999, several attorneys have experience in collegiate sports law. Their practices could juke in new directions as pressures mount to change the student-athlete model, said Chuck Smrt of Lenexa-based The Compliance Group, which works with college sports programs nationwide.
“Different suits are converging, like streams coming together and swirling around in a pool,” Smrt said. “When it all settles, nobody knows what it’s going to look like.”
Among the streams:
<bullet>In March, a National Labor Relations Board regional director ruled that scholarship football players at Northwestern University were employees. The surprise decision allowed them to vote last month on whether to form the first players union in the history of college sports.
The results of that vote and its potential effect on other private colleges may not be known for months, as the NLRB reviews the matter at the university’s urging.
<bullet>A federal judge has scheduled a bench trial in June to hear arguments in what could be a landmark antitrust class action against the NCAA.
Lead plaintiff and former UCLA basketball star Ed O’Bannon, seeks an injunction to halt the using of players’ images in college-themed video games. Related suits could lead to ex-amateurs collecting damages or royalties.
<bullet>Many sports lawyers see a legal scrum ahead in the trend of some college basketball powers, including Kansas, to recruit “one-and-done” high school stars who get drafted by the professional NBA after their freshmen seasons.
The decision on whether to require two years of schooling likely will rest with the NBA. In the meantime, litigators are challenging the fairness and legality of an NCAA policy that restricts scholarship athletes from hiring lawyers to negotiate contracts with pro sports teams.
“Some of these cases are unprecedented and they’re all happening at once,” said Cincinnati, Ohio, sports lawyer Eric K. Combs. He represents plaintiffs seeking to undo the student-athlete model, thus allowing players to be recognized as athletes first and students second.
“There’s too much money involved, too many smart people involved, not to foresee change coming and head it off at the pass,” he said.
Lawyer Bill Odle, who is partnering with Jones in the new Shook Hardy practice, said: “There are ways to fix problems in the system. But you don’t want to take a meat cleaver and destroy the concept of amateurism.”
The sports lawyers group that Shefsky launched in the mid-1970s spread from the Chicago area with a focus on the legal tangles of professional players and teams.
Colleges at the time were embroiled in conflicts involving Title IX, the federal requirement that equal resources be given to women and men’s sports. But hardly any discussion was given to paying student athletes beyond the tuition, room and board provided by their scholarships, Shefsky said.
The focus on college sports changed big time beginning with a U.S. Supreme Court decision in 1984. The ruling allowed large colleges to negotiate their own TV contracts to broadcast football games, a privilege once hoarded by the NCAA.
Broadcast deals exploded as cable television channels multiplied. Rich universities and athletic conferences got richer and, as Shefsky notes, “money drives a lot of things in the need for lawyers and advisors.”
This spring, with the “March Madness” of the NCAA basketball tourney again captivating the nation, news events collided to elevate the debate over amateur athletes.
A federal regulatory path was cleared to enable Northwestern’s gridiron team to vote on unionizing. And University of Connecticut basketball guard Shabazz Napier, who would lead his team to the national championship, made headlines when he told reporters “there are hungry nights that I go to bed and I’m starving.”
Shabazz’s remarks prompted some Connecticut state legislators to explore ways to enable athletes at UConn, a state institution, to form a union.
“He says he’s going to bed hungry at a time when millions of dollars are being made off him,” Rep. Matthew Lesser told the Associated Press. “It’s obscene.”
Lawyers Shefsky and Combs are doubtful that scholarship athletes around the country will have union cards anytime soon. The topic is too thorny for state legislatures that govern public universities, they said.
Still, universities and politicians this summer are apt to be scrambling for legal advice on the many issues that could swell from some student athletes seeking to be regarded as employees.
“What’s going on now is probably a standard reaction that unions and employers have anytime the first legal cases come along,” Shefsky said. “Nobody believes it’s possible until it happens, then everyone’s looking for protection.”
And looking for answers: Would college football players being compensated get taxed? Would an athletic department in such cases be taxed, too, as a profit-seeking business?
“What about employee benefits? Workman’s compensation? Health insurance? What if a pay-for-play athlete gets injured?” asked University of Missouri-Kansas City sports law professor Kenneth Ferguson. And what of the athletes, such as the tennis players and swimmers, who don’t generate revenue for the university?
Ferguson in the 1990s taught a one-semester “sports and entertainment” law course at UMKC. In recent years the curriculum has expanded to three courses: entertainment law, professional sports law and amateur sports law.
The desire to practice sports law reflects the appeal of athletics — amateur or otherwise — in American culture, said lawyer Mike Glazier, a former NCAA official who heads a six-person sports law practice at Bond Schoeneck & King’s office in Overland Park.
“Lawyers are sports fans, too,” he said. “When they see an opportunity to dip their toe in the water, some get all tingly.”
A former quarterback at Indiana University, Glazier used to be glued to college games on TV. But after a quarter-century of representing universities, conferences and individuals entangled in NCAA-alleged infractions, his interest as a fan has waned.
New Shook Hardy lawyer Jones helped turn Mizzou’s football program into a winner in the late 1990s.
Now, a decade after obtaining his MU law degree, he symbolizes what many amateur athletic associations seek to stress: Scholar first, athlete second, even though Jones was among the lucky few to play professionally — in Canada and on the practice squad of the Baltimore Ravens — for a brief time.
As an undergraduate Jones said he saw the price of his Tigers jersey rise three-fold, to $87, while his team posted consecutive winning records. He marveled at his own prowess as a video-game automatron eluding pass rushers.
He said he never once thought entitled to a cut of sales.
“The exposure and affinity I gained (from college sports) was worth far more than the equivilant of monetary compensation,” Jones said.
“I’ve been in both professional and college locker rooms,” he said. “I can tell you there’s a lot more of a common goal and a collegial setting” among amateur players.
Times have changed, Jones allowed, for college athletes: “With social media, you’re a star 24/7. I could turn it off after I left the practice field. These kids can never turn it off.”
Jones and Odle left another local firm’s sports practice and brought with them the NCAA as one of their clients.
The lawyers felt that “the national platform of Shook Hardy could provide us a leg up,” said Odle, who got his undergraduate degree from the University of Kansas in 1984 and then a law degree from the University of Michigan.
Shook Hardy, founded 1889 in Kansas City, has 11 offices in the United States and Europe.
Could there be more growth from college sports litigation?
At least when it comes to pro sports, “10 percent of (law) firms that do sports law are doing 90 percent of the work,” said professor Edelman. “It remains to be seen whether that pattern carries over into amateur sports.”
To reach Rick Montgomery, call 816-234-4410 or send email to firstname.lastname@example.org.
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