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Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.

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Speaker 2: We find the defendant guilty of involuntary manslaughter, Guilty of

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Speaker 2: invo manslaughter, Guilty of involuntary manslaughter, guilty of involuntary manslaughter.

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Speaker 3: Jennifer Crumbley found guilty of four counts of involuntary manslaughter,

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Speaker 3: one for each of the students her teenage son murdered

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Speaker 3: in a shooting rampage at Oxford High School in Michigan

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Speaker 3: in twenty twenty one, a historic verdict the first parent

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Speaker 3: in the country ever directly held criminally responsible for a

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Speaker 3: school shooting carried out by her son. Prosecutors argued Crumbly

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Speaker 3: was responsible for those deaths because she and her husband

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Speaker 3: ignored her son, Ethan's mental health struggles and bought him

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Speaker 3: the handgun used in the shootings, even disregarding school counselor's

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Speaker 3: concerns about Ethan's behavior. Just hours before the attack, she

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Speaker 3: walked in high school when just the smallest, smallest of things,

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Speaker 3: couldn't have stayed, couldn't.

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Speaker 4: Have helped Hannah and Tate and Madison and Justin.

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Speaker 3: Crumbly took the stand in her own defense and testified

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Speaker 3: that she didn't see herself as a failure as a parent.

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Speaker 4: I trusted him and I felt like I had an

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Speaker 4: open door and he can come to me about anything.

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Speaker 2: I mean, I fell as a family where the three

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Speaker 2: of us were really close. Of course, I looked back

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Speaker 2: after this all happened, and I've asked myself if I

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Speaker 2: wrote do anything differently, and I wouldn't have.

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Speaker 3: That remark was repeated during the jury's deliberations, and after

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Speaker 3: eleven hours, the jury found Crumbly guilty of involuntary manslaughter

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Speaker 3: four times for the four deaths. Craig Shilling, who's seventeen

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Speaker 3: year old son Justin was killed in the shooting, said

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Speaker 3: Crumbly would not be sitting in prison if she had

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Speaker 3: done her job as a parent.

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Speaker 5: And this is your twice to have a child, and

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Speaker 5: you cannot choose to not take care of your child.

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Speaker 5: You cannot choose and not nurture your child. You cannot

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Speaker 5: choose to take your own interests over your child, especially

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Speaker 5: when it comes to mental health.

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Speaker 3: Ethan's father, James Crumbly, will also be tried for involuntary

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Speaker 3: manslaughter at a separate trial this month, and Ethan was

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Speaker 3: sentenced to life in prison in December after he pleaded

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Speaker 3: guilty to murder, terrorism and other crimes. Joining me is

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Speaker 3: Frank van Dervoort, a professor at the University of Michigan

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Speaker 3: Law School. So the first big question is were you

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Speaker 3: surprised when the jury came back with the four guilty verdicts.

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Speaker 1: I would say that I was mildly surprised. This was

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Speaker 1: a difficult case for the prosecution to make because their

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Speaker 1: burden was to show beyond a reasonable day out that

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Speaker 1: there was a direct linkage between missus Crumbly's actions or

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Speaker 1: her failures to act, and the shooting without having an

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Speaker 1: intervening occurrence or factor, And in this case, I thought

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Speaker 1: it would be a very difficult case for the prosecution

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Speaker 1: to prove beyond a reasonable doubt that standard because of

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Speaker 1: the intervention of a fifteen year old whom the state

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Speaker 1: itself tried as an adult and said he was fully

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Speaker 1: responsible for these acts. And so I am somewhat surprised

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Speaker 1: that the verdict came back the way that it did.

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Speaker 3: Tell me how the prosecution built its case, The most

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Speaker 3: important piece is of it.

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Speaker 1: Well, what they did is they took the text messages,

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Speaker 1: you know, the journal entries in the boys, you know,

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Speaker 1: handwritten journal, and combined that with the fact that a

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Speaker 1: short time before this, you know, purchased the gun only

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Speaker 1: days before this incident. And so I think the prosecutor

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Speaker 1: painted the mother as being someone who is just out

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Speaker 1: of touch with what was happening with her son, that

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Speaker 1: he was in this sort of downward mental spiral, and

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Speaker 1: that she should have been aware of that. And despite that,

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Speaker 1: the parents went out and purchased this handgun, which they

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Speaker 1: then stored in a negligent fashion so that he could

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Speaker 1: get access to it, you know, sort of unrestricted. And

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Speaker 1: so I think it's that unique set of circumstances that

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Speaker 1: the prosecution built the case on and focused on.

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Speaker 3: Yes, And one of the things that prosecutor Mark Keist

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Speaker 3: focused on during an hour long cross examination of Crumbly

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Speaker 3: were some texts from her son just months before the

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Speaker 3: shooting where he said he was seeing demons throwing bowls

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Speaker 3: and asking her to text him back. Let's listen to that.

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Speaker 6: Well, your son texted you that he was seeing dem

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Speaker 6: in bulls flying off the shelves. That was in the

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Speaker 6: spring of two. When you recall it evidence right, correct,

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Speaker 6: You don't dispute that that was on your thoughts. No,

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Speaker 6: you don't dispute that at some point you read those messages.

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Speaker 3: No, I believe it was at his sentencing that Ethan

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Speaker 3: said that his parents were not responsible for what he did.

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Speaker 3: And the defense wanted to call him to the stand,

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Speaker 3: but they weren't allowed to.

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Speaker 1: Yes, so he didn't testify because he still has a

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Speaker 1: fitth Amendment right. His case will certainly go on appeal.

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Speaker 1: Even though he pled guilty. There's going to be an

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Speaker 1: appeal in which they make arguments that certain of the evidence,

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Speaker 1: perhaps even that some of the charges should not have

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Speaker 1: been brought or were barred. And so that's why he

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Speaker 1: didn't testify.

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Speaker 3: For the defense was the brunt of its case. Jennifer

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Speaker 3: Crumbly's testimony.

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Speaker 1: My impression was is that she was trying to show

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Speaker 1: that there were were many areas where the prosecution hadn't

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Speaker 1: met its burden, that there were a number of reasons

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Speaker 1: that the jurors might have said not guilty in this case.

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Speaker 1: And so you know, that was a strategy that they pick.

