You're listening to Bloomberg Law with June Grusso from Bloomberg Radio. Jurors deliberated for more than four and a half hours today in Donald Trump's historic hush money trial without coming to a decision on whether the former president falsified his company's records to hide a hush money payment to porn star Stormy Daniels and influence the twenty sixteen election. Shortly after the jurors got the case, Trump repeated his claim that the case is rigged.
By the JACIC conducting those judges. But we'll see, we'll see.
How we do. Deliberations will resume at nine thirty tomorrow morning, when the jurors will hear readbacks of testimony they've requested about a Trump Tower meeting in August of twenty fifteen that prosecutors say was central to a criminal conspiracy to boost Trump's twenty sixteen presidential campaign. Joining me is criminal defense attorney dunk and Levin, a former Manhattan prosecutor. Duncan. Let's start with the defense case and how the defense
attorney presented that case. In closing arguments, Todd Bland seemed to focus on Michael Cohen almost to the exclusion of everything else, calling him the human embodiment of reasonable doubt, the greatest liar of all time. What did you think of the defense close?
I thought it was meandering. And they are clearly trying to attack the credibility of Michael Cohne, because Michael Cohne is the most problematic part of the case for them. What Michael Cohne does is take a circumstantial case and makes it a direct case. And what I mean by that is that and the DA called Michael Cohne late in its case to really corroborate all these other pieces of evidence. At the core of the case are two main things. One is that mister Trump falsified business documents.
He caused the falsification of business documents with the intent to conceal a conspiracy between Michael Cohne, David Pecker, and mister Trump to promote his election by unlawful means. That unlawful means was hush money payments to Stormy Daniels, Karen McDougall,
and others. So the DA's office has put in a lot of evidence that shows this conspiracy, that shows that mister Cohne and mister Trump and the National Inquirer were operating together in order to promote the election by unlawful means.
They put in evidence by David Pecker, who testified that this went way beyond catch and kill, that in fact, the National Choir was really operating as an arm of the Trump campaign, that they were the eyes and ears of the campaign, that they were looking for stories to
go out and catch and kill. There was evidence that prior to twenty fifteen, when this all started happening, they never worked with a presidential candidate, they'd never done anything in coordination with a presidential candidate to catch and kill, and that they were really operating as an arm of the campaign. And where catch and kill is not illegal one to itself, when they start operating in that way as an arm of the campaign, it becomes illegal because
it's promoting an election by unlawful means. These payments to women to get their silence. The CIA then called Keith Davidson, who was Doormy Daniels attorney, who testified about why this was about the election and not about a cover up of an affair to try to keep it from millennia. This was something that was about the election. Keith Davidson testified that these deals were dead. Really he represents Doormy Daniels and was trying to get money for her, and
that this deal was dead. They were trying to kick it down the road till after the election, and once the Access Hollywood tape came out, which was devastating to the campaign. They had testimony from Hope Picks about how
terrible this was for the campaign. There was this increased feverish peace from the Trump campaign to try to pay off Stormy Daniels and Karen McDougall, who it came to their attention, we're trying to sell their stories because if right on that Heels On the Acts of Hollywood tape, these two women's stories came out, it would have been the nail in the coffin for the Trump campaign, or
at least they thought so. So. Davidson testified that there was this feverish pace to try to get this money to Stormy Daniels right after that Access Hollywood tape came out because they were trying to keep it from the electorate, and Michael Cone called his banker, Gary Farrow, who also testified that mister Cone called him with his pass on fire to try to get money through this shell company called the es Central Consultants, LLC, through to Stormy Daniels.
So they did a very good job putting together this conspiracy, and they don't really need Michael Cone's testimony for that at all.
What about for the falsification of business records.
They also don't need Michael Cone's testimony really for the falsification of the business documents, because on their face they have this was exhibit thirty five and thirty six in the trial. They have who documents, one of which is on First Republic Bank letterhead which has Alan Weisselberg's handwriting on it, showing that this payment one hundred and thirty thousand dollars to Stormy Daniels was quote unquote grossed up,
which was doubled for taxes. And what that means is that it wasn't legal services to Michael Cohen, as the defense says it was, because if it was legal services, it wouldn't be grossed up for taxes. It would just be a payment. Nobody pays double knowing that the person who's receiving the payment has to pay taxes on it.
