The Did the Supreme Court Just Kill the NCAA? Edition

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S1: The following podcast includes explicit language, in other words, might be a little blue in here, hope you can handle it.

S2: Hi, I’m Josh Levin, Slate’s national editor, and this is Hang Up Allyson for the week of June 21st of two thousand and twenty one on this week’s show, we’re going to talk about whether the NBA is to blame for all the injuries in this year’s playoffs. And we’ll look at what happened. Kevin Durant Ben Simmons Slate’s Mark Joseph Stern will also join us to assess the Supreme Court’s decision in NCAA vs. Alston. A unanimous ruling against the college sports business model and other David Epstein will be here to assess the strange case of Shelby Houlihan, the American distance runner who claimed she tested positive for a steroid because of a burrito. I’m in Washington, D.C. I’m the author of The Queen and the host of Slow Burn Season four. Also in D.C., Stefan Fatsis, author of the book Word Freak and A Few Seconds of Panic. Hello, Stefan. Hey, Josh with us from Palo Alto. Slaid Staff Writer, A Slow Burn Season three and the upcoming Season six. It’s Joel Anderson a Joel.

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S1: What’s up, man? I believe I need to check and see if Sinur cicig my favorite burrito place is put a little nandrolone in my my burritos.

S3: Now I’m going to ask for an extra dose. Yeah. All right. Yeah.

S1: I’m feeling pretty good working out, you know. That’s what it is.

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S3: McCann that pork Joel Anderson.

S2: We should make it very clear that Joel favorite burrito place. We have no evidence that there’s any anything in the burritos. I’m sure they’re amazing burritos.

S1: Can I admit that? I didn’t know what Pig 040 was. I thought that was, uh. I thought, oh, is it like chitlins or what kind of pork is that?

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S2: It is.

S1: We all know what that is awful.

S3: Ah, the entrails and internal organs of an animal used as food.

S1: I was like chitlins then.

S2: Organ meat

S1: really. You can have you can have a chitlin burrito.

S3: Well, I think it’s just that they use the internal organs and they mix it in with the with the meat.

S2: Well we’ll get into this

S3: a little bit later. We’re really not going to get into my mother.

S1: My grandmother would be very excited to know about the existence of a burrito. So supernaturalism.

S2: Before you get to the NBA, I did want to go back to something I talked about on last week’s show, which was during our conversation about Christian Eriksson’s Sonfield collapse. I mentioned the Formula One driver, Roman Grugeon, whose car caught on fire during a race. And that scene was on the F1 reality series Drive to Survive. Counter to what I said, Grosjean did not retire from driving after that race. He’s actually now racing Indy cars. So thank you to all the listeners who schooled me on that and who reminded me and all of us that it’s always a good idea to verify what you see on reality TV.

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S3: And since we’re doing corrections, I think I said that Christian Eriksen played for AC Milan. He played for Inter Milan.

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S1: I didn’t make any mistakes last episode.

S3: So good job, Joel.

S1: Thanks. So the NBA’s Final Four was finally set Sunday night after the Atlanta Hawks pulled off a Game seven upset at the top seeded Philadelphia seventy Sixers and the Eastern Conference semifinals. Thus, the last teams standing in the league are now the L.A. Clippers and Phoenix Suns in the West and Milwaukee and the Hawks in the east of those teams. The one that most recently won a title was the Bucs in nineteen seventy two, which is, you know, half a century ago. But it’s hard not to think about which teams might still be playing, if not for an unprecedented rash of injuries to all stars like Anthony Davis and Kyrie Irving. Eