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Elie Mystal

Elie Mystal is the Managing Editor of Above the Law Redline and the Editor-At-Large of Breaking Media. He’s appeared...

Joe Patrice

Joe Patrice is an Editor at Above the Law. For over a decade, he practiced as a litigator at...

Episode Notes

As we prepare to enter another football season, Elie and Joe discuss some high-profile sports law stories making the rounds and focus on the most important intellectual property question that you would have thought was too dumb to ask: can you trademark the word, “the”?


Above the Law – Thinking Like a Lawyer

Scintillating Sports Law Takes





Intro: Welcome to Thinking Like a Lawyer with your hosts Elie Mystal and Joe Patrice, talking about legal news and pop culture, all while thinking like a lawyer, here on Legal Talk Network.




Joe Patrice: Hello. Welcome to another edition of Thinking Like a Lawyer. I am Joe Patrice. I am joined as always by Elie Mystal. How are you this morning?


Elie Mystal: I am drinking seltzer. I am trying to be healthy.


Joe Patrice: Right, I mean —


Elie Mystal: Or am I trying to prepare my system for Four Loko Seltzer, which has come back baby, Four Loko is coming back, 14% alcohol Seltzer. That’s going to be a thing man.


Joe Patrice: This is where we are in 2019, we are drinking alcoholic water.


Elie Mystal: Calorie-free baby.


Joe Patrice: I mean there are other ways to be calorie-free, but yeah. And why would it be — well, it wouldn’t be calorie-free, the alcohol is still calories. Like that is still a sugar. You are just getting a mixer that’s calorie-free.


Elie Mystal: Almost calorie-free.


Joe Patrice: I mean that’s a big almost, that seems to — that’s covering a lot of territory there.


Elie Mystal: Look, I don’t think it’s going to be — people forget, people who are younger than me probably do not have as much of a firsthand knowledge of the Four Loko craze that happened basically for a year in like 2009-2010. The thing about Four Loko is that it was alcohol infused at that point caffeinated beverages, and that was really the thing about the Four Loko that like f**ed people up. It was the jolt of caffeine combined with I think at that point 12% alcohol, that was like really, really making people kind of go nuts.


Also, it was — but it didn’t taste like it, right? Like I can make rum and coke that has a lot of caffeine and a little alcohol, but people would absolutely — people would feel that. Four Loko, you weren’t feeling it, so you were just kind of up and like hyped and then in the morgue.


Joe Patrice: Right.


Elie Mystal: I don’t think the Four Loko Seltzer, which as you pointed out is really just a competitor to White Claw.


Joe Patrice: Yes, the argument is they have determined that a bunch of, at the risk of being stereotypical, white women really enjoy White Claw so they have decided to make this.


Elie Mystal: Right, because it’s seltzer water and not caffeinated seltzer water, I don’t think it’s going to have the truly disastrous societal effects of the original Four Loko.


Joe Patrice: No, I mean they — well, there was no disastrous effects to the original other than we got very excited about putting a ban together on it, because we can do that against something like this as opposed to guns.


Elie Mystal: Right.


Joe Patrice: So that’s what you are excited about, maybe you are not even angry at all today?


Elie Mystal: No, I am still angry about something.


Joe Patrice: Oh good.


Elie Mystal: I am excited about the Four Loko. I am pissed off at, I don’t even know what to call these un-American jackasses, but there is a story that went out on Twitter from Washington State. The cop pulled over — not pulled over, a cop approached a car that was pulled over on the side of the road seeing if the driver was in some kind of distress or whatever. In fact, the driver was playing Pokémon GO, he had pulled over with his eight phones; he had an eight phone almost like an old-school like CD case only for phones and he was playing Pokémon GO on all eight phones. Because he was pulled over as opposed to like playing them while he was driving, the cop had to let him go, although he encouraged him to put the phones away.


And that’s a problem for me because I want that man arrested. Having kids who play Pokémon GO and having to walk all around my goddamn neighborhood in the blazing hot August sun looking for stupid freaking Pokémon that are damaging society, damaging my children’s brains on a whole different f**ing level, because they think that like enslaving magical creatures is like an okay thing.


Joe Patrice: Right.