You pay somebody and they have to pay taxes on it. Well, if it's a reimbursement, you would double it so that he would say it's income, and the books and records would show what was income, and he would pay taxes on it. And he's still wind up with the same amount of one hundred and thirty thousand dollars for reimbursement.
So then where does the prosecution need Michael Cohen, if at all?
So where does Michael Cohes fit into all of this? Well, he's a critical witness because all of that is circumstantial evidence that puts Donald Trump at the center of it. And Michael Cohen basically says on the stand he authorized it, he approved it. And that's what turns this case from a circumstantial case where there's a lot of evidence of other people saying things about, well, how is it possible that mister Trump was signing these thirty five thousand dollars checks?
And that magic number of thirty five thousand dollars comes from this grossed up figure of one hundred and thirty thousand times two, and there's some other amounts of money that are added into that. Divided by twelve for a monthly payment, it comes to thirty five thousand. There's no evidence of any retainer agreement between Michael Cohne and mister
Trump or the Trump organization. There's no invoices, and in fact, there's some evidence that came in a trial that mister Cohn actually emailed mister Weieselberg and said how much money am I supposed to be billing for every month? Again, which is not something.
A lawyer would normally say.
All of this is evidence that does not require Michael Cohne's testimony at all, except that Michael Cohne takes it from a case that's circumstantial to a case that's very strong, because he says, yeah, I was in the room with President Trump then when he was in the Oval office, and he approved all of this. He approved the repayment scheme. But the defense passd you destroy Michael Cohne. It has to destroy Michael Cohene, And that's what they tried to
do in their closing statement. And I think it was neandering and they're trying to poke holes in it, and that I don't think it was effective in actually getting to the heart of the matter, which is whether mister Trump knew of this repayment scheme and did it in order to cover up this promotion of his election by unlawful meets.
So the defense was just poking holes in the prosecution's case. And Michael Cohen, do you think it makes a difference that he didn't cover whole picks, He didn't talk about some of the important witnesses, He didn't cover what you just mentioned that piece of paper with Alan Weiselberg's ublings on it. I mean, do you think it matters that he didn't do that?
It matters tremendously because then the prosecution gets up and gave a four and a half hour closing that pointed out to the jury all of the things that the defense didn't actually address. You're right, he did not address whole picks. He did not address the tape recorded phone call that mister Cohne made with mister Trump was then
President Trump in the Oval office. He didn't address the fact that the NDA used secret names, that the checks that were sent for thirty five thousand dollars were sent from mister Trump's personal accounts. The checks were physically sent not to the White House, but secretly to Keith Schiller, who was his body man, who was not in the White House, was sent to his personal residence of off site in Washington, DC and given to the then president to sign in the Oval office. He didn't address a
lot of the context behind the call. So, for example, there's a call that was made that the defense made a big deal out of, and he did on closing the well on October twenty fourth, twenty sixteen, which is a phone call from mister Cohne, and mister Cone testified to this on direct examination. There's a phone call from mister Cone to Keith Schiller, who's mister Trump's body man, and mister Cone said, yeah, mister Schiller was with mister Trump, and that was a phone call that I made about
Stormy Daniel Well. The defense and cross examination brought out a number of text messages that they were able to find immediately preceding that phone call, in which mister Cone said to mister Schiller, there's some fourteen year old girl who's harassing me, and mister Shiller writes back, call me. Well. The defense made a huge deal about that on cross examination in the closing argument as well, saying that was a lie, that was perjury. You called him back because
you were talking about that fourteen year old girl. You were not talking about Stormy Daniels and you are lying, and they can do that, and he makes a big stink about it on his cross examination, but the prosecution stood up and did what it did on redirect examination by saying, you're not looking at the context of all
of this. You're not focusing on the fact that immediately following that phone call on October twenty fourth, twenty sixteen, there are thirty frantic messages over the messaging app called Signal between you and mister Pecker at the National Inquirer
talking about Stormy Daniels. And it does not address the fact that on the next day, on October twenty fifth, twenty sixteen, there is a text message from Dylan Howard over at the National in Choir to you to mister Cohane that says, we better get on the same page about this or we're going to look really bad. It doesn't address the fact that on the following day there was the wire payment to Stormy Daniels and the day
after that the NBA was signed. So there is context about this, and so the defense is doing what it needs to do, what it has to do, but ultimately is not particularly effective in trying to cherry pick out all of the little pieces of the case that sound bad and try to confuse the jury. That is what the defense needs to do, and you sort of can use the jury, whereas the prosecution needs to tell a narrative that starts at the beginning and goes to the
end and tells a story. And so that is really the disconnect between what the defense is trying to do and what the prosecution did in this closure.
Coming up next on the Bloomberg Lanchew, I'll continue this conversation with Duncan Levin and we'll talk about why the judge got angry during the closing arguments yesterday, as well as just what the prosecution has to prove for a conviction. Here, I'm June Grosso, and you're listening to Bloomberg. The Manhattan jury weighing Donald Trump's hush money case ended its first day of deliberations after asking to review testimony about a Trump Tower meeting that prosecutors say was central to a
criminal conspiracy to boost his twenty sixteen presidential campaign. This afternoon, the jury sent the judge a note asking for testimony about an August twenty fifteen meeting at Trump Tower. Attended by Trump, David Pecker, the publisher of The National Inquirer, and Michael Cohen, Trump's former attorney and fixer turned star. Prosecution witness. Pecker had testified that he agreed then to help Trump's campaign by praising him in print, punishing his rivals,
and buying and burying accounts of his extramarital affairs. The jury also asked to hear testimony about how Pecker's company paid former Playboy playmate Karen McDougall one hundred and fifty thousand dollars in twenty sixteen to buy and bury her account of an affair with Trump a decade earlier. It's hard to know exactly what the jurors are looking for, but the request may suggest they are working through the
chronology laid out by the prosecutors in their case. Pecker was the prosecution's first witness, and he served as a sort of narrator for prosecutors in detailing the alleged scheme. In a second note, the jurors asked to hear Judge Mershon's instructions again, but before jurors could hear the testimony or the judge's instructions again, Mershawn dismissed the panel for the day, saying deliberate rations will resume tomorrow morning at
nine point thirty. I've been talking to criminal defense attorney Duncan Levin, a former Manhattan prosecutor. One thing during closing arguments that really angered the judge was when the defense attorney Todd Blanche mentioned punishment in his closing arguments, said, you don't want to send the former president or the presidency refers to him to jail. Everyone knows who's tried a case, so who's been in court that that's not allowed.
So Blanche must have known it. Do you think it backfired on him because the instruction, the curative instruction, actually told the jury, you know, even if he's found guilty, Trump doesn't necessarily have to get prison time.
It's something that is a basic ground rule for lawyers to know not to mention certain things. They're not to argue impermissible things to the jury. This is plainly impermissible. Prosecution or defense knows that you can't do that, it's impermissible. The judge was right to fly off the handle with it. And you know, it's one of these things that is hard to reconcile as a fiction of what the jury
knows or doesn't know. I mean, we're to presume that this jury is not reading any newspapers, is not aware of the coverage of it, is not thinking about the ramifications to them of a guilty verdict, or whether they're doing something unprecedented in convicting and or some point of punishment, whether it's jail or not for the former president of the United States. These are things that you know, are
legal fictions. And then there's this other fiction of a curative instruction or striking testimony in front of the jury. It's sort of hard to stuff the genie back into the bottle. You know, they hear it, they get a curative instruction, but then they're thinking, because they're human, they're like, oh, well, we may be sending the former president to jail. So I think Blanche was absolutely out of bounds by mentioning it. He clearly knew he shouldn't. The judge was right to
fly off the handle with him. And as to what damage it did or didn't do, it's going to be devilutely impossible to help.