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Speaker 1: You know, one second guess that strategy. But their approach

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Speaker 1: was to say, there are lots of reasons here, ladies

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Speaker 1: and gentlemen of the juries that you could find that

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Speaker 1: she's not guilty and you should find that. So that

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Speaker 1: I think was their approach.

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Speaker 3: When a defendant takes the stand, that often becomes the

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Speaker 3: focus for the jury her credibility. And here's what the

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Speaker 3: jury for person said about Crumbley's testimony on the Today

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Speaker 3: Show this morning.

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Speaker 2: At the time, I tried to take her as she

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Speaker 2: gave herself, but once we went into deliberation, it became

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Speaker 2: clear that she wasn't a super reliable witness in this case.

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Speaker 1: I think in this case, the mother had to testify.

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Speaker 1: I think that, you know, from a practical standpoint, you know,

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Speaker 1: the jury needed to hear from her. You know, she

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Speaker 1: didn't come off as the most sympathetic person apparently, but again,

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Speaker 1: you know, what should take place in a trial and

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Speaker 1: what the court will instruct the jury is to you know,

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Speaker 1: you've got to set aside your emotions. You've got to

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Speaker 1: set aside that sort of thinking and really focus on

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Speaker 1: the facts of the case and focus on the evidence

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Speaker 1: that was presented. So it is what it is. They

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Speaker 1: look at her, they judge her credibility, They you know,

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Speaker 1: decide whether they think she's genuine and telling the truth

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Speaker 1: or if she's in some way trying to mislead and

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Speaker 1: then they make their decisions.

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Speaker 3: So one thing she said that struck me. I don't

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Speaker 3: think I'm a failure as a parent, and she wouldn't

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Speaker 3: have done anything differently. And apparently that last statement was

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Speaker 3: something that the jurors kept coming back to as they deliberated.

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Speaker 1: Yeah. Right, And if a person's in that circumstance, you know,

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Speaker 1: how do you not second guess yourself? Right? How do

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Speaker 1: you not go back and say, you know what, would

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Speaker 1: I then different? Would I've pulled the trigger lock out

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Speaker 1: of that plastic bag or whatever, you know, packaging and

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Speaker 1: put it on the gun? Would I have taken steps

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Speaker 1: to secure that gun in a way that my son

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Speaker 1: couldn't get a hold of it. I think anybody would

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Speaker 1: do that, right, So, you know, that's the risk you

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Speaker 1: take when you testify in your own behalf. On the

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Speaker 1: one hand, the jury's got to hear from her, I think.

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Speaker 1: On the other hand, it's a huge risk, and you

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Speaker 1: can say something that either you know, just may it

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Speaker 1: be well presented, or it may be presented in a

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Speaker 1: way that makes you look cold and uncaring for a

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Speaker 1: person who has been through what she's been through to

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Speaker 1: not say, yeah, I really did make mistakes. There are

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Speaker 1: things that I could have and should have done, and

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Speaker 1: if I had it all to do over again, I

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Speaker 1: would do differently. We would hope for that sort of insight, right.

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Speaker 3: A lot focused on the foreseeability of Ethan's actions, and

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Speaker 3: her attorney said, how could anybody imagine that something like

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Speaker 3: this would happen, that their son would do something like that.

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Speaker 3: But the jury had to find that it was foreseeable

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Speaker 3: in order to come to its verdict.

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Speaker 1: So the jury had to find beyond a reasonable doubt

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Speaker 1: that there was a direct line from the mother's either

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Speaker 1: actions or omissions, and in action a direct line from

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Speaker 1: that to the shooting. There was a lot of focus

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Speaker 1: on foreseeability. But when the Court of appeals, the Michigan

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Speaker 1: Court of Appeals decided the earlier version of this case,

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Speaker 1: when it went up before the trial to the appellate court,

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Speaker 1: they talked a lot about what layers call proximate cause.

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Speaker 1: And so the fact that you have a fifteen year

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Speaker 1: old that inner beans in this that breaks that direct

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Speaker 1: line from her act or omission to the shootings. I

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Speaker 1: was surprised that was not more of a focus, and

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Speaker 1: there was so much focus on the sort of source

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Speaker 1: of the ability rather than this direct connection, and the

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Speaker 1: judge instructor she talked about that in her instruction, they

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Speaker 1: have to show directly that there's this linkage, and cipated

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Speaker 1: there would be more focus on that. By the defense,

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Speaker 1: I expected to see more focus on Ethan as an

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Speaker 1: independent actor, and one wonders whether that might have changed

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Speaker 1: the outcome.

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Speaker 3: So the jury four person did say that she was

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Speaker 3: swayed by the fact that Jennifer Crumbley was the last

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Speaker 3: person to handle the gun that was then used by

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Speaker 3: Ethan in the shooting.

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Speaker 2: And I think the responsibility of securing the weapon ben

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Speaker 2: falls on.

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Speaker 3: Her, So perhaps they saw it as Crumbly being the

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Speaker 3: one that could break the chain of events, but she

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Speaker 3: failed to do that.

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Speaker 1: So it's certainly one element of it. Right, you had

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Speaker 1: the last opportunity to prevent this. But if I were

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Speaker 1: the defense lawyer, I would say fair enough. But still

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Speaker 1: you have a fifteen year old boy who certainly without

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Speaker 1: the affirmative permission of his parent, took that gun out

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Speaker 1: of the house, hit it in the back pack, took

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Speaker 1: it to school, hit it from school. Officials then went

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Speaker 1: into the bathroom, changed clothing, you know, put a mask

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Speaker 1: on and that sort of stuff, put his hood up,

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Speaker 1: and then walk through the hallway shooting people. I would

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Speaker 1: expected to see the defense really focus much more on

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Speaker 1: his action and say, yeah, even if it's true that

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Speaker 1: she failed to secure the gone, this is an independent

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Speaker 1: intervening factor that breaks that causal connection between what she

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Speaker 1: did or didn't do in the murders.

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Speaker 3: Coming up next on the Bloomberg Law Show, we'll talk

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Speaker 3: about what Crumby is facing its sentencing and her husband's

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Speaker 3: upcoming trial on the same charges. I'm June Grosso and

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Speaker 3: you're listening to Bloomberg.

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Speaker 4: Can every parent really be responsible for everything your children do,

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Speaker 4: especially when it's not foreseeable and this clearly was not

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Speaker 4: foreseeable to Missus Crumbley.