Elie Mystal: But put that aside, I have got to walk all across my neighborhood to find these goddamn Pokémon and this motherf**er here is playing with eight phones, taking all the gyms, taking all the free balls, taking the Riot shoes that my kid still hasn’t caught, screw this dude. This dude needs to be like, not for a long time, but like a good day in jail for this crap, I would have supported it.


Joe Patrice: Elie is angry that other people are getting balls that he is not is what I took away from that.


Elie Mystal: He is driving around, right, so like he is literally — he is driving to an area that is full of Pokémons, then stopping his car, pulling over, pulling out his eight phone case and taking it all from all the kids. He is a grown ass man.




Joe Patrice: Well, right. I mean I don’t know as though — I think your sentiment is right; I don’t know as though you have thought through some of the other aspects of it. If he is pulled over on a highway here, he is not taking it away from any kids. This is more of a fault of why are there Pokémon on a highway. This is a place where you should not and it should be — I don’t understand why this person wasn’t at least ticketed, I don’t know about jail, the over incarceration seems like a bad thing, but why this isn’t a ticket. You aren’t supposed to be pulling over willy-nilly on freeways unless you are in distress. I mean from your version of the story it sounds like that’s the kind of road we are talking about, a highway at least.


Elie Mystal: Yeah, I mean I don’t know Washington, do they have highways in Washington State or not?


Joe Patrice: Well, somewhere between their dirt roads they have got something. Yeah, no, so they have real roads. If they are —


Elie Mystal: The tweet just says Sergeant Kyle contacted a vehicle on the shoulder this evening.


Joe Patrice: Okay, I mean — but yes, you are not supposed to be pulling over unless you are in distress, because that presents all sorts of dangers that we do — we don’t want people to — or helping somebody in distress, I guess you could be doing also, because we don’t want that.


This is a problem with the game itself.


Elie Mystal: It’s also the distracted driving, right? I mean like he — they couldn’t get him for distracted driving since he was physically stopped, but one imagines that he had to at least be keeping an eye on his phones to know where to pull over.


Joe Patrice: Maybe, although they make alerts, they ding and stuff, like hey, I am not altogether sure that’s as big a problem as creating a traffic hazard by pulling over and getting out of your car while — or maybe he didn’t get out, I guess he could be close enough, but that’s a problem, and I think it’s a problem from the company’s perspective that they have Pokémon in places that are encouraging people to stop on the shoulder of highways.


Elie Mystal: Encouraging a**holes you mean?


Joe Patrice: Well, I mean I don’t really care about that.


Elie Mystal: You don’t care about the moral angle, just the legal one?


Joe Patrice: Your argument for the moral angle is that he is taking it from children, but my position is if it’s along the shoulder of a highway, I actually don’t necessarily think children should be getting that Pokémon either. Like I don’t want children to be pulling over on the side roads and getting out to try and get Pokémon. I think there is a more broad issue at play there.


But that’s a fair point and I think it’s probably something to be punished, because the point of the game is to walk and you know.


Elie Mystal: And explore your surroundings.


Joe Patrice: Yeah.


Elie Mystal: And dehydrate your f**ing father.


Joe Patrice: Yeah. Well, I mean it’s good exercise.


Elie Mystal: I don’t know why I am acting like I am the one who does most of it, like I do one, my wife does like eight of these f**ing trips.


Joe Patrice: Oh, right, I mean I assumed that that’s what that was. Okay.


So with that said, we thought we would talk about another sport other than Pokémon training. We thought we would talk a little bit about sports this week, because there have been some sports stories in the news, in the legal news that we felt like we couldn’t really cover in the pages of Above the Law appropriately, so we have decided to discuss them here.


What do you want to start with of our options?


Elie Mystal: Well, let’s start with the one that we did cover in Above the Law, because it involves the most odious university in the land.


Joe Patrice: You mean odious? Okay. Yeah, so this is where the full disclosure comes in. You root to the extent you have a rooting interest in football anymore and you don’t because you don’t watch football anymore you say.


Elie Mystal: Right.


Joe Patrice: You say.


Elie Mystal: Stanwood Colin I say.


