Podcast Summary: Pablo Torre Finds Out

Episode: "A Conversation with the NCAA's Biggest Nightmare"

Host: Pablo Torre
Guest: Jeffrey Kessler
Date: March 19, 2024

Episode Overview

Pablo Torre sits down with Jeffrey Kessler, the renowned sports attorney who has become the NCAA’s most formidable adversary. The episode explores the seismic legal battles reshaping college sports, focusing on antitrust litigation, athlete compensation, and the future of the NCAA. Torre frames the conversation around the power of argument in sports—both in media and in the courtroom—and unpacks how Kessler’s legal strategies are forcing long-overdue change.

Key Discussion Points & Insights

1. The Role of Argument in Sports

• The episode begins with humor and banter about "the power of argument" in sports, referencing iconic sports debates and confrontational media.
  • [05:14] Pablo: “Arguing is just everywhere at this point. It is completely oversaturated sports media, media in general, to the point where arguing just feels unremarkable… but none of that changed the NCAA.”
• Torre pivots to say that TV arguments aren’t what’s transforming sports—the real change is happening off-camera, in the courts.

2. Who is Jeffrey Kessler?

• Kessler is introduced as the most influential person in sports most fans don’t recognize—described as “the biggest sports lawyer of all time.”
  • [09:41] Pablo: “Every single collective bargaining agreement, all of them... Jeffrey has handled all of them. He’s the guy.”
• Praise—and animosity—from past adversaries:
  • [07:43] Dominique Foxworth: “He loves and misses you, Jeffrey.”
  • [08:15] David Sampson: "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 loathe him."
  • [08:37] David Stern (quoted): “[Your] conduct, Jeffrey, was routinely despicable… the single most divisive force in our negotiations.”
• Kessler humbly acknowledges his impact:
  • [09:29] Kessler: “I think I’ve had an impact on a few things.”

3. Kessler’s Legal Impact: From Free Agency to NCAA

• Kessler’s work reshaped the economics of pro sports:
  • Brought free agency and salary caps to the NBA and NFL through class actions and settlements.
  • Represented high-profile athletes in disputes with leagues (e.g., Bountygate, Deflategate, Ray Rice, U.S. Women’s Soccer Equal Pay).
• On his philosophy:
  • [22:45] Kessler: “Find where the money is and ask... why it is that these people… cannot access what their actual market value might be.”

4. The NCAA, Antitrust, and the Fight Over Athlete Compensation

A. The Supreme Court’s Alston Decision ([13:43]–[22:29])

• The case (NCAA v. Alston) challenged restrictions on “education-related benefits” for athletes, ultimately bringing about a unanimous Supreme Court decision against the NCAA.
  • [18:12] Pablo: “The Supreme Court unanimously ruling against the NCAA… limits on certain education-related benefits… are unenforceable.”
  • [20:23] Justice Brett Kavanaugh (quoted): “Nowhere else in America can businesses get away with agreeing not to pay their workers a fair market rate… The NCAA is not above the law.”
• Kessler highlights the bipartisan agreement across the Supreme Court, noting the obvious exploitation of athletes compared to coaches/administrators.

B. Why Antitrust is the "Nightmare" for the NCAA ([24:34]–[28:12])

• Antitrust law is more effective than labor law for threatening the NCAA:

  • Triple damages: The NCAA faces not just payouts for damages but triple damages as per antitrust law.
  • Adds immense pressure to settle and restructure their business dramatically.

• Kessler’s ongoing cases (e.g., House v. NCAA, Carter v. NCAA) aim to:

  • Secure payment for athletes’ NIL (Name, Image, Likeness) rights, especially from broadcast revenue.
    • [30:16] Kessler: “The value of just in names, images and likenesses alone has got to be worth at least 10% of the value of the broadcast… we’re looking at billions of dollars.”
  • Strip the NCAA of the ability to regulate or limit athlete compensation.