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Speaker 3: Jennifer Crumbley's attorney, Shannon Smith, told jurors that convicting her

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Speaker 3: client would say a dangerous precedent for parents and that

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Speaker 3: no one could have foreseen the school shooting. But prosecutors

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Speaker 3: argued that Crumbly was responsible for her teenage son's shooting

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Speaker 3: rampage at Oxford High School in twenty twenty one that

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Speaker 3: left four fellow students dead. Prosecutors said she and her

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Speaker 3: husband had ignored her son Ethan's mental health struggles, bought

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Speaker 3: him the handgun used in the shootings and failed to

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Speaker 3: secure it, and prosecutor Marquis Cross examined Crumbley about her

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Speaker 3: son's troubling texts and journal entries.

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Speaker 6: You don't deny that your son wrote in his journal

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Speaker 6: that he asked his parents for help. You don't deny

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Speaker 6: that evidence, episode No, I don't.

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Speaker 3: After eleven hours of deliberations, the jury found Jennifer Crumbly

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Speaker 3: guilty of four counts of involuntary manslaughter. I've been talking

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Speaker 3: to Professor Frank Van Dervoort of the University of Michigan

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Speaker 3: Law School. So Crumbly and the defense try to point

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Speaker 3: in other directions, especially at the father, basically saying it's

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Speaker 3: not my fault, it's really his fault. Yeah, he bought

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Speaker 3: the gun, he didn't secure the gun. Obviously that didn't work.

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Speaker 1: You know, it may have worked been a better approach,

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Speaker 1: I think had they been tried together. But by separating

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Speaker 1: the trial, it just looks like she's trying to deny

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Speaker 1: any responsibility rather than say, as a matter of law,

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Speaker 1: forget the facts. As a matter of law, you've got

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Speaker 1: an intervening factor here that really broke that causal link

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Speaker 1: between her her failure to secure the gun and you know,

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Speaker 1: the child taking it to school that day and shooting

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Speaker 1: its classmates. It just strikes me as a line of

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Speaker 1: defense that maybe could have been rethought.

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Speaker 3: So then you think she has several issues on appeal

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Speaker 3: to raise.

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Speaker 1: I think so I anticipate there's going to be an appeal,

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Speaker 1: and I think that there will be some issues raised

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Speaker 1: that are going to be, you know, in significant issues.

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Speaker 3: Now the husband's trials, we mentioned his trial is coming up.

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Speaker 3: Do you think that in light of this verdict, he

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Speaker 3: may try to, you know, go for a plea deal.

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Speaker 1: That's always a possibility for sure. They may be looking

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Speaker 1: to try to resolve the case, you know, short of

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Speaker 1: a finding of four counts of involuntary manslaughter. You know,

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Speaker 1: maybe they'll ask for one or something. Interesting question whether

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Speaker 1: the prosecutor would you know, the prosecutor's probably feeling confident

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Speaker 1: now that they can get another conviction on all four

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Speaker 1: and may not offer that as an opportunity.

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Speaker 3: Especially since he is the one who actually purchased the gun.

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Speaker 1: Right So you know, there are some factors for him

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Speaker 1: that are at least as troublesome as things that the

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Speaker 1: mother did or didn't do. He did purchase the gun,

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Speaker 1: I mean, he knew the gun was there, and you know,

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Speaker 1: I think a couple of the things in his favor

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Speaker 1: that she had the kind of almost callous, certainly unthinking

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Speaker 1: response when the school contacted the parents about him looking

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Speaker 1: at the bullets. I think it was on the internet

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Speaker 1: and she said, you know, haha or whatever, they just

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Speaker 1: don't get caught. In hindsight, that seems incredibly callous, right,

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Speaker 1: you know, in the moment, maybe not so much so.

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Speaker 1: I think there are some things that she had, you know,

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Speaker 1: working against her, that maybe the father doesn't have working

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Speaker 1: against him. They will, no doubt they. You know, mother's

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Speaker 1: already been convicted, and she was the last one with

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Speaker 1: her hands on that Country's the last adult who had

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Speaker 1: the opportunity to prevent this, and she didn't do it.

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Speaker 3: Legal experts are talking about this case as a precedent.

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Speaker 3: Do you see this as providing sort of a template

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Speaker 3: for prosecutors to go after other parents if their children

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Speaker 3: are connected to criminal acts like shootings.

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Speaker 1: You know, I don't anticipate this is going to have

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Speaker 1: a lot of in on prosecutor's decisions. I think the

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Speaker 1: facts of this case are so you know, sort of

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Speaker 1: out of the ordinary, are so unusual. I just don't

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Speaker 1: think you're going to see a flood of cases like that.

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Speaker 1: As a legal matter, parents have always been held civilly

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Speaker 1: liable for some aspects of their children's behavior, you know,

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Speaker 1: for many, many years, and criminally there have always been

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Speaker 1: some responsibility on the part of parents in relation to

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Speaker 1: their children. What's unusual about this case is the severity

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Speaker 1: of the charges on one area. You see this sometimes

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Speaker 1: as school truancy. We went through a period of time

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Speaker 1: a few years ago where a number of parents around

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Speaker 1: the country were charged because their older children were not

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Speaker 1: getting to school or their younger children were not getting

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Speaker 1: to school right, So parents were charged criminally with not

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Speaker 1: getting their kids to school. That was the thing for

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Speaker 1: a while. So what's unusual about this is not so

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Speaker 1: much the legal doctrine as it is, you know, just

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Speaker 1: the severity of the charges. But again, the unique set

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Speaker 1: of facts in the circumstance I think is not going

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Speaker 1: to open the floodgates for those kinds of more serious charges.

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Speaker 1: I think culturally it may have more impact than you

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Speaker 1: know as as a legal precedent, because I think a

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Speaker 1: lot of parents are going to look at this and say, yeah,

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Speaker 1: you know, make sure that the guns are secured, make

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Speaker 1: sure that we know what's happening with our children, our teenagers.

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Speaker 1: And you know, that gets harder and harder for parents.

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Speaker 1: You know, the Internet and the dark Web and violent

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Speaker 1: video games and all of the rest of it. You know,

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Speaker 1: adolescents have always had secrets from their parents, right, They've

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Speaker 1: always had these kind of separate lives from their parents.