Joe Patrice: Right. He was allowed to play in college. Anyway, the point is you root for Michigan, which has a school to its South, that is its rival, and that school, Ohio State University.


Elie Mystal: Well, did you say it right, Joe?


Joe Patrice: I believe I did say it right, but people from Ohio State will be quick to say that it’s The Ohio State University, because they are afraid there is some other entity that wants to pawn in on that vaunted name. So in this weird delusion that there is some sort of brand confusion out there, they refer to themselves as The Ohio State University.


Elie Mystal: I just want to —


Joe Patrice: Yeah, go for it.


Elie Mystal: We just need to emphasize for non-college football fans. There is an Ohio University and —


Joe Patrice: University of Ohio, yeah.


Elie Mystal: And I am sure there have been people who have been confused between the University of Ohio and Ohio State University; the does nothing to assuage that confusion.


Joe Patrice: Yes, that is true.


Elie Mystal: It’s the state that was supposed to tip you off to which one is which.




Joe Patrice: Yeah. So what we learned this week is that a patent and trademark attorney brought to the world’s attention by — through his job filing around things that had been put into the US Patent and Trademark Office that the Legal Department of The Ohio State University had filed for a trademark on the word The.


So for those of you who use the word the in your day-to-day parlance, it is in jeopardy, because Ohio State wants to use the word the on their paraphernalia and they want to have a trademark on anything that just says the word the.


Elie Mystal: Yeah, exactly, they don’t — they want to sell apparel with just the word the on it, because the is supposed to let you know that we are talking about The Ohio State University and that’s why they want the trademark on what I believe is the most common word in English language.


Joe Patrice: It is. It is in fact the most common word in the English language.


Elie Mystal: Even beyond the — there are other universities that use the quite prominently in their nickname or mascots whatever, what springs to mind is The U.


Joe Patrice: Yes.


Elie Mystal: Now, if you are not a college football fan, you might think there are quite a few Us in this country. But if you are a 00:11:09 cultural block fan, you probably know that The U refers to the University of Miami.


Joe Patrice: Yes.


Elie Mystal: You could sell a t-shirt with The U on it and put it in appropriately orange and popsicle — creamsicle colors and people would know what you were talking about.


Joe Patrice: Exactly. There is brand identification with that logo and the way in which that logo, which is a U, that means The U, and that is a thing that has developed some market awareness. What has not is a block capital word the randomly on a shirt, which is why this is a ridiculous claim, but you know.


Elie Mystal: Can we talk about the excellent trolling of Michigan?


Joe Patrice: We can, we can now turn to that. So Michigan, not to allow their rivals to make a fool of themselves without joining in, chose to send out an official tweet with a picture that looks like a logo that they are creating that has their U of M thing, but with the words OF capitalized, and then they sent this picture out with the word — with the letters TM. It was a glorious trolling of the poor people in the Ohio State University legal department.


Yeah, so this is though I am going to say a little bit more indicative of a bigger problem that’s going on, which is —


Elie Mystal: I just want to —


Joe Patrice: Yeah, before we get serious.


Elie Mystal: I just want to point out that Michigan consistently whoops Ohio State in every facet except for the actual football.


Joe Patrice: Except for the actual football part.


Elie Mystal: Their academics, their legal department, their basketball team, it’s just the actual football games that Michigan still has problems with it. So with — sorry, so I just want to put that out, but you are right, there is a larger issue here that is worth discussing.


Joe Patrice: Which is intellectual property kind of abuse and this idea that there is — it’s getting out of hand and we see it a lot with these copyright and patent trolls who just try to throw something in and then go after somebody for a largely specious infringement and try to extort people basically to pay out, because the law has reached a point where it’s so broad that they can — they feel they can get away with that.


And these sorts of folks exist and part of that world is what Ohio State wants to do is — it’s not even clear whether or not they want to make the apparel as much as they want to stop anybody from using the word the with red on it, because then that might be something that they feel they should be getting paid for.


Elie Mystal: Right, it’s not — exactly, it’s not just that Ohio State wants to make dumbass t-shirts; it’s that they want to stop anybody else from making dumbass t-shirts, and they want to stop anybody else from making dumbass memes, they want to stop anybody else from making dumbass GIFs, and they feel like this is — they are trying to abuse intellectual property law in order to accomplish this and Ohio State, The Ohio State is not nearly the only people who do this.


Part of it is Internet culture, where what you have is corporate interests realizing that there is money to be made in memeing and GIFing and the pictorial representations of what you are trying to talk about, and they want their cut is really all this is. And the law has not, advanced is not the right word, developed quickly enough to understand that these corporate interests are actually — are not making legitimate good faith claims in order to protect brand integrity. They are just trying to, as you might hear on The Godfather II, they are just trying to wet their beak into somebody else’s business.




Joe Patrice: Yeah. Well, I guess at this point we should – that’s fair, we should transition at this point to the other intellectual property sports story of the week. You want to let us in on the Phillie Phanatic.


Elie Mystal: So the Phillie Phanatic is a mascot for, and full disclosure time, I am a Mets fan, so f**k the Phillie Phanatic.


Joe Patrice: Yeah, you have actually — you are actually adverse to everybody we chose to talk about today. What a f**ing coincidence.


Elie Mystal: Phillie Phanatic is a mascot that debuted in 1979. It is some kind of furry duck like animal thing that jumps around at the Philly stadium; first Veterans Stadium and now Lincoln Financial Field — no Citizens — I forget which one they call their goddamn stadium now.


Anyway, it struts around at Philly games, kind of playing games with the fans, getting into fake fights with other players, whatever. He is a mascot. The point of the Phillie Phanatic is that whenever you think of like a modern mascot, the Phillie Phanatic is one of the first, one of the OG of what modern mascotry has become.


Okay, fine. Phillie Phanatic was made by a couple, commissioned by the Phillies to conceive of it in 1979. They were paid something like $4,000 for the trademark, which reverted to the Phillies, but the GM at the time didn’t want to pay them $1,300 for the copyright as well. So the Phillies got the copyright, but left the trade — sorry, got the trademark, but left the copyright with the couple who created the Phanatic.


Okay, fast forward to like 1985 and the Phanatic is a huge thing and then they are like, I should have probably bought that copyright. So instead of buying the copyright for $1,300, they buy the copyright for $250,000, paid to the couple, which then gives the Phillies copyright over the Phanatic “forever”.


Joe Patrice: Now, are they buying the copyright or are they buying a license to use this copyright forever?


Elie Mystal: Exactly. All right. By giving them this license forever, as people who listen to the show hopefully know, unless you zero 00:17:20, forever is not really a legal term.


Joe Patrice: It tends not to be a legal term, no.


Elie Mystal: Perpetuity is not in perpetuity. We have rules about perpetuity. Forever is not a legal word. So if I am reading a contract that says I have a license to this thing forever, I am thinking like, well, it ain’t really forever and that’s apparently what the couples thought.


It is kind of standard practice, standard procedure in copyright law that after 35 years artists have the opportunity to go back and renegotiate their copyright license. This makes a lot of sense.


If you are Michael Jackson and you make Thriller and you sell it for a song, no pun intended, 35 years later it’s f**ing Thriller, you should have an opportunity to be like all right, all right Sony, maybe I should get a little bit more money for your continued use.


That’s the other thing, right? 35 years later if the copyright is still being continually used, that’s a good indication that it has present day value that could not have really been kind of conceived of 35 years prior.


So 35 years later, here we are in 2019, and the couple which has made the Phillie Phanatic wants their copyright back, or more likely wants the Phillies to pay them at this point millions of dollars to license the copyright for another 35 years. The Phillies don’t want to pay it and so there is a chance, probably a good one, that the Phillie Phanatic will become a free agent with a couple saying that they are willing to sell the copyright to any other team, sports bar, whatever, who wants to buy the copyright — wants to license the copyright to the Phanatic.


Joe Patrice: I mean you know what the ultimate troll would be, the Mets should buy the Phanatic, not as a mascot, I mean to relief pitcher.


Elie Mystal: It’s kind of the ultimate troll of the Mets, you jackass, we have won like 19 of like the last 22 games.


Joe Patrice: You have.


Elie Mystal: We are on the come.


Joe Patrice: Yeah.


Elie Mystal: It would be quite trolling for the Mets to buy the Phanatic just as — like make it like Mr. Mets’ pet would kind of be my favorite thing. The Mets are historically cheap, so I doubt that’s going to happen.


But yeah, it is — and I started the story where I did, because it all goes back to 1979 and this miserly f**ing GM not willing to pay an artist, a creator an extra $1,300.




Joe Patrice: Yeah. The Phanatic is one of those mascots, if I recall the history correctly, it was kind of concocted after they decided that the San Diego chicken was getting super popular and they wanted some kind of a response. So they just threw some money around and said, eh, throw something together, and did not want to pay for it.


Elie Mystal: And these — the couple they found, I mean, it wasn’t like they found just some random people off the street. They were puppet-makers, they worked for the Henson, the Jim Henson Studio.


Joe Patrice: Yeah, they helped create Miss Piggy.


Elie Mystal: Right, like these were not — and I point out their qualifications also, to point out that like people who make art are talented. They’re professionals, they have skills, and this is how they make money, so when you try to like screw them out of like a couple of bucks, like not only is it again miserly in corporate like they’re going to try to find a way to f**k you, right? Like, they’re not going to forget that, so —


Joe Patrice: Yeah — no.


Elie Mystal: That GM is probably dead, but he’s certainly long gone, but the Phillies are now still paying for his — well either will pay for his mistakes or will lose their popular little furry, whatever.


Joe Patrice: Yeah.


Elie Mystal: Philadelphia’s going to be fine because Philadelphia is Gritty now.


Joe Patrice: Well that’s the thing, well, they would have to retcon Gritty’s origin because I believe part of Gritty’s origin is that he’s related to the fanatics, so.


Elie Mystal: Oh, is it?


Joe Patrice: Yeah, I mean, I think that’s in the official backs, to the canon backstory for that.


Elie Mystal: Transitioning to other ways that people aren’t paid.


Joe Patrice: Yes. So there was yet another court decision again where from the Ninth Circuit where a lot of these have been heard that has made the determination that athletes shouldn’t — college athletes don’t deserve to get paid, so.


Elie Mystal: And just for full disclosure, I am the fan of the Second Circuit, so f**k now, I am just —


Joe Patrice: Fair enough. Yeah — no, in this instance, it was a slightly different argument than some of these others. College athletes had big success in the Ninth Circuit at least the District level with the argument that selling their likenesses to places like Yay to make video games that is something that they deserve some recognition for that you can’t be selling the license and that is ultimately what drove EA from the market of making college video games because rather than throw money, then they decided to cancel one of their bigger franchises. So –


Elie Mystal: Which should be coming out this week if EA was just —


Joe Patrice: It would have been a few weeks ago, I think, but yeah.


Elie Mystal: Was just willing to pay — if they were just willing to pay the athletes a little bit of money for using their likeness, we would still have EA college football.


Joe Patrice: But the argument in this case was slightly different. This argument was — and what’s going on is a lot of people are making a lot of very different arguments on why athletes deserve to be paid in different court actions? This is an interesting different angle that a USC linebacker came up with and it failed much like USC’s defense over the last couple of years.


And what it — this argument was that there’s a minimum, like minimum wage requirements should apply and that yes, we get scholarships and all but when you divide out what we are being given for the amount of work that we are performing at the behest of the school, then we should be getting our — be getting more.


So it’s not going for the millions like some of these cases are, it was actually a much more refined argument about how they deserve some more money. Ultimately, the problem for this case was the problem that falls a lot of these arguments which in how these schools get away with a lot of this, is it’s hard to tell who you’re supposed to be suing.


Are you going after the school? Well, the school might be willing to pay you but the NCAA tells them they can’t pay people and then so you’re going after the NCAA? Well, the NCAA doesn’t really have any kind of privity of contract with these players, we’re just a non-profit rule-making organization, is that the conference that has all of the agreements as far as — that’s actually making all the money off of this stuff rather than school? Like so, it’s unclear who to go after ultimately yeah.


Elie Mystal: Here they went after the conference.


Joe Patrice: Here they went after the conference and the NCAA, and ultimately it got kicked on the — well, it’s not their fault.


