Q&A

Is litigation running college sports?

A sports lawyer on governance breakdown and risk

(Image courtesy Aaron Hernandez)

College athletics is increasingly shaped by litigation rather than leadership, says sports law attorney Aaron Hernandez. While some legal challenges have forced long-overdue change, he warns that the resulting instability could weaken governance and, in time, erode confidence in the rule of law itself.

Here, Hernandez shares his thoughts on the legal forces driving that shift, the risks facing women’s and Olympic sports, and what lawyers should be watching as the system continues to change. Hernandez practices sports law with Church Church Hittle and Antrim in Indiana and serves as executive director of the Allan "Bud" Selig Sports Law and Business ("SLB") Program at Arizona State University.

—Interview by Emily Kelchen, edited by Bianca Prieto

You previously suggested the rule of law in college athletics is eroding. Can you elaborate on that?

I suggested that it could possibly erode. Plaintiff lawyers and judges are largely responsible for all the recent changes in the system. Some would argue that those changes are overdue, and it was time to put pressure on the system to change. However, what has been left is weakened governance and an extremely volatile shell of the former system that could easily collapse on women’s and Olympic sports.

Those same plaintiff lawyers and judges are preventing any stabilization but not offering workable solutions that save these parts of college athletics, while enriching themselves. I can easily see how people might lose confidence in the rule of law in this world when all it did was scorch the earth and do nothing to build it back up.

Should we expect something else?

I think within this context, these lawyers and judges should be mindful of the baby they are working to throw out with the bathwater. If the consequences of so much change were purely to ensure financial fairness to college football and basketball athletes and protect athletes’ well-being, then I think there would be no question that the results of recent lawsuits are justified in gutting the system. However, these changes squarely put our Olympic movement and women’s sports directly at risk because they are funded by these revenue-generating athletics programs.

What puts Olympians and women’s athletics at risk?

The way college athletics is currently structured financially (for the most part) is that there are largely two revenue-generating sports that fund the rest of the athletics department at most Division I institutions. That doesn’t make much economic sense, so I believe it is fair to think maybe all those programs should be cut and those revenue-generating athletes should be able to eat what they have killed.

However, now you are killing off the bedrock of women’s sports and Olympic sports in the US. So, while the system as it exists might not make sense and needs change, abrupt changes through lawsuits are damaging women’s sports and the Olympic movement. To me, these legal “wins” look like surgery with a spoon on a very delicate organ.

For lawyers advising powerful stakeholders, how do you even begin to argue for restraint in a culture that rewards leverage, not stewardship?

Tough question. I am not sure. How do you foster cooperation in a classic Prisoner’s Dilemma? I think it requires strong leadership, sacrifice, discomfort and a commitment to the bigger picture.

NCAA member schools had years to address these issues proactively and rethink their approach to how they wanted to govern their association. There could have been a much more strategic approach to the bylaws of the organization that looked at major threats to the collegiate model with an eye towards controlling the narrative on those issues. Stakeholders opted to stick with a risk-averse approach grounded in what they thought was bulletproof legal precedent, despite there being several observable red flags surrounding the usual way of running their association.

The precedent changed abruptly, and now they are on their heels. If I were advising a powerful stakeholder, I might zoom out and remind them of how the last 10 years have unfolded.

What’s the one early warning sign that tells you an institution is headed toward chaos?

If you are fortunate to be surrounded by highly intelligent and motivated personnel, the culture and how people feel about the place are palpable and an excellent indicator of an institution’s direction. Are people excited about going to work? How much do they complain about the organization versus celebrating it? Are these people taking ownership of the place, and are they proud of their work? How do they talk about leadership behind closed doors? The answers to these questions will reveal a lot more than you think.