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Speaker 1: And part of what's happened in our culture is that

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Speaker 1: some of that separate life has gotten more serious, more

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Speaker 1: dangerous potentially, And so I think the message to parents is,

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Speaker 1: you know, you've got to really redouble your efforts to

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Speaker 1: know what's going on with your children, be aware of

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Speaker 1: what's happening in their lives, and to take precautions to

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Speaker 1: make sure that they don't get access to guns and

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Speaker 1: that sort of thing.

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Speaker 3: Some legal experts say that they worry that the case

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Speaker 3: will be a way for prosecutors to force plea deals

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Speaker 3: from parents, and that might cause more racial disparities in

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Speaker 3: the criminal justice system.

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Speaker 1: Again, I don't I don't see that happening so much.

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Speaker 1: I don't anticipate that there are going to be a

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Speaker 1: lot of these cases file. My guess is that only

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Speaker 1: if you have these the rarest of circumstances, where you know,

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Speaker 1: in this case, sort of the planets aligned, if you will. Right,

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Speaker 1: the kid was having serious emotional problems. The parents didn't

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Speaker 1: recognize that, didn't respond to that. But you know, there's

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Speaker 1: the salacious aspect of this where she was involved in

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Speaker 1: an affair, and that was talked about in this trial.

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Speaker 1: So you know, the prosecutor could really paint a picture

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Speaker 1: of a parent who's disengaged, who's who's not aware of

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Speaker 1: what's going on, and then purchases the gun, takes his

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Speaker 1: kid to the shooting range, and then doesn't adequately secure

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Speaker 1: that gun and protect the public from what might become

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Speaker 1: of that gun. One of the things that's interesting to

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Speaker 1: me about this is miss in the wake of this case,

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Speaker 1: has now passed a law that you know, you have

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Speaker 1: to have safe storage of weapons, which a number of

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Speaker 1: states have. So I'm not sure today if this were

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Speaker 1: to happen again in Michigan, you'd see this level of

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Speaker 1: severity of charge. You might see something much more like,

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Speaker 1: you know, a failure to properly store a gun charge

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Speaker 1: that I could see happening, right. We've seen that in

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Speaker 1: Michigan before we go back twenty years, you may recall

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Speaker 1: in Flint, Michigan, about twenty years ago, there was a

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Speaker 1: parent who had a handgun in a shoe box underneath

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Speaker 1: a bed, and a kid got hold of that gun

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Speaker 1: in six year old and took it to school and

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Speaker 1: shot a classmate in Flint. You know, so it's not

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Speaker 1: unprecedented that a parent would be charged, you know, in

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Speaker 1: similar kinds of circumstances. In that case, it was child neglect.

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Speaker 1: I believe worked for the charges that were brought, which

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Speaker 1: had lesser penalties than involuntary manslaughter charges. So I could

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Speaker 1: see prosecutors charging those kinds of crimes, right, And that

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Speaker 1: has happened I think at a time, or we saw

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Speaker 1: that in Virginia recently. I think it was Virginia where

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Speaker 1: the little kid took the gun to school and shot

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Speaker 1: the teacher. And you saw in Illinois there was a

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Speaker 1: case the fourth of July shooting down there where a

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Speaker 1: parent was charged because they assisted their child in getting

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Speaker 1: a gun, but again not charged with homicide related offenses.

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Speaker 1: But that's their offense. I could see that happening.

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Speaker 3: How much of this verdict was about the prosecution doing

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Speaker 3: a better job than the defense, having better theories and

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Speaker 3: strategies than the defense, you know, with all the resources

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Speaker 3: that the prosecution has.

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Speaker 1: I mean certainly, you know, it's almost always the case

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Speaker 1: that the state has many more resources than the defendant

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Speaker 1: in any case. I mean, that's almost universally the situation. Right.

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Speaker 1: The rarity is where there's a level playing field in

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Speaker 1: that regard, right, I mean, you know, you think about O. J. Simpson,

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Speaker 1: you think about you know, Michael Jackson, you think about

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Speaker 1: Donald Trump. Right, they have a sort of level playing

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Speaker 1: field because they have access to the normous amounts of

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Speaker 1: money and resources. But in the average case, I mean,

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Speaker 1: there's no difference. I don't know what speaks to that

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Speaker 1: beyond I think this school officials. There is certainly some

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Speaker 1: perhaps some failures on the part of the school officials, right,

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Speaker 1: And there's some frustration that governmental immunity protects the school

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Speaker 1: system and some of those officials. And you know, so

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Speaker 1: I think there is some in the community, there is

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Speaker 1: some frustration about that the schools not being helpfully responsible

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Speaker 1: you know, in situations like this, it's not at all unusual.

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Speaker 1: You know, just as the parents in this case might do,

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Speaker 1: and as she tried to do on the witness stand

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Speaker 1: point the finger and the other, you know, in another

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Speaker 1: direction to say, you know, it's not really my fault,

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Speaker 1: it's someone else's fault, or at least we share the

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Speaker 1: blank to reduce the culpability. So I'm not surprised by that.

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Speaker 3: Can the parents of the fourteenagers go after the school civilly?

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Speaker 1: There are governmental immunity issues that have to be overcome.

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Speaker 1: So it's the ratchets up the level of evidence that's

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Speaker 1: necessary for the hold the school financially responsible and civilly liable.

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Speaker 3: She faces. It's eleven years on each count. Do you

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Speaker 3: think the judge will run those concurrently?

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Speaker 1: Well, I think the statutory maximum is fifteen years for

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Speaker 1: this case, and I anticipate, yes, that they would run concurrently.

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Speaker 1: I don't know of anything in this case that suggests

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Speaker 1: that they should be consecutive sentences.

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Speaker 3: Jennifer Crumbley will be sentenced on April ninth. Her husband

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Speaker 3: will go on trial this month. Thanks so much for

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Speaker 3: joining me on the show. That's Professor Frank van Dervoort

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Speaker 3: of the University of Michigan Law School. A note. Michael Bloomberg,

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Speaker 3: the founder and majority owner of Bloomberg LP, the parent

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Speaker 3: company of Bloomberg Radio, is a donor to groups that

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Speaker 3: support gun control, including Every Town for Gun Safety. Coming

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Speaker 3: up next on the Bloomberg Lawn Show, The stage is

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Speaker 3: set for Dartmouth basketball players to unionize and become the

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Speaker 3: first ever labor union for NC DOUBLEA athletes. This is Bloomberg.