Elie Mystal: Yeah, well, they said that the conference and the NCAA were not employers under the California Minimum Wage Law, which is another way that they are able to screw over athletes that they buy the classification — all the things that one would think of that are work that are the indices of working for somebody is what student-athletes have to do.


But all the indices that would indicate that a person isn’t an employer, generally universities are able to avoid — certainly the conferences in the NCAA are able to avoid when it comes to college athletics. The employer in those situations, if any, is going to be the university itself not the conference.




But as Joe just said, the University then just turns around and says like, oh, we’d love to pay them the minimum wage, unfortunately these guys, the NCAA what do you want us to do?


Joe Patrice: Yeah.


Elie Mystal: It’s a Kafka’s circle of you can’t ever find the person who was both in-charge of making the rules that you can’t get paid and in-charge of not paying you at the same time, right, that’s how they’ve kind of set up the system.


Joe Patrice: So the Showhouse, one of the recurring gags of my house was always —


Elie Mystal: It’s lupus.


Joe Patrice: It’s lupus, and it’s like it’s not lupus. The guess was that that was the cause of whatever the affliction was and it wasn’t lupus. You don’t want to say like RICO is the word in law that you don’t want to say because it’s not really RICO.


Elie Mystal: Well, you say RICO three times, 00:25:50 shows up on your Twitter feeds.


Joe Patrice: Right, exactly.


Elie Mystal: Bad news.


Joe Patrice: But when you have organizations that hide who’s actually doing things in a way to avoid prosecution that is what that’s all about.


Elie Mystal: It becomes at least RICO adjacent.


Joe Patrice: So, yeah — no, it’s unfortunate, now I mean there are benefits to college athletics that go beyond money. But listen, if you want to have and when people — what bugs me or when people try to make the argument like, oh you know, what about these other sports and their money and whatever?


I was like, sure, and those sports don’t fill, don’t have like $26 million TV contracts and that’s the part. If you want to run a sport where the people who buy tickets to the stadium is the only revenue that’s going on then maybe you don’t pay the players, but at the point that you’re selling out their TV contracts and stuff, you’re now making gratuitous money off of them.


Elie Mystal: I mean, I don’t know that I fully agree with that, I am amenable to that. I’m also amenable to just we’ll just then pay off all the athletes, pay every student-athlete a minimum wage a thing. I was on work-study when I was in school for those who weren’t like work-study is, yeah, you get loans from the government but you have — there are certain jobs that you have to do term time in order to kind of earn the stipend part of your work-study, right.


People did dorm crew, that’s cleaning up people’s dorm rooms and toilets, right. I worked in a library, like they were their various work-study jobs how in a f**k is playing football or basketball not a work-study job? Right? Like it’s —


Joe Patrice: Yeah, I mean, theoretically those kids aren’t getting loans because they’re getting full rides, but yeah, overall many of them are anyway.


Elie Mystal: Right, but exactly the point, right, like I can make myself a little bit of extra money while I’m a college student by cleaning toilets or we’re working in the library, but I can’t make myself a little bit of extra money by playing football. It makes no sense, and at some point like what has been clearing, and one of the things that this case I think shows again, is that the courts are not going to be the ones to ultimately stop it.


So it’s really going to take government intervention and whenever you talk about government intervention, you have people saying, oh, these politicians have way more important things to do than worry about what happens. Man, first of all they ain’t doing s**t right now, just at the moment, right?


Congress and the Senate are gridlock, they’re not — nothing’s actually happening right? Be like it is an important problem not just for the lower income students that these universities exploit, but you’re talking about a billion-dollar industry that is based on unpaid labor of young people that should be offensive to the consciousness of the country, and it’s going to take actual elected officials to make a change to it, which means it’s going to take actual like voters to demand that their elected officials make the change to it.


And I kind of don’t know why that is, why there isn’t that, because the people who are most — who most care about college sports are very wealthy people who are fans of universities that are going to be able to freaking pay, right?


Joe Patrice: Yeah.


Elie Mystal: The Ohio State already doesn’t have a problem, certainly won’t have a problem in the future of purchasing the top talent. If you want — if you’re a Michigan fan and you want to beat Ohio State like ever, like the only thing that you can think of to do is like maybe I can go buy some players from Florida as opposed to having to try to recruit them.