And then on the other side, the prosecutors said, there's no special standard for Donald Trump. Donald Trump can't shoot someone on Fifth Avenue and get away with it, which caused an objection which was sustained. But he got it in. It's the same thing, right, you can't unring the bell, right.
I mean, this is a famous line of Donald Trump that he could shoot somebody in the middle of Fifth Avenue and get away with it. And it's a statement that is not an evidence. There are rules of evidence. Prosecution is held to a higher standard. They shouldn't have
mentioned it. This is the objection was sustained. It's a minor point, I suppose, because it's not well, there's a distinction to be made between argument that is impermissible because it wrongly has the jury doing something that is beyond the scope of what it's supposed to do, like considering punishment. Their job is to consider the facts of it, and mentioning something that where there are no facts and evidence. It's sort of, in a way, a more minor transgression.
But that was an objection that was sustained, and you're right, so the jury hears it.
What are they going to do with it?
You know? For those who know the reference, they know the reference. For those that don't. They don't, but it's really more a statement of what is an evidence and what is not in evidence.
They probably have to be living in a cave for the last eight years if they didn't know that.
That's right, And that's part of the fiction of this case. There's so much, you know, they're supposed to have evidence in front of them during the trial that they can consider, and they're not supposed to consider anything outside of what
happened during the last few weeks of this trial. And so that's why the DA introduced evidence, for example, from mister Trump's books showing that he was a penny pincher and that he negotiated everything down to the paper clip, because that gets to their point that he wouldn't just be signing thirty five thousand dollars checks for Michael Cohene
without knowing what that was for. But the jurors may also be away or just from reading the newspapers that their Trump is someone who famously doesn't pay his lawyers.
That didn't come into evidence, but it might be something they know in the back of their mind that he's somebody who has, you know, never paid his lawyers or paid vendors, which has been widely reported on, and so that is something that they may be using in the back of their head, but they're not supposed to bring it into the deliberation room because it's not evidence in the trial that wasn't presented.
They didn't call.
Lawyers who got diffed on their legal invoices. So you know, I think that there's this fiction about what a jury knows and doesn't know, but they're really only supposed to consider evidence that came in that was properly admitted into evidence, and nothing else.
Do you think the prosecution did enough in marshaling the evidence and presenting its case in closing arguments?
Yeah, undoubtedly, Yes, every element of the crime was put in. I mean there's ample evidence if you credit Michael Cone,
for sure. Even without crediting Michael Cone, I think there's ample evidence that mister Trump was aware of and approved the repayment scheme to Michael Cone, that was a lie on the books and records, that this was for legal services to Michael Cone, that it was a cover up of payments to Storm mc daniels and Karen McDougall and others, That there was a conspiracy between David Pecker and the National inquirer and Michael Cone to promote mister Trump's election
by unlawful means, now lawful means for the hush money payments that violated federal campaign finance laws. Think that everything is there. The only reason he will be acquitted or a hung jury is if there's a juror too for other reasons other than the evidence, decides not to convict them. I think the evidence is beyond a reasonable doubt that he is guilty of the crimes.
And so will you explain what the jurors have to find in order to convict Trump the elements of the crime.
Sure, In the first instance, they have to find that mister Trump one caused the filing of false business records and two that he did so with the intent to conceal another crime. And the other crime is a violation of New York state election law and the statute that makes it illegal to conspire to promote an election by unlawful means. And the judge said that the jury can differ on what the unlawful means was. So they all have to agree that mister Trump caused the filing of
false business records. They all have to agree that mister Trump did so with the intent to promote his election by unlawful means, and that the jurors can disagree with what the unlawful means were, but that's it. That's what they have to find.
So is it an advantage to the prosecution that the judge instructed the jury that they don't have to be unanimous as to the unlawful means and they can each decide whether it was state election law, federal election law, or the falsification of other business records.
