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Information on this site is for educational purposes only and is not intended as legal advice. If you have a legal problem, consult your institutional counsel or an attorney licensed to practice law in your state. Information and views presented in this blog are solely those of the individual contributors and not their employers.

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Is College Football 'Fixed'?*

After years of controvery regarding how a "national champion" would be named in Division I-FBS football (as it is the only NCAA-sanctioned sport, out of 88, to not have a tournament decide its champion), this year the much anticipated College Football Playoff will be implemented. This new system features two "semi final games", paring the #1 and #4 teams and the #2 and #3 teams, respectively. The winner of each matchup will square off in a national championship game.

The bowl system has undergone many tweaks and amendments. From 1946 to 1991 the top two collegiate football teams in the country played one another at the end of the season a mere nine times. (This was primarily because many of the bowls had "conference tie-ins," such as the Rose Bowl which traditionally featured the champions of the Big Ten and Pac-10 (now Pacific 12) conferences.) It started off with the Bowl Coalition in 1992, morphed into the Bowl Alliance in 1994, and then the Bowl Championship Series (or BCS as it came to be known) in 1998. The BCS matchups were decided by a complex algorithm that took into account "human polls" and strength of schedule.

Over the years, as "mid major" teams with undefeated records (e.g., Marshall University in 1999 and Boise State University in 2004) were shut out from the BCS party (and its incredibly lucrative payoffs) in favor of teams from powerhouse conferences that, per contract, were guaranteed bids because they were "automatic qualifiers" (some of which had 2 or 3 losses on the season), lawmakers began to take notice. Congress convened several hearings to discuss the legality of the BCS system. In 2011 the U.S. Department of Justice wrote to NCAA President Mark Emmert questioning why there was no football playoff.

Perhaps fearing that this could be the next antitrust challenge, the NCAA and its member institutions succumbed and approved this new playoff system (which had been rejected when suggested for many years prior). But I wonder--does this new system solve any antitrust concerns? Do the powerhouse conferences still impose a monopoly? Will it be possible for "mid major" teams to break into the top tier, like many "Cinderella teams" during March Madness have done through the democratic tournament of 64 teams? Is this the least restrictive means to achieving a national champion?

Some may argue "no." In the inaugural year of the College Football Playoff, we already have controversy. Texas Christian University, member of the Big 12 conference, was ranked #3 going into the final week. (They had only one loss--a last-minute heartbreaker to now-#5 ranked Baylor.) After a quality win against Iowa State, TCU somehow fell to #6--and out of contention for a major bowl game. Selected to play in the more prestigious New Year’s Day Orange Bowl were Mississippi State University and Georgia Tech, with two and three losses, respectively. Number 10-ranked University of Arizona, with three losses, and number 20-ranked Boise State University, member of the Mountain West Conference and with two losses for the season, were selected to play in the Fiesta Bowl.

How did this happen? Well, gone are the polls and the complex BCS algorithm. A 13-member selection committee, comprising athletic directors from the five most resourced conferences and other officials, are the sole deciders in these lucrative bowl matchups. (And as an interesting aside, Condoleeza Rice, in her capacity as former provost of Stanford University, has been invited as the sole woman on the panel.)

Instead of the CFP systeam,  I propose a 16-team playoff, comprising four brackets of four teams each. The number one and four ranked teams and number two and three ranked teams in each bracket would play a quasi-semifinal; the winners would play in a deciding contest to determine the winner of that bracket. From there, the winners of each bracket would play each other in a national semifinal. The final remaining teams would play in the national championship game.This would result in a team playing a maximum of four additional games during the postseason—adding only two more than the existing system employed in the College Football Playoff.

Some might argue that this proposed playoff system would extend the season too long and expose the student-athletes to greater risk of injury. To counter that, I would also propose that the regular season be cut short by two games, to make up for these added games. As mentioned earlier, antitrust law is designed to protect consumer interests and safeguard the quality of the product (in this case, producing the best competitive matchups). Many of the nation’s best college football teams schedule games with teams from a much lower-ranked conference or even from outside of Division I-FBS in order to pad wins. In 2013 16 games featured a top 25-ranked team defeating a team by 45 or more points, such as the blowout between Ohio State University and Florida A&M 76-0 or University of Louisville and Florida International University 72-0. In 2014, the University of Alabama, ranked number 1, played Florida Atlantic University from Conference USA, which finished with a 3-9 record for the season, and the University of Southern Mississippi, also from Conference USA, which finished the season with a 3-9 record as well.

If the system cannot be fixed this way, several groups and ahtletic commentators, such as the Drake Group, propose a Congressional antitrust exemption for college football that would, in turn, negotiate greater federal oversight of the big business of college football as well as provide due process for student-athletes--which to this day is not given, as the NCAA is a private voluntary membership organization.