5. The NCAA’s Options: Settle or Lose

• NCAA is “feeling the walls close in,” facing:
  1. Costly and likely unwinnable court battles.
  2. The (unlikely) hope of Congressional intervention for an antitrust exemption.
  • [32:57] Kessler: “I do not believe… this Congress… will ever do that.”
• Kessler posits that a negotiated settlement—offering real compensation and a fairer system—is the NCAA's best option.
  • [34:28] Kessler: “We would never settle for an unfair system… If we don’t [reach a settlement], we’re ready to win before a jury.”

6. Will Paying Athletes "Kill" College Sports?

• The NCAA claims that athlete compensation imperils funding for non-revenue sports.
  • [35:55] Kessler: “It’s nonsense… The money is there. So little of that is spent on non revenue sports now… It’s a ridiculous scare tactic argument.”
• He argues schools fund many non-revenue activities already; the threat is exaggerated.

7. The Coming Transformation of College Sports

• Torre and Kessler discuss changes to the “TV show” of college sports, given massive conference realignment and potential for a "super league."
  • Kessler is confident the NCAA tournament will survive (and thrive) even as the makeup of divisions might change.
  • [41:32] Kessler: “The greater the resource differences, the more exciting the tournament is… the underdog can win one basketball game! That's never going to change.”

8. Philosophical Footing and Legacy Stories

• On competition and unintended consequences:
  • [42:47] Kessler: “Antitrust lawyers believe that competition produces good results. That’s the whole philosophy…”
• Kessler refuses to pick a favorite past victory, likening his cases to grandchildren.
  • Pablo jokingly invokes the Malice at the Palace case as a candidate ([43:56], [44:31]).
• Best Quote/Memorable Moment:
  • [46:08] Kessler (on Ron Artest, a.k.a. Metta Sandiford-Artest):
    “While I'm arguing, I see that Artest is writing something down... When Artest wrote on that pad, which I have in my office to this day, he wrote down to O'Neal… He wrote, ‘Jeff is gangster.’ And that was the greatest compliment I have ever gotten from a client.”

Memorable Quotes & Timestamps

• [07:43] Dominique Foxworth (quoted by Pablo): “He loves and misses you, Jeffrey.”
• [08:37] David Stern (quoted): “Your conduct Jeffrey was routinely despicable… the single most divisive force in our negotiations.”
• [20:23] Justice Brett Kavanaugh (quoted): "Nowhere else in America can businesses get away with agreeing not to pay their workers a fair market rate… The NCAA is not above the law."
• [30:16] Kessler: “The value of just in names, images and likenesses alone has got to be worth at least 10% of the value of the broadcast… we’re looking at billions of dollars.”
• [35:55] Kessler: “It’s nonsense… the money is there.”
• [46:08] Kessler (recounting Artest): “Jeff is gangster.”

Timeline of Important Segments

| Timestamp | Segment | |-------------|----------------------------------------------------------------| | 00:00-05:14 | Opening banter; argument in sports culture | | 05:27-09:41 | Introducing Jeffrey Kessler and his reputation | | 11:06-13:43 | Kessler’s career: impact on free agency, collective bargaining | | 13:43-22:29 | The NCAA v. Alston case: Supreme Court showdown | | 24:34-28:12 | Antitrust vs. labor law; why antitrust is the NCAA’s nightmare | | 28:12-32:57 | Kessler’s current/ongoing NCAA litigation | | 35:55-38:39 | Debunking “college sports will die” arguments | | 38:39-41:32 | Future of NCAA and college sports, realignments | | 46:08-47:02 | “Jeff is gangster” story from Ron Artest |

Conclusion

Pablo closes with a clear-eyed assessment:

"The NCAA is already dead and Jeffrey Kessler is the face they're gonna see at the other end of that table at the Pearly Gates—or worse—offering them a choice to make. Because, look... the lawsuits he has already won, starting in the Supreme Court, the lawsuits that will compel the NCAA to pay damages... are going to force a reckoning."

For anyone interested in the future of college athletics, athlete rights, or the seismic legal battles shaking the foundation of sports, this conversation is essential listening—equal parts history lesson, courtroom drama, and foreshadowing of what’s to come.