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Speaker 3: The stage is set for Dartmouth basketball players to unionize,

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Speaker 3: although it's a long road ahead, perhaps years before they

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Speaker 3: become the first ever labor union for NC DOUBLEA athletes.

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Speaker 3: On Monday, a National Labor Relations Board regional official ruled

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Speaker 3: that the basketball players are employees of the school, clearing

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Speaker 3: the way for an election. All fifteen members of the

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Speaker 3: Dartmouth men's basketball team signed a petition in September asking

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Speaker 3: to join Local five sixty of the Service Employees International Union.

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Speaker 3: Dartmouth says it will appeal the NLRB's decision. Joining me

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Speaker 3: is Alberts Solar, a partner at Skerensky Hollenbeck. How would

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Speaker 3: unionizing change the lives of of the Dartmouth basketball players.

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Speaker 7: So, you know, it's an interesting concept and this is

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Speaker 7: a fight that's been going on for many, many years.

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Speaker 7: And so what happens is that if you unionize, and

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Speaker 7: if these student athletes are deeded the employees, then what

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Speaker 7: happens is, I think it's collectively bargain and negotiate different things,

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Speaker 7: for example, the compensation of any the treatment by the coaches,

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Speaker 7: the travel schedule, how many hours they can practice. That's

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Speaker 7: the course of their deemed employees. Like any other employees,

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Speaker 7: who unionize, they'll have the power and they'll have the

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Speaker 7: ability to actually negotiate better terms for how they conduct

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Speaker 7: the quote work, in this case, the participation in the athletics,

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Speaker 7: so they have more control over their daily participation in life.

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Speaker 3: These players are not being paid, are they. I mean,

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Speaker 3: they're not getting any kind of compensation from Dartmouth at

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Speaker 3: this point.

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Speaker 7: Yes, So this goes back. Let me give a little

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Speaker 7: bit of background on that because it's a really good

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Speaker 7: and important question. So the idea of amateurism, the idea

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Speaker 7: of the NC DOUBLEA and the nateur athlete was really

435
00:25:01,440 --> 00:25:03,560
Speaker 7: a made up concept. It was a definition that was

436
00:25:03,600 --> 00:25:08,080
Speaker 7: really created when the ANCUBA was founded to really hold

437
00:25:08,160 --> 00:25:12,000
Speaker 7: student athletes to a non employee status, so that schools

438
00:25:12,040 --> 00:25:15,560
Speaker 7: then wouldn't have to pay compensation as a normal employee

439
00:25:15,560 --> 00:25:18,320
Speaker 7: would get paid. You go to work, you get your paychecks. Hear.

440
00:25:18,400 --> 00:25:20,600
Speaker 7: What they were trying to do is NCAA wanted to

441
00:25:20,640 --> 00:25:24,840
Speaker 7: control over what they called student athletes under a concept

442
00:25:24,880 --> 00:25:28,000
Speaker 7: of amateurism, which was really a made of terms. So

443
00:25:28,160 --> 00:25:32,520
Speaker 7: traditionally throughout history, student athletes have not been paid money

444
00:25:32,560 --> 00:25:36,520
Speaker 7: for their services. But the idea here was that the

445
00:25:36,600 --> 00:25:41,640
Speaker 7: universities and the educational institutions were providing in education. Now,

446
00:25:41,680 --> 00:25:46,879
Speaker 7: for the schools that offer scholarships athletic scholarships, then the

447
00:25:46,880 --> 00:25:50,000
Speaker 7: compensation really is the fact that you are receiving a

448
00:25:50,119 --> 00:25:54,760
Speaker 7: quote free education in exchange for your participation in sports. Now,

449
00:25:55,040 --> 00:25:59,560
Speaker 7: the Ivy League schools including Dartmouth actually don't offer athletic scholarships.

450
00:26:00,000 --> 00:26:03,560
Speaker 7: Reality is that the students athletes at the Iday schools

451
00:26:03,600 --> 00:26:07,040
Speaker 7: are receiving nothing more than the right to just participate

452
00:26:07,080 --> 00:26:11,240
Speaker 7: in the sports. Obviously, we can't minimize the educational aspect.

453
00:26:11,280 --> 00:26:13,760
Speaker 7: It's very important. These schools are a lot of them

454
00:26:13,760 --> 00:26:16,520
Speaker 7: are great. They're very renowned institutions, and I think that

455
00:26:16,640 --> 00:26:20,320
Speaker 7: the student athletes receive a great education. However, the problem

456
00:26:20,440 --> 00:26:24,440
Speaker 7: is that there are many schools that derive enormous amount

457
00:26:24,480 --> 00:26:29,199
Speaker 7: of revenue and money and notoriety, millions and millions of

458
00:26:29,240 --> 00:26:31,920
Speaker 7: dollars tens of millions of dollars a year from their

459
00:26:31,960 --> 00:26:36,600
Speaker 7: athletic programs, and so the problem there is that they

460
00:26:36,600 --> 00:26:39,360
Speaker 7: are benefiting really off the backs of the student athletes

461
00:26:39,359 --> 00:26:42,320
Speaker 7: who many times, to your question, don't get paid anything.

462
00:26:42,680 --> 00:26:46,359
Speaker 7: And there have been, you know, important documentaries highlighting the

463
00:26:46,359 --> 00:26:49,240
Speaker 7: fact that a lot of these athletes many times don't

464
00:26:49,240 --> 00:26:52,080
Speaker 7: even have the money to live their lives day to

465
00:26:52,160 --> 00:26:55,320
Speaker 7: day or week to week. And it reminds me of

466
00:26:55,320 --> 00:26:58,320
Speaker 7: a couple of documentaries I saw where some football players

467
00:26:58,320 --> 00:27:01,160
Speaker 7: from prominent schools had to ask for coach for money

468
00:27:01,160 --> 00:27:05,000
Speaker 7: for food. So it raises a very interesting question. But

469
00:27:05,160 --> 00:27:07,760
Speaker 7: the short answer to your question is that, no, they're

470
00:27:07,800 --> 00:27:11,480
Speaker 7: not being paid to quote play the sport. But for

471
00:27:11,520 --> 00:27:15,240
Speaker 7: the schools that offer the athletic scholarships, the ideas that

472
00:27:15,280 --> 00:27:17,879
Speaker 7: you're receiving the education in exchange for participation.