*Some parts of this post are excerpts from a manuscript I have under review titled "Flag on the Play: A Review of Antistrust Challenges to the NCAA. Could the New College Football Playoff Be Next?"




Review of Ed Law Assoc conference

Last week, along with some of my fellow bloggers, I attended the 60th annual meeting of the Education Law Association. This organization is unique in that it brings together those interested in both K-12 and higher education law and policy, as well as three distinct constituencies: faculty, administrators, and attorneys.

My time there was hectic but incredibly informative. (Here is a link to the list of presentation topics.) A particular treat was attending the seminar given by Professor Michael Olivas of the University of Houston Law Center. Olivas was awarded the Steven S. Goldberg Award for Distinguished Scholarship in Education Law for his 2013 book "Suing Alma Mater." (Here is a link to my review of that book.) Olivas' text utilizes a quasi-case study approach to illustrate in-depth some of the legal challenges recently brought before the courts to combat discrimination and disparity. His concluding chapter about the role of purposive organizations is worthy of note and a must-read.

Olivas' inclusion fit seamlessly with the theme of the conference, "The Resegregation of Education in America," as did some of the other keynote speakers. At the conference I was introduced to the work of Erwin Chemerinsky, dean of the University of California, Irvine School of Law, and Dr. Raynard Sanders, host of the New Orleans Impeative broadcast. Both received standing ovations for their moving and passionate remarks, arguing that modern-day movements in education have reverted American schools to the racial separation and inequity that the Brown case sought to end nearly 60 years ago.

Chemerinsky, for whom his incredibly articulate and well researched address I cannot do justice, argued that our political AND personal divestiture in neighborhood schools has led to the very movement that has caused the general public to lose faith in this basic American institution. Sanders, who at the time of Katrina was working as a school principal, went through a thorough account of the events immediately after the devasting hurricane that led to the abolishment of the Orleans Parish School Board and COMPLETE transition to a charter school system. He outlined how federal funds requested by the state board of education were not spent in the way there were intended, and thousands of community teachers were fired. The narrative regarding the success of NOLA schools is somewhat skewed, as the previously failing schools that are now being touted as "turned around" by this new charter system are being evaluated by a new and lowered assessment model.** Both Chemerinksy and Sanders made rousing arguments that both the education and legal communities must take up figurative arms to combat the political attack on education and public sentiment that it is a defunct system.

Other sessions of note included a presenation by Mark St. Louis and Brian Mistler on the legal and psychological concepts related to conflict managment and employee negotiation. Mistler, a counselor himself, provided some useful tools for those working in education (and beyond) to use conflict as an opportunity to learn both sides of any position and to redirect organizational power to achieve harmony. Mercy Roberg took an interesting look into the potential legal issues involved when high school students dual enroll on college campuses. Jermaine Johnson provided a well-researched overview of OCR guidance regarding direct threats and suicidal students. In that same session, I enjoyed a presentation by John Dayton regarding workplace bullies.

Hopefully this BRIEF recap of the conference has piqued your interest and that you may consider joining us in Cleveland in 2015. (If you have not visited the city before, you are in for a treat. Truly a hidden gem of the Midwest!)

**Footnote: Any discussion of the racial inequity in New Orleans schools would be remiss to not mention the active role the Catholic Diocese of New Orleans played in the 1960s to thwart the desegration movement.


New Clery amendments released

The amendments to the Clery Act concerning how institutions should report and respond to sexual assault have been released. Among the most notable changes are the requirement that institutions compile statistics and adopt policies related to dating violence, stalking, and domestic violence. Also the amendments stipulate that both accuser and accused should be allowed to have an advisor (attorney or non-attorney) present at campus disciplinary hearings.

The new report also addresses some administrators' concern that the new reporting requirements will be cost prohibitive, as well as the lack of a definition of consent in the new regulations.

These rules take effect July 2015 but the U.S. Department of Education is calling on institutions to make a good faith effort to implement the provisions immediately.

In a "Dear Colleague" letter released this summer, the DOE addressed confusion over the added categories of dating violence, domestic abuse, and stalking and indicated that institutions were not obliged to modify statistics from the past two years to reflect these new categories. These changes should be reflected in statistical reporting moving forward.



California's Affirmative Consent Law Signed 

Yesterday, Governor Jerry Brown of California signed the Affirmative Consent bill.  As discussed in the Chronicle, the law "explicitly requires colleges and universities that receive state funds to define consent in students’ sexual encounters in terms of 'yes means yes' rather than the traditional 'no means no.'"


It's on us … to make a difference

You might have seen the news about the White House Initiative, It's On Us .  To learn more, go to the White House Blog.   

The campaign promotes individual and group pledges to participate in a national campaign aimed at ending sexual assaults on college campuses.  Please join the campaign by signing up and taking action on your campus.