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Musings from Arledge: Title IX, bag men, blowing out Arkansas

This is a football board.  I stay away from politics and social issues here.  But in recent years it has been difficult to be a USC football fan and not take at least some interest in the USC Title IX office.  USC is not alone.  Title IX tribunals across the nation are under fire.

Title IX of the Education Amendments of 1972 prohibits sex discrimination in federally funded educational programs.  For much of Title IX’s history, the primary controversy around the law concerned its effect on student opportunity: proponents praised it for opening opportunity for women athletes; detractors condemned the law – or, more properly, the regulations interpreting it – for shutting down large numbers of men’s sports programs. I mention the regulations because, for reasons that fall well outside of any discussion of USC football, statutes in recent decades tend to be fleshed out by – and get most of their meaning from – federal administrative agencies.

Over time, the controversy surrounding Title IX has shifted, as the Office for Civil Rights (“OCR”) has interpreted the law to require colleges to investigate and discipline student-on-student sexual harassment or assault allegations – an interpretation applied to colleges and universities nationally by – ironically enough – Bill Clinton’s administration.

But the current state of the controversy is often deemed to have begun in 2011, when the OCR sent a letter to colleges and universities nationwide setting forth the OCR’s view of how colleges should handle such allegations.  The letter defines sexual harassment broadly, argues that schools “must take steps to protect the complainant” and required that schools apply a “preponderance-of-the-evidence” evidentiary standard.  Importantly, the letter says that schools are not required to allow the accused to have a lawyer, and it strongly discouraged allowing the accused to cross-examine the accuser.  The OCR told schools that the failure to follow their guidelines could result in the loss of federal funding.

https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf

The way universities have implemented the OCR’s directives have been controversial and, recently, the subject of harsh criticism by many state and federal courts.  Proponents of the types of process used by many universities argue that sexual harassment and assault is prevalent on campus, that victims are often afraid to come forward, and that the procedures used to investigate sexual harassment and assault are necessary to protect victims.  And it probably does help some victims, maybe many victims.  It also does so at some cost.  In many universities, an accused student has no right to a lawyer, no right to cross-examine the accuser, and often receives notice of the charges and the evidence to be presented sufficiently too late in the process to prepare an effective defense, even if the student were otherwise qualified to prepare one.

Free-speech advocacy group the Foundation for Individual Rights in Education has issued a report that shows the rights that are (or are not) granted by various colleges and universities, including USC:

https://www.thefire.org/spotlight/due-process-reports/due-process-report-2017/

The practical effect of the approach taken by most colleges and universities is that 18-22 year old undergraduate students with no skill or training in legal proceedings are tried by university administrators on charges that, if found true, could result in life-changing disciplinary action, and they face those proceedings without the most-basic protections afforded to criminal defendants, civil litigants, or even enemy combatants tried before US military tribunals.  And for this reason, we are seeing a growing number of state and federal courts have ruled in favor of students who have been punished in university disciplinary proceedings, such as the recent opinion in the United States Court of Appeals for the Sixth Circuit where the appellate court concluded that the University of Cincinnati’s “failure to provide any form of confrontation of the accuser made the proceeding against John Doe fundamentally unfair.”

I’m a trial lawyer.  I’m trained to marshal evidence and make a case.  What chance does the average 18-year-old have of fighting off my presentation if he has no lawyer, no right to question my witnesses, and a limited ability to review the charges and evidence against him?  So why do we tolerate having 18-year-old students defend themselves against charges that will have life-long repercussions against professional Title IX officers under those same conditions?  It’s not right.

 

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A few years ago, the website sbnation.com had an article on college football bag men – the guys who deliver money to recruits and families.

https://www.sbnation.com/college-football/2014/4/10/5594348/college-football-bag-man-interview

In the article, the anonymous bag man from – surprise! – SEC country says this about what he does:

“We can only get away with whatever’s considered reasonable by the majority of the folks in our society. That’s why it’s different in the SEC. Maybe that’s why we’re able to be more active in what we do. Because no one ever looks at the car or the jewelry and says, ‘How did you get that, poor football player?’ They say, ‘How did they get you that and not get caught, poor football player?'”