Joe Patrice: I don’t think the problem is recruiting in this instance.


Elie Mystal: I’m going to say the problem is recruiting, that’s what I’m going to say.


Joe Patrice: Okay.


Elie Mystal: Because Jim Harbaugh is a great man.


Joe Patrice: He’s certainly a great advocate of public interest and legal aid, yeah.


Elie Mystal: Of legal aid. My point is that college football and college basketball fans usually support large universities that will easily weather the storm of having to pay athletes either a little or a lot.




That’s not going to hurt the product on the field as they say. The people who are most likely to get hurt from this, from a pay-to-play kind of situation are smaller universities, whatever, at which point it’s like, well, to me it’s okay and maybe not everybody is going to agree with me; to me it’s okay if like you have one level of college sports, you could call that I don’t know Division I, that is playing for national championships and their players are getting paid lots of money, whatever, and then a second division of college sports perhaps Division II or III where their players are truly playing just for the love of the game and the blah, blah, blah, blah, blah.


Joe Patrice: Yeah. All right, make a contingent on what the schools are actually bringing in. They bring in $800 million then divide up and say, 25% of that has to go to the people who were responsible for that or whatever it is, but something.


Elie Mystal: And then pay — and then pay all — and then that’s why I was saying earlier and then pay all the players. Pay the soccer players, pay the baseball players.


Joe Patrice: I mean, I neither cool not doing that like — and you can say, 75% of it goes to supporting those other sports and if those other sports also get on TV then they get a share of that, but we can safely recognize that certain sports are getting more of the revenue without using that as a — so one of the things that Title IX point is that this is often used as a bad excuse for not paying people is, well, we can’t pay football because then we would have to cut all the women’s sports that don’t make money, and that’s not true.


You could easily say, you don’t need $30 million a year to maintain your sports program. Well, not 30 maybe you do, but the massive amounts of money that they are getting you don’t need all of that to do that and nor do the players need to be paid like NFL players to do what they are doing, but you can give the players involved some cut of that, I mean, and you do it already, you are paying these coaches $12 million.


Elie Mystal: I was going to say, we’re not even thinking pay the players as much as the coaches.


Joe Patrice: Right.


Elie Mystal: Right, we’re still letting you pay your coaches $10 million, a goddamn you. The other thing — so there’s that.


Joe Patrice: Yeah, I was just going say like this whole argument, oh, well then we wouldn’t have any money for the women’s teams, it’s like you’re already giving the coaches millions.


Elie Mystal: Right. The other bulls**t part at this point, and this is where I thought at some point the courts might stop them and they just decide to not. We can kind of debate and talk about the structure of how to pay the players and da, da, da. The fact that there are people in this country who are not allowed to make money off of their likeness, that are not allowed to make money outside of the university system entirely that other people sponsors are willing to pay for them that we just won’t allow them to get that money and still let them practice their sport, that’s just f**ed, that has no basis in law or morality.


Joe Patrice: Well, in ethics.


Elie Mystal: Right. Like if I’m a college student and I’m really good at playing the piano, and the New York Philharmonic wants to give me $10,000 to come give a concert while I am a student, not only can I go take the $10,000 through the concert, my university is going to clap for me and be very happy, and then I’m going to go back and be able to like march in the goddamn band like there’s going to be no f**ing problem, right? So the fact that a high-level college athlete who is trying to go pro can’t hire an agent, I mean, think about that. They can’t hire a lawyer —


Joe Patrice: Yeah.


Elie Mystal: — according to these rules. So, the inability for the star players to just go make the money not from the university that is just out there waiting for them that is some of the biggest bulls**t in the world.


Joe Patrice: Yeah, and I mean, I can kind of see the argument of restricting their access to agents only on the grounds that tease this out a little bit. If you had an unrestricted control over your own likeness then right now the school controls the likeness and the school took all the money, that’s what the case that’s been going on out there has raised questions about which ultimately went to EA having to stop making video games about this, and so that was a good argument.


