College Football’s Fractured Landscape Keeps Lawyers Busy

Many collegiate sports stadiums across the U.S. will be dark this year, but the phones lines are blinking for lawyers advising clients coping with the financial fallout from a fall without college football.

The decision by two major athletic conferences—the Big Ten and the Pac-12—to scrap their fall sports schedules due to the coronavirus pandemic came as colleges and universities turned to outside counsel to help face a wave of Covid-19 litigation.

At stake: an estimated $1.2 billion in television advertising revenue and up to $100 million a year in revenue for postponed elite football programs.

Big Ten commissioner Kevin Warren, a former Greenberg Traurig lawyer and longtime in-house legal chief and executive for the National Football League’s Minnesota Vikings, drew criticism from fans, coaches and President Donald Trump for being the first major football conference to call off play in 2020.

Warren didn’t respond to a request for comment, but others say college sports executives are consulting an array of medical experts, administrators, and lawyers.

“The majority of our Covid-related decisions have been driven by medical groups and advisers much more than outside counsel,” said Margaret Carlyle, a Pac-12 lawyer promoted Aug. 11 to replace outgoing general counsel Woodie Dixon Jr.

The three other so-called Power Five football majors—the Atlantic Coast Conference, Big 12 Conference, and Southeastern Conference—intend to have their member schools take the field this year. That could eventually pose liability questions.

“It’s hard for some to play and others not to, but I guess that’s a plaintiffs lawyer’s dream,” said Wm. David Cornwell Sr., a former Big Law partner who has long represented football players. “The records that the Pac-12 and Big Ten must’ve created to come to the conclusion that they couldn’t play are your ‘Exhibit A’ when a conference that plays has a problem with a player getting sick.”

Cornwell previously worked in-house at the NFL and has served as a consultant to the league, where he crossed paths with Warren, whom he praised. “Courage equals leadership,” Cornwell said.

The Power Five have been caught up in a wider debate roiling college sports over injuries and compensation for student athletes. All five conferences hired two Washington-based lobbying firms—Marshall & Popp and Elmendorf Ryan’s Subject Matter—starting in March. Each firm has received $20,000 per conference this year.

The engagements state the firms are “developing a national solution to preserve the unique model of American athletics, while modernizing the system to increase economic opportunity for all student-athletes on issues surrounding their name, image, and likeness.”

Big 12 Conference

Executive associate commissioner and general counsel Kelvin Smith and Jessica Presnall, the Big 12’s assistant commissioner for compliance and governance and legal counsel, are working with outside counsel at Polsinelli in advising the conference on its plans to play football this fall, a spokesman said.

A Polsinelli spokeswoman confirmed that partner Kevin Sweeney—a longtime legal adviser to the Big 12—has taken the lead counseling the Irving, Texas-based conference. Sweeney, who is based in Kansas City, Mo., was unavailable to discuss his Big 12 work.

The conference’s 2017-18 tax filing shows it paid $4.2 million to Polsinelli that fiscal year. Polsinelli has represented the Big 12 in personal injury litigation filed against it, the NCAA, and helmet maker Riddell by former college football players, according to Bloomberg Law data.

Kit Bond Strategies, a St. Louis-based consulting firm led by former Sen. Christopher “Kit” Bond (R-Mo.), has received $70,000 from the Big 12 this year to lobby on “a bill to ensure that institutions of higher education take steps to protect their college athletes from Covid-19,” as well as other matters “pertaining to the welfare of student-athletes in intercollegiate athletics.”

Big Ten Conference

The Rosemont, Ill.-based Big Ten didn’t respond to a request for comment about its legal advisers, nor did the conference’s new general counsel, Tshneka Tate, who was hired earlier this year after more than 19 years in-house at auto racing circuit Nascar Holdings Inc.

Tate reports to Warren, who took over Jan. 1 as Big Ten commissioner from fellow attorney James Delany, who had led the conference since 1989 and reportedly received a $20 million exit package. The Big Ten paid more than $5.5 million to Delany and $3.8 million to Mayer Brown in 2017-18, according to its most recent tax filing. A Mayer Brown spokeswoman declined to discuss the firm’s Big Ten work.

Bloomberg Law data shows that within the last five years Mayer Brown has handled more than 85% of the Big Ten’s U.S. litigation caseload, one that includes a bevy of antitrust and personal injury cases and one trademark dispute.

The Big Ten paid $40,000 to the Washington-based Glover Park Group in July after retaining the lobbying firm for student athlete issues.

Pac-12 Conference

Carlyle, the Pac-12’s new general counsel, said the conference has long relied upon Cooley, Covington & Burling, and Proskauer Rose to handle labor and employment, broadcast distribution, and litigation matters.

All three firms have “continued to be supportive throughout this crazy time,” said Carlyle, who has spent a decade in-house in the sports space, having worked for the National Hockey League’s San Jose Sharks, the NFL, and the Kansas City Chiefs and San Francisco 49ers.

The Pac-12’s tax filing for 2017-18 tax shows it paid $5.4 million to Proskauer. The San Francisco-based conference has also paid $140,000 this year to Washington-based government relations firm Cassidy & Associates to lobby on player economic issues and legislation.

Southeastern Conference

William King, who serves as the SEC’s top in-house lawyer, said in an email that North Carolina’s Robinson, Bradshaw & Hinson is the Birmingham, Ala.-based conference’s outside counsel.

Robinson Bradshaw, which declined to discuss its work for the SEC, received just over $1 million in legal fees from the conference in 2017-18, according to its most recent tax filing. The firm has handled nearly 60% of the SEC’s U.S. litigation work within the past five years, according to Bloomberg Law data, which shows the firm was engaged to handle antitrust and personal injury cases.

The SEC has paid $250,000 to Akin Gump Strauss Hauer & Feld this year to lobby on “legislation regarding welfare of student athletes” and player economic issues.

Atlantic Coast Conference

Representatives for the ACC didn’t respond to a request for comment about the Greensboro, N.C.-based conference’s legal advisers, nor did Benjamin Tario, its CFO and head of legal and business affairs.

The ACC paid $1.4 million in fiscal 2017-18 to North Carolina’s Smith Moore Leatherwood, which was absorbed by Fox Rothschild in 2018. A Fox Rothschild spokeswoman declined to comment about the firm’s work for the ACC.

The firm’s website states it handles a wide variety of matters for the conference, including NCAA regulations, employment law, complex litigation, corporate and transactional work, and nonprofit, tax, and real estate issues. Fox Rothschild and Holland & Knight have split the ACC’s U.S. litigation caseload—comprised of antitrust and personal injury cases—over the past five years, per Bloomberg Law data.

DLA Piper has received $160,000 from the ACC this year to lobby on “legislative and regulatory proposals affecting intercollegiate athletics.”