#ted doesn’t even know the sport at first I bet what he does know came from either beard or Nate

[coachbeards]

the way we never got beard properly having in depth relationships with any team member lile girl why was he there

[sportsgeekonomics]

Guest Post (response to McDavis) from Sheilla Dingus

I’m very pleased to present a paragraph-by-paragraph response to Cody McDavis’s email (sent in the wake of this debate) to me on why he "will not discuss this matter with [me] further.” 

Thanks to @SheillaDingus for the guest post.  Note Cody’s email is indented and in bold followed by Sheilla’s comments in basic font.  I couldn’t resist inserting my own very technical comments as well -- those are italicized.

Cody: First, allow me to state one undeniable truth: The NCAA amateurism model has been tested at every level in our legal system. Yet, the amateurism model remains the collegiate model.

Sheilla: He has this down to copy and paste. He also said verbatim the same in response to Ted Tatos.  I decided to respond with this:

"Slavery survived scrutiny until it didn't. The Wire Act only applied to sports betting until DOJ decided it didn't. PASPA was law until it wasn't. Standing was much easier to establish pre-Twombly and Iqbal. Precedent only holds until it doesn't."

(BTW, I feel Twombly and Iqbal were HORRIBLE decisions but they alter prior precedent and made it much harder for plaintiffs)

Andy’s Note:  I don’t know Iqbal well but as a practitioner I can tell you Twombly has been horrible for the system)

 Your colleague, Mr. Dan Rascher, has appeared in several legal challenges of the NCAA amateurism model to give testimony on the same economic theories you have presented to me. Those theories failed to overturn the NCAA collegiate amateurism model on numerous occasions.

Yet. NCAA was rebuked for presenting no studies or credible evidence while Rascher's work was found credible. Judge Wilken seemed to be in almost complete agreement but decided to play it safe and structure her opinion firmly in 9th Circuit precedent.

Andy’s Note: Almost nothing that I said to Cody was taken from Dan’s testimony.  I probably was working my way towards it, but all we had gotten to was whether or not Cody agreed that the current system reduces the earnings of some athletes relative to a system without a cap.

Cody: Second, I want to make clear my stance on the issue of pay-for-play: men’s basketball and football student-athletes should not be paid because it will result in other sports being cut.

Sheilla: Ok, Cody, we get it.  This is your stance that many fellow college athletes disagree with, but now I have a question for you. Regarding those sports that you predict will be cut, why is that a problem if they aren't sustainable.  Most participants would be going to college anyway and would likely receive a better education had they not participated. 

Here's but one example.  My niece went to college on a softball scholarship. Her grades were good and her parents easily able to afford her tuition at the college of her choice.  Instead of going to a school based on academics she went to a much less prestigious school than she likely would have had the scholarship not been in the picture. 

She played on an all-white women's team among teammates who also likely came from affluent families.  She rode buses and had to cram for exams at 4 AM. She had to grapple with professors who had a problem with her missing classes and coaches that insisted that her presence on the team was mandatory. She graduated a low B student, but had she focused on academics she would have likely been an A student.

THEREFORE - Young predominately African American men at their most marketable phase, and largely of very modest means, paid for a bunch of affluent white girls to have some fun on the softball field while neglecting their academics.

Cody: The conversation surrounding this debate has been misleading in the fact that the pay-for-play argument is almost exclusively for the benefit of men’s basketball and football at top universities. In fact, the most recent legal challengers of the NCAA amateurism model failed to mention any sport other than Division I Basketball and FBS Football in their closing legal briefs. There are hundreds of thousands of student-athletes that give their blood, sweat, and tears to sports they have played their whole lives. They deserve the opportunity to play at the Division I level and to earn a debt-free education at the school they chose just as much as any football and men’s basketball student-athlete does.

Sheilla: And who's arguing that the less than elite athletes will suddenly be robbed of the opportunity to participate in sports?  If their sport is cut at one school they'll be able to find it at another just as they do now.   If the wealthy kids want to participate in sports there are numerous opportunities for them to do so without attending school on a scholarship paid for by a poor kid.  If a poor kid is elite, programs will compete to have him/her in their programs.

In the meantime, those kids who "give their blood sweat and tears," as the system currently exists receive in addition to a scholarship and degree (maybe if they're among the students fortunate enough to stay in favor with the coaches and keep the scholarship or maintain the grades necessary to graduate) they will pay for their attendance often with nagging injuries that become progressively worse as they age with no allowance for medical bills that could easily eclipse what the would have paid in tuition.  Those in contact sports also may also deal with brain injury that manifests in progressive neurological disease that robs them of the ability to use the degrees they earned.  That's why thousands of players are involved in hundreds of lawsuits against their schools and the NCAA. If the NFL gets discovery in its lawsuit with insurers perhaps at some point all the settlements that took place quietly and were swept under the rug will also come to light.

Andy’s Note: As a technical matter, the Court in O’Bannon and Alston had explicitly ruled out considering other sports because they were found to be in different relevant markets.  Morover, the reason the Alston plaintiffs only discussed football and M/W basketball was because only those classes were certified.   Cody is a law student, so I would think he would have known this, but for the non-lawyers (or bad law students) reading this, by law that limited the case to the impact on those athletes and excluded athletes outside of the class.

Cody: Top talent should be able to be paid by going directly to the NBA, but the NBA must rescind their one-and-done rule for that to happen.

Sheilla: Just like a top 1L should bypass law school right? 

Of course, this only addresses men's basketball. The NFL would also to alter its rules.

Perhaps college graduates should work the first 4 years after graduation for their employers without pay?  Call it an internship--they'd receive lot's of valuable practical training.

Cody: I will not discuss this matter with you further.

Sheilla: (I'm going to take my ball and go home! I don't wanna play with you cuz you always win)

Andy’s Note: I hadn’t even begun to show my teeth yet.