Well, there's a narrative out there, particularly in more conservative media that I have been seeing, where there's been outrage that the jurors don't need to be unanimous on what the underlying crime is. Just to be more specific, they do need to be unanimous on what the underlying crime is, which is a conspiracy to promote his election by unlawful means. It's another step down about it's a technical question about what the unlawful means were. So was it the payment
to Stormy Daniels, wasn't the payment to Karen McDougal. Was it in furtherance of a tax crime? But they do need to be unanimous on the bump up crime, which is this violation of New York State election law. There is certainly an advantage to the prosecution from that jury instruction, But there are other jury instructions which really did not go the prosecution's way. For example, they were arguing for an expansive definition of the word cause that mister Trump
caused the filing of false business records. The statute doesn't lay out what it means to cause somebody to file false business records, and the prosecution was arguing that should be expansively read to say that it was reasonably foreseeable from his actions that the records would be filed, and
the defense objected to it. And it looks like the judge gives the instruction on cause just being the standard definition of it, which is to make somebody do something, because there's really no evidence that mister Trump picked up the phone and said to mister Cohne, oh, you should file these false business records. It's more nebulous than that. And so there are some through instructions that went to prosecution's way, and there are some that went to defense life.
Is there anything in particular in the prosecution's case, putting aside the fact that there may be a juror who is a hidden Trump supporter with an agenda. Is there anything that might confuse the jury or hang the jury?
I mean, I think the weakest part of the prosecution's case is exactly that, which is whether Trump caused the records to be filed. And you know, I think the rest of it is extremely strong. There's tons of evidence putting mister Trump at the center of it. I think
they made a case that mister Trump was distracted. He was president involved in the internal accounting of the Trump organization and doesn't really know how these things are being recorded in the books and records and whether they're being recorded as legal payments or reimbursements, and he's just not paying attention to that kind of thing and did not cause this to happen, And that mister Cohne and mister Weifelberg, the former CFO, were working together but not with mister Trump,
to try to distance mister Trump from that as much as possible. I mean, that is their best defense.
On the whole. What do you think about the defense case?
Look, I think the defense overplayed its hand by arguing that, you know, the sexual encounter with Stormy Daniels never happened. I think they overplayed their hand by saying that this was not a reimbursement in mister Cohne, but was really for legitimate legal services. And at times the case they were arguing felt much more for public consumption than for, you know, the narrow purpose of trying to get their client.
Equitted, maybe for public consumption or for their clients' consumption.
I think that's exactly right.
Is there a conflict in the fact that they're saying that these were payments for a legal retainer, yet they're saying that on that document with the scribbling by Alan Weisselberg, they're saying that Coed, you know, stole tens of thousands of dollars from Trump. Is there any sort of disconnect there?
I don't think so. I mean, everybody knows Michael Cohene is a liar, and the fact that he stole money doesn't really change anything. It's a distraction from the key issues sul case.
Thanks so much for being on the show. That's criminal defense attorney Duncan Levin. Coming up next on the Bloomberg Lawn Show, we're going to be talking about the settlement that many say could change the face of US college Sports. I'm June Grosso and you're listening to Bloomberg. The NCAA, in the nation's five biggest conference, is announced they've agreed to pay nearly two point eight billion dollars to settle
a host of anti trust claims. It's a monumental decision that sets the stage for a groundbreaking revenue sharing model that could start steering millions of dollars directly to athletes as soon as the twenty twenty five fall semester. Joining me is Martiny Dell, co chair of the sports law practice at Golston and Stores. They've been fighting this for years. Why settle now?
So that's a great question. The answer seems to be that you have a confluence of events. You have three antitrust lawsuits that the NCAA seems to be desirous of cutting its attorneys' fees on. They have a legislative program where they're lobbying Congress at this point, and the time to lobby this session of Congress is going to expire pretty quickly. And third is they got the Power five
on board at this point. So taking advantage of all those things, I think means that the NCAA wanted to resolve these issues, which it seems at least that the NCAA wasn't willing to take the risk of going to court.
On tell us about the agreement.
Generally sure, So again, the agreement is subject to Judge Wilkins's approval and that has not yet occurred. What it will cover has a retrospective and prospective element to it. The retrospective element is to pay student athletes, principally men's basketball, women's basketball, and football athletes, two point seven to two point eight billion dollars over ten years, and that will compensate them sensibly for the moneies they lost in revenue
sharing and nil dollars from twenty sixteen to forward. That's element one. Second element is the prospective that the school subject to this agreement have agreed to revenue sharing for media revenues up to what comes out to about twenty million dollars a year in TOTO with their student athletes. Those are the principal elements. It covers current and past athletes and what the allocation format. And there are lots
of unknowns in there, but those are the principal elements. Yes, I understand them.
Let's start with the back payments, which athletes will be paid and how much?
So what seems to be the case is it will cover men's basketball, women's basketball, and football, which is obviously a male sport. That will be the two point seven to two point eight billion, which it seems will come forty one percent from the NCAA, thirty four percent from the Power five and the Football Bowl Championship, and the balance from twenty seven smaller conferences, which makes it about I guess twenty five percent.
Let's take football. Does every football player you know within the timeframe get money?
So that's not exactly worked out. It seems to cover all the players going back to twenty sixteen to the loss of dollars. How they allocate that as something else. Somebody who sat on the bench from twenty sixteen to twenty eighteen ostensibly wouldn't be entitled to quite the same share as the starting quarterback or the star center for teams should get more than somebody who wrote the bench on the men's or women's basketball team. It would cover about ten thousand student athletes.
As far as the upcoming payments, does each school decide who gets what?
So the schools that buy into the program have agreed to contribute a percentage of their media revenues going forward, and it comes out to about the numbers I've seen, about twenty two percent of the media revenues of an average Power five team. Power five are essentially five conferences, the ACC, the Big Ten, the Big twelve, the SEC, and whatever is left of the PAC twelve, which is now down to two teams, so I guess it's the
Pack two. There's a formula to be worked out. The allocation is supposed to be worked out by an expert that has not yet occurred.
Will each school do it the same way or will schools do it different ways?
So that's not entirely clear. I mean, there's a lot of lack of clarity, if you will. In the agreement. It provides strong goalposts, visible ones that people could see, such as it's approximately twenty two percent of a Power five's media revenues. So if you're an IVY League team, you're going to have to contribute both on the retrospective side your share of twenty five five percent and on the prospective side about twenty two percent of your media revenues on an annual basis.
So let's talk about Title nine how does Title nine work in here?
So it works in a number of ways which don't seem to have been thought through very clearly. So because Title nine mandates more or less gender equality, there's a real question of how the funds will be allocated. You know, right now you have women's basketball being covered, But will it be covered to the same extent, for instance, as men's basketball retrospectively and prospectively not clear because we don't
have those details yet. What will other women's teams get in terms of dollars both nil and prospectively revenue sharing? Title nine will have to factor in here because it's the law, but it's not at all clear how Title nine will factor it.
Suppose there's a school that has men's basketball, men's football, women's basketball, but also has, let's say, a great rowing team or something. Can they say, Okay, we're giving men's basketball and football and women's basketball this much, and we're going to give the rowing team this much.
So it seems that the schools can allocate the dollars to any sport they want. The question is will they allocate dollars to non revenue sports such as rowing. It's curious that one of the lawsuits that's being settled. He or one of the anti trust suits is House lawsuit. House was a swimmer that is not a revenue sport. He should be entitled to get a sum amount for nil rights for gone for the period twenty sixteen until the NCAAA changed their rules on July one, twenty twenty one.
But it's not clear again how much non revenue sports athletes will get from this.
Does this mean the NCAA's antitrust problems are over.
Hardly No, it's the short answer for a couple of reasons. First off, there is a fourth antitrust lawsuit hanging out there, the Fortnate suit, which has been in the federal District court in Colorado, and the judge there refused to consolidate that lawsuit into the House suit at this point without prejudice, so it could be revisited. But that lawsuit is going forward and that deals with our athletes from the revenue sports entitled to a share of TV rights and revenues
that go forward. Second antitrust issue that's going to come up, Well, if the schools are camping, the amount they're going to share in terms of revenue at twenty million dollars a year, we're about twenty two percent. Well, that may create another antitrust violation. Why should there be a cap on the amount that schools are willing to share. Why wouldn't the athletes in their free market be able to obtain a greater percentage than that amount. So this settles three lawsuits
that are in existence. There's one in existence that's not settled, and there may be others down the road. That leads to the NCAA's appeal to Congress to give it an antitrust exemption, and appeal which so far is pulling on deaf ears.