473
00:27:18,280 --> 00:27:21,359
Speaker 3: But Dartmouth is not one of those schools. And Dartmouth

474
00:27:21,440 --> 00:27:25,280
Speaker 3: even said during this four day hearing that the men's

475
00:27:25,359 --> 00:27:29,840
Speaker 3: basketball program loses money. So if the men's basketball players

476
00:27:29,840 --> 00:27:33,440
Speaker 3: are considered employees, then because of the education they're getting,

477
00:27:33,480 --> 00:27:36,040
Speaker 3: then what about the students who play in the school

478
00:27:36,080 --> 00:27:39,280
Speaker 3: band or other organizations? Are they employees too?

479
00:27:40,080 --> 00:27:42,800
Speaker 7: That's a great point, June. That's exactly what the slippery

480
00:27:42,880 --> 00:27:46,400
Speaker 7: slope here is. I personally don't believe that they're employees.

481
00:27:46,560 --> 00:27:50,400
Speaker 7: That's my personal view because if that's the case, and

482
00:27:50,480 --> 00:27:53,280
Speaker 7: in the case of the Dartmouth basketball team, you had

483
00:27:53,280 --> 00:27:55,880
Speaker 7: the school noting that they lose money, Well, if that's

484
00:27:55,880 --> 00:27:59,040
Speaker 7: the case, then if they're deemed employees, I don't know

485
00:27:59,080 --> 00:28:01,879
Speaker 7: what business would ex this that loses money. So the

486
00:28:01,960 --> 00:28:04,560
Speaker 7: result of that is going to be that Dartmouth ends

487
00:28:04,560 --> 00:28:08,479
Speaker 7: the basketball program, which they may not care about doing, because, frankly,

488
00:28:09,040 --> 00:28:11,840
Speaker 7: the idea of these schools are not sports powerhouses. It's

489
00:28:11,880 --> 00:28:14,879
Speaker 7: not like saying in Ohio State a USC where they

490
00:28:15,000 --> 00:28:17,440
Speaker 7: drive hundreds of millions of dollars from the football from

491
00:28:17,480 --> 00:28:21,000
Speaker 7: the basketball team, and so it's a very unique situation.

492
00:28:21,160 --> 00:28:24,879
Speaker 7: I think making all student athletes or deeming them employees,

493
00:28:25,440 --> 00:28:28,719
Speaker 7: I think it's dangerous because, as you noted, each sport

494
00:28:28,800 --> 00:28:32,240
Speaker 7: is different and each school is different, so there are

495
00:28:32,240 --> 00:28:34,600
Speaker 7: many student athletes that will go, for example, to an

496
00:28:34,600 --> 00:28:39,360
Speaker 7: Ohio State to play football because the Ohio State USC

497
00:28:39,600 --> 00:28:43,520
Speaker 7: the UCLAs of the world. They are football powerhouses, for example.

498
00:28:43,840 --> 00:28:46,440
Speaker 7: So a lot of the student athletes actually go, not

499
00:28:46,520 --> 00:28:49,600
Speaker 7: necessarily for the education, although it's a benefit, of course,

500
00:28:50,160 --> 00:28:51,800
Speaker 7: but they do want to go to the pros. They

501
00:28:51,800 --> 00:28:54,200
Speaker 7: do want to make it to the NFL. So if

502
00:28:54,240 --> 00:28:57,400
Speaker 7: you think about it, your point is spot on. What

503
00:28:57,520 --> 00:29:02,200
Speaker 7: this creates is a huge issue for a slippery slope

504
00:29:02,240 --> 00:29:04,800
Speaker 7: of where do we draw the line. One of the

505
00:29:04,920 --> 00:29:07,680
Speaker 7: articles I read makes a very important point. For example,

506
00:29:08,240 --> 00:29:10,600
Speaker 7: if I am a student athlete at Dartmouth or any

507
00:29:10,600 --> 00:29:14,120
Speaker 7: of the university and not student athlete, but I'm in

508
00:29:14,120 --> 00:29:17,400
Speaker 7: the music program, well, the music program will have concerts.

509
00:29:17,440 --> 00:29:20,280
Speaker 7: Those concerts might be paid, so Patriots might pay a

510
00:29:20,320 --> 00:29:23,040
Speaker 7: ticket to go hear me play. Well, if I'm a

511
00:29:23,120 --> 00:29:25,520
Speaker 7: student and I'm in the music program and the school's

512
00:29:25,560 --> 00:29:28,120
Speaker 7: making money off of it, do I unionize? Do I

513
00:29:28,200 --> 00:29:31,000
Speaker 7: have to then be myself an employee? Do I have

514
00:29:31,040 --> 00:29:33,720
Speaker 7: to get paid? So I think it's a slippery slope

515
00:29:33,760 --> 00:29:38,360
Speaker 7: because it is important to remember that universities are primarily

516
00:29:38,720 --> 00:29:43,680
Speaker 7: educational institutions and the sports traditionally, we're a form of

517
00:29:43,760 --> 00:29:47,560
Speaker 7: marketing to allow the schools to earn more prestige. And obviously,

518
00:29:47,560 --> 00:29:51,520
Speaker 7: the programs that win in sports are national headlines and

519
00:29:51,640 --> 00:29:55,280
Speaker 7: the brand of the school increases tremendously. But I don't

520
00:29:55,320 --> 00:29:59,080
Speaker 7: know necessarily that that makes any of the student athlete's employees.

521
00:30:00,120 --> 00:30:03,600
Speaker 7: The articles I read actually use the word well hear

522
00:30:03,760 --> 00:30:07,520
Speaker 7: they're participating in sport were compensation, And I'm not sure

523
00:30:07,560 --> 00:30:10,240
Speaker 7: what they meant by compensation unless they're referring to the

524
00:30:10,280 --> 00:30:14,280
Speaker 7: schools that do offer athletic scholarships, Because as far as

525
00:30:14,560 --> 00:30:17,800
Speaker 7: I'm aware of concern, student athletes are not being paid

526
00:30:18,080 --> 00:30:20,840
Speaker 7: to play the sports. So I'm not sure where they

527
00:30:21,160 --> 00:30:24,200
Speaker 7: get that notion from. But your point is well paid

528
00:30:24,280 --> 00:30:26,680
Speaker 7: and it's correct. I mean, does that mean that the

529
00:30:26,760 --> 00:30:29,040
Speaker 7: music students get paid? Does that mean that the swim

530
00:30:29,040 --> 00:30:32,440
Speaker 7: students get paid? Jude, Many of these programs don't earn

531
00:30:32,600 --> 00:30:37,440
Speaker 7: any money, and even at the more athletically recognize schools,

532
00:30:37,760 --> 00:30:40,720
Speaker 7: you know, the Ohio States against schools like that. Maybe

533
00:30:40,720 --> 00:30:44,440
Speaker 7: swim doesn't. The swim program doesn't generate any money. Whatever.