But there’s an argument that likeness is such a loose thing, you don’t want a situation where the wealthy booster says, oh, I’m going put your face on a t-shirt and therefore gives you — gives one player millions of dollars to go to a school and get around the usual recruiting. There are reasons why that could be problematic, but that’s a reason why the school should be forced in a very fiduciary way and like in a fiduciary role they should have to act as people’s agents in good faith subject to all fiduciary kind of responsibilities and they should be able to — the school should be in a position to say, well, that’s a bulls**t deal, you can’t take it because that’s illegal — that’s against the rules generally, but EA making a video game, we will be your agent, we negotiated, it’s going be this much, here’s your cut of that.




Like, I can see that world so that you can preserve the — you don’t want a car dealership in Dallas and Fort Worth somehow making TCU — the SMU, the greatest team ever like they did back in the day and get —


Elie Mystal: Pony Express.


Joe Patrice: Right, but you can do something.


Elie Mystal: No, I see that point, but I think the way to deal with that point is to actually pay the player. So I’m full-on like you should pay the players and if you pay the players then I understand not letting them do these other things. My point is simply that if you’re not even going to pay them then both not paying them and not allowing them to make the money that they could make on their own that’s —


Joe Patrice: Oh yeah — yeah.


Elie Mystal: — that does not — we do not do that to any other person in our society really except for big-time college football and basketball athletes.


Joe Patrice: Right. And it’s ostensibly for this parity argument or fairness argument, but it just isn’t — it isn’t working.


Elie Mystal: We don’t do that to babies, we don’t do that to — if a baby can go out and make $10,000 from Gerber, we let that baby go make $10,000.


Joe Patrice: Right. Again —


Elie Mystal: We hold the money for a 18 year, but we let that baby go make $10,000.


Joe Patrice: Again, the point though is that competitor is preventing one school from having enough outspending people. So I get why there are restrictions on being able to give money, but you got to do something here.


Elie Mystal: No, if knock off Gerber wants to compete, they can go higher than those babies.


Joe Patrice: Right, but the point is that it’s not a competitive league and you aren’t charged with trying to maintain competitive equality.


Elie Mystal: I’m with you.


Joe Patrice: Yeah, yeah. But, yes, even those rules do exist I get that but you need to do something to help out, anyway.


All right, with that we’ve gone on for quite some time.


Elie Mystal: Sports?


Joe Patrice: Yeah.


Elie Mystal: It’s a long one.


Joe Patrice: Thanks everybody. We may not be hitting your box next week, because it’s Labor Day. So we won’t be necessarily in there, we might put something to get their stories going.


Elie Mystal: That somebody is going away.


Joe Patrice: Well, right, the ILTA Conference, the International Legal Technology Association’s annual conference is happening and so that’s another reason we might not be in a position to record, we’ll be there and meeting and hearing about some cool legal-tech stuff to streamline the process of the legal practice, so we’ll do that. We’ll have some stories when we get back about that.


In the meantime, you should read Above the Law, you should subscribe to this podcast, give it reviews, give it more than just stars, write something about how cool it is that way that triggers things in the algorithm to make more people listen to it.


You should follow @ElieNYC and @JosephPatrice on Twitter. You should be listening to the rest of the offerings of the Legal Talk Network and The Jabot, which is our other Above the Law podcast, and I already said, read Above the Law, but do that — also do that, and yeah, follow @atlblog too, which is the official Above the Law account.


Cool. With everything said, that’s it.


Elie Mystal: Peace.


Joe Patrice: Bye all.




Outro: If you would like more information about what you heard today, please visit You can also find us at,, iTunes, RSS, Twitter, and Facebook.


The views expressed by the participants of this program are their own and do not represent the views of, nor are they endorsed by Legal Talk Network, its officers, directors, employees, agents, representatives, shareholders, and subsidiaries. None of the content should be considered legal advice. As always, consult a lawyer.




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Episode Details
Published: August 20, 2019
Podcast: Thinking Like a Lawyer - Above the Law
Category: Legal News
Thinking Like a Lawyer - Above the Law
Thinking Like a Lawyer - Above the Law

Above the Law's Elie Mystal and Joe Patrice examine everyday topics through the prism of a legal framework.

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