Is baseball the only one that has anti trust exemption?
Yes?
And people question that as well.
People question that, but the Supreme Court has made clear in the Kurt Flood case in nineteen seventy two that it will not step into this breach here. The baseball exemption has been in place now for one hundred and one years. If the baseball exemption is going to change, Supreme Court has made it clear it should come from Congress, not from the courts.
What about name, image, and likeness rights? Does that fit in with this? Is it separate?
So?
Yes? And yes? How's that for an under answer. So what this settlement, if proved, does is it recompenses athletes for lost NIL licensing for the period twenty sixteen through until July one, twenty twenty one, when there arose a free market for NIL licensing rights. So it shouldn't be a problem. But what this does on the NIL front is that the agreement would permit colleges and universities to work directly with student athletes on licensing of their NIL rights,
something which is currently forbidden under NCAA rules. So it would create another c change in NIL rights. Will you have the collectives which currently exist? Will you have colleges and universities licensing rights directly from their student athletes?
Dartmouth players recently unionized. Does that cause any conflict with this?
Probably not, but that's a great point. So this settlement does not directly address the issue of whether a student athlete is employee or not. That said, it becomes increasingly difficult for the NCAA and its member schools to make the argument that student athletes are not employees when they're getting paid a percentage of revenues for their performance. When schools will be licensing NIL rights directly from them, as they would from employees that exists there so this will help.
It seems to me cement the article that student athletes at the schools that buy into this will be treated as employees. That has a further consequence, which I want
to go back to the anti trust point. If the students are able to be designated as employees and unionized so they're covered, for instance, by the National Labor Relations Act, there will be no more anti trust issue because the National Labor Relations Act takes precedents their rights to collective bargain with respect to revenues, and the LIGHT takes precedents over the antitrust laws.
So I confess I don't know all that much about college sports, but it seems like there are so many unknowns. Why is this being hailed as such a sea change in college sports? Do you think it's a sea change?
Yes, I do, because it's the first time that colleges and universities and therefore the NCAA have gotten into the business, if you will, of paying athletes directly. That has always been a real negative for the NCAA, and its rules and regulations to date have prescribed colleges and universities paying athletes directly for services other than and scholarship at grant and aids. Now that sort of goes by the wayside. That's the one real strong takeaway from this entire model.
It will change the model for the NCAA to do business, for these colleges and universities to do business. What it is in my view, likely to engender is that you will have now a Power five grouping, which may be the equivalent of a new minor league for professional sports. And it gives all the other schools an opportunity to reassess what their mission is. Is it going to be education,
Is it going to be athletics. If it's education, how are they going to change around what they're doing with athletics so that they don't have to spend tons of money? You know, one of the things I, in my own weird way, Jo and I laugh at is the Dartmouth basketball players have sought unionization, as you mentioned, yet Dartmouth has lost three and a half to five million dollars over the last five years on basketball. That's not a
sustainable model. How can they change that to focus more on the Dartmouth educational mission rather than the athletic mission. Can't be with the athletes continuing to put in sixty to seventy hours a week on athletics, but that needs to be thought through. But I think this gives schools such as Dartmouth, such as Northwestern, such as Vanderbilt, which is the only private school in the SEC, a real opportunity to reassess what their mission is.
Thanks so much, Marty. That's Martini Delle of Gulston and Stores. And that's it for this edition of the Bloomberg Law Podcast. Remember you've can always get the latest legal news by subscribing and listening to the show on Apple Podcasts, Spotify, and at Bloomberg dot com, slash podcast, slash Law. I'm June Grosso and this is Bloomberg a