534
00:30:44,520 --> 00:30:47,760
Speaker 7: Other teams that aren't football, that aren't baseball, they aren't basketball.

535
00:30:48,040 --> 00:30:49,120
Speaker 7: Maybe they generate nothing.

536
00:30:49,360 --> 00:30:54,280
Speaker 3: Here's what the NLRV Regional director Laura Sachs wrote, quote

537
00:30:54,400 --> 00:30:57,600
Speaker 3: because Dartmouth has the right to control the work performed

538
00:30:57,600 --> 00:31:01,400
Speaker 3: by the Dartmouth men's basketball team, and the players perform

539
00:31:01,480 --> 00:31:05,120
Speaker 3: that work in exchange for compensation. I thought that the

540
00:31:05,160 --> 00:31:09,760
Speaker 3: petition for basketball players are employees within the meaning of

541
00:31:10,040 --> 00:31:14,160
Speaker 3: the National Labor Relations Act, and I know that the

542
00:31:14,440 --> 00:31:19,080
Speaker 3: players say what matters is not whether the sport turned

543
00:31:19,080 --> 00:31:21,560
Speaker 3: to profit or whether the team turned to profit. What

544
00:31:21,720 --> 00:31:25,120
Speaker 3: matters is if the program brings in revenue, and also

545
00:31:25,160 --> 00:31:28,920
Speaker 3: whether coaches have control over the players. I find this

546
00:31:29,040 --> 00:31:32,080
Speaker 3: problematic as well, because you could say that professors have

547
00:31:32,200 --> 00:31:33,200
Speaker 3: control over their.

548
00:31:33,080 --> 00:31:36,320
Speaker 7: Students, exactly the point I was going to make, So

549
00:31:36,440 --> 00:31:39,000
Speaker 7: I don't agree with that. First of all, her quotes

550
00:31:39,000 --> 00:31:41,240
Speaker 7: a little bit bizarre because, as I noted, I'm not

551
00:31:41,320 --> 00:31:45,480
Speaker 7: aware of the student athletes receiving compensation unless you're talking

552
00:31:45,520 --> 00:31:48,400
Speaker 7: about the name, image and likeness part, which I'll touch

553
00:31:48,400 --> 00:31:51,080
Speaker 7: on in a second. But the idea here is I

554
00:31:51,120 --> 00:31:54,440
Speaker 7: don't agree because I don't understand what compensation they're receiving,

555
00:31:54,520 --> 00:31:57,320
Speaker 7: and also, the athletes don't have to play the sport.

556
00:31:57,800 --> 00:32:00,959
Speaker 7: They're not being required to participate in the football program,

557
00:32:00,960 --> 00:32:05,360
Speaker 7: for example, or the basketball program. They are enrolled as students.

558
00:32:05,440 --> 00:32:08,280
Speaker 7: So for example, if the teacher and the instructor of

559
00:32:08,280 --> 00:32:11,200
Speaker 7: professor says to you, the student, you have to show

560
00:32:11,280 --> 00:32:13,560
Speaker 7: up to my class three days a week, and you

561
00:32:13,640 --> 00:32:15,800
Speaker 7: have a midterm on this date, and you have to

562
00:32:15,800 --> 00:32:18,240
Speaker 7: go to office hours on this date, well, they are

563
00:32:18,280 --> 00:32:22,080
Speaker 7: technically controlling the curriculum, and they are controlling the manner

564
00:32:22,080 --> 00:32:25,880
Speaker 7: in which the students need to fulfill their academic obligations.

565
00:32:26,160 --> 00:32:28,480
Speaker 7: Does that make the students employees? I don't believe so.

566
00:32:28,640 --> 00:32:30,800
Speaker 7: I don't think it does at all. And again with

567
00:32:30,920 --> 00:32:36,360
Speaker 7: respected students and or the student athletes, they're not receiving compensations,

568
00:32:36,360 --> 00:32:39,400
Speaker 7: so I'm not sure where the labor board gets that idea.

569
00:32:39,880 --> 00:32:43,880
Speaker 7: Do I think that they should have to be treated fairly, Absolutely,

570
00:32:43,920 --> 00:32:47,560
Speaker 7: I think everybody student athletes should be treated fairly at

571
00:32:47,600 --> 00:32:51,200
Speaker 7: a university. I'm just not seeing where the compensation comes in.

572
00:32:51,800 --> 00:32:55,480
Speaker 7: And to your point of very slippery slopes. Because the

573
00:32:55,520 --> 00:32:59,400
Speaker 7: teachers and professors are technically controlling the conduct of the students,

574
00:33:00,040 --> 00:33:01,840
Speaker 7: are they employees? I don't believe they are.

575
00:33:02,560 --> 00:33:05,080
Speaker 3: Is this the first IVY League school where this has

576
00:33:05,120 --> 00:33:07,120
Speaker 3: happened or is it the first school period?

577
00:33:07,440 --> 00:33:10,200
Speaker 7: There was another I believe Ivy League school that did

578
00:33:10,200 --> 00:33:14,360
Speaker 7: this before, but the proceedings were actually paused, and then

579
00:33:14,400 --> 00:33:16,240
Speaker 7: this is the first one that I'm aware of where

580
00:33:16,240 --> 00:33:18,800
Speaker 7: they actually had a ruling and now they're going to

581
00:33:18,800 --> 00:33:22,600
Speaker 7: go back and continue the other proceedings. But again, remember

582
00:33:22,600 --> 00:33:26,160
Speaker 7: that this is for private institutions, which raises the whole

583
00:33:26,160 --> 00:33:28,280
Speaker 7: other issue of how do as a public university deal

584
00:33:28,320 --> 00:33:32,000
Speaker 7: with this. But I think that the general challenge to

585
00:33:32,160 --> 00:33:35,560
Speaker 7: the NCAA and this idea of amateurism and whether it's

586
00:33:35,640 --> 00:33:39,280
Speaker 7: their employees and whether they can receive compensation and unionize.