I came across the article this week, and it got me thinking again about compensating college football and basketball players.  The reason a black market exists, and it’s not just in the SEC, is because big-time college football and basketball are not amateur sports, not really.  The major college football programs make $75 to $200 million in revenues per year, and the coaches pocket $5 million or more.  Little League is amateur; high school sports are amateur (although don’t look at ESPN on a Friday night in the fall; you might start to wonder).  There is nothing “amateur” about major college football.  And when an industry generates hundreds of millions or billions of dollars and the labor force that makes those gains possible do not get paid, we can hardly be surprised by the existence of a black market.

Black markets exist when there is a market for goods or services but the transactions related to those goods and services are prohibited (or made overly costly).  College football makes a lot of money; many people care deeply about the outcomes of games (alas, not USC’s administration or BOT, but believe me that people in other places still care); and therefore money will find its way to players.

I don’t propose the direct payment of money to college athletes apart from a stipend to allow the students to pay their reasonable day-to-day expenses.  Such a plan isn’t feasible, especially since so few programs actually generate revenues.

But what is the argument for precluding athletes from benefitting from their own rights of publicity?  Other college students who have notoriety can benefit from their own names, images, or likenesses.  But Reggie Bush, who generates millions of dollars every year for USC, cannot appear in a commercial?  He cannot get paid to show up and shake hands at the grand opening of a pizza place?  He cannot do voice over work for a sports radio station?  Why not?  Why can everybody capitalize on Reggie Bush but Reggie Bush?  Why are we outraged that his parents get $200,000 from a third party?

Don’t talk to me about amateurism when Nick Saban lives here:

http://www.hauteresidence.com/nick-saban-lake-house/

Do college players get a free education?  Sure, or should I say, I guess some do.  Of course, most football and basketball players at the top programs would not be admitted to their colleges on the strength of their academic accomplishments, and they then carry a heavy non-academic load that makes competing with their more-prepared classmates even more difficult.  Many are moved into easy courses and silly majors as a result.  Others do take advantage of the opportunity.  It’s a good thing when they do.

But what does that have to do with the issue before us?  The existence of the black market shows that, for some athletes at least, the market values their worth at much higher than the cost of tuition, room and board.  So why should they be denied the rest of their value?

Is it because allowing football and basketball players to earn endorsement money would give some schools an unfair advantage?  Guess what – they already have it.  Ohio State has an unfair advantage over Minnesota and Miami of Ohio.  They have it now, they had it 30 years ago, and they’ll probably have it 30 years from now.  Some schools have Urban Meyer and a packed 110,000 seat stadium.  Some don’t.  There is no level playing field already, and why should college athletes be denied their full market value for some third party’s conception of what a level playing field should look like anyway?

Somewhere along the way, college football and basketball became professional sports, with huge arenas, gaudy facilities, enormous television ratings, and millionaire coaches.  But only when the point guard or quarterback says, “What about me?” do we care about amateurism.

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Trojan Game of the Past

USC at Arkansas

September 5, 2006

It was the first year after Matt, Reggie, and LenDale.  The first year after Vince Young ended the streak.  And USC was opening the season in SEC country.  The previous year, USC put 70 on Arkansas at the Coliseum, and the Razorbacks were humiliated.  Humiliated but talented; Arkansas had Felix Jones and Darren McFadden and a number of other very good players on that team.

I went to Arkansas five days before the 2006 game.  The game was all anybody was talking about.  Arkansas newspapers and radio couldn’t stop discussing how the Hogs would get their revenge, how they would get their respect back.  They were going to show USC what the SEC and Arkansas were all about.

USC then hung 50 on them at their place.

What I remember most was listening to the Arkansas fans in the stadium whine about the blowout.  “Way to show class, Pete!  Keep running it up!”  They whined.  And whined.  And whined some more.  It was glorious.  SEC fans humiliated and crying that USC wouldn’t take its foot off the gas.  Two games, 120 points.

SEC! SEC! SEC!



Author
Chris Arledge

Chris Arledge is a graduate of USC’s Gould School of Law and is the co-founder and managing partner of an intellectual property law firm. Chris’s forgettable football career started at Elsinore High School, where his Tigers defeated Kyle Wachholtz’s Norco squad for the league title (Bring on Brad Otton’s team, too!), and ended at William Jewell College, where Chris was a team captain and an all-conference defensive back.


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