587
00:33:39,520 --> 00:33:41,840
Speaker 7: This has been going on for a long long time. However,

588
00:33:41,920 --> 00:33:44,560
Speaker 7: this Dartmouth case is the first time where you had

589
00:33:44,560 --> 00:33:47,479
Speaker 7: a regional labor board actually come down and rule and

590
00:33:47,520 --> 00:33:50,840
Speaker 7: make a decision. And I think it'll be appealed because

591
00:33:50,840 --> 00:33:55,840
Speaker 7: it's too significant. It's a monumental type of decision that

592
00:33:55,920 --> 00:33:59,200
Speaker 7: I don't think was well thought out because of all

593
00:33:59,240 --> 00:34:01,120
Speaker 7: the issues that you when I have touched on where

594
00:34:01,160 --> 00:34:05,040
Speaker 7: it opens up a floodgate of different issues. Not every

595
00:34:05,120 --> 00:34:07,720
Speaker 7: school is situated the same not every student athlete wants

596
00:34:07,720 --> 00:34:09,880
Speaker 7: the same thing, Not every student athlete is out for

597
00:34:10,600 --> 00:34:13,520
Speaker 7: the same goal. Some want an education. But I do

598
00:34:13,600 --> 00:34:15,279
Speaker 7: want to just touch on one thing that I think

599
00:34:15,960 --> 00:34:18,160
Speaker 7: is relevant here is that I want to make sure

600
00:34:18,200 --> 00:34:20,800
Speaker 7: that folks don't confuse this issue with the name, image

601
00:34:20,800 --> 00:34:23,600
Speaker 7: and likeness issue, because they are related. If you remember

602
00:34:23,640 --> 00:34:27,000
Speaker 7: back in the day the universities, and this changed recently

603
00:34:27,040 --> 00:34:29,680
Speaker 7: and now the student athletes have an ability to actually

604
00:34:29,719 --> 00:34:32,399
Speaker 7: benefit and profit from their name and image. But back

605
00:34:32,440 --> 00:34:35,960
Speaker 7: in the day you would have football players and basketball

606
00:34:36,000 --> 00:34:39,399
Speaker 7: players appearing on video games sponsorships, the school would show

607
00:34:39,440 --> 00:34:41,000
Speaker 7: their image and be paid a lot of money by

608
00:34:41,080 --> 00:34:44,880
Speaker 7: national brands by advertising and content. So there it's a

609
00:34:44,960 --> 00:34:48,279
Speaker 7: totally separate topic, but it is tangentially related in that

610
00:34:48,840 --> 00:34:53,200
Speaker 7: no one has a right to exploit somebody's name, image, likeness,

611
00:34:53,200 --> 00:34:57,719
Speaker 7: and their skills to their own benefit without compensating the students.

612
00:34:57,920 --> 00:35:01,040
Speaker 7: So the idea that you can unionize and be found

613
00:35:01,320 --> 00:35:04,080
Speaker 7: to be an employee, I think does go hand in

614
00:35:04,120 --> 00:35:08,160
Speaker 7: hand with this attempt to rectify this problem. Where I'm

615
00:35:08,200 --> 00:35:11,960
Speaker 7: a student athlete, I'm very very highly regarded. The whole

616
00:35:12,040 --> 00:35:14,600
Speaker 7: nation knows my football skills and they have my name,

617
00:35:14,800 --> 00:35:17,879
Speaker 7: my image, my likeness everywhere, and I don't profit from that,

618
00:35:17,960 --> 00:35:20,520
Speaker 7: but the schools sure do. I mean, you can imagine

619
00:35:20,680 --> 00:35:24,719
Speaker 7: the amount of money these prominent athletic programs have. They

620
00:35:24,760 --> 00:35:26,799
Speaker 7: need to share that, they need to give stipens to

621
00:35:26,840 --> 00:35:29,200
Speaker 7: the students. They need to make sure that the student

622
00:35:29,239 --> 00:35:32,160
Speaker 7: athletes can actually be going day to day, pay for

623
00:35:32,239 --> 00:35:34,920
Speaker 7: their food, pay for their housing. Again, not all schools

624
00:35:34,960 --> 00:35:37,680
Speaker 7: offer athletic scholarships, so for the ones that don't to

625
00:35:38,600 --> 00:35:41,799
Speaker 7: kind of take their name, image and likeness, not compensate them,

626
00:35:41,840 --> 00:35:44,239
Speaker 7: and also not even give them a stipen. I think

627
00:35:44,360 --> 00:35:48,239
Speaker 7: that's where the notion of unfair treatment arises, which send

628
00:35:48,320 --> 00:35:51,160
Speaker 7: leads to these ideas of unionizing. I think if schools

629
00:35:51,200 --> 00:35:53,799
Speaker 7: did the right thing and treated people fairly. I'm not

630
00:35:53,840 --> 00:35:55,880
Speaker 7: saying all of them, but the ones that are taking

631
00:35:55,880 --> 00:35:57,880
Speaker 7: a little bit of advantage from the student athletes, I

632
00:35:57,920 --> 00:35:59,640
Speaker 7: think this wouldn't be that much of an issue.

633
00:36:00,080 --> 00:36:02,440
Speaker 3: More of these legal battles ahead. Thanks so much, Albert.

634
00:36:02,640 --> 00:36:06,600
Speaker 3: That's Albert Solar, a partner at Scurrency Hollandbeck. And that's

635
00:36:06,640 --> 00:36:09,600
Speaker 3: it for this edition of the Bloomberg Law Podcast. Remember

636
00:36:09,640 --> 00:36:12,319
Speaker 3: you can always get the latest legal news by subscribing

637
00:36:12,400 --> 00:36:15,840
Speaker 3: and listening to the show on Apple Podcasts, Spotify and

638
00:36:15,920 --> 00:36:19,960
Speaker 3: at Bloomberg dot com slash podcast, slash Law. I'm June

639
00:36:19,960 --> 00:36:22,080
Speaker 3: Grosso and this is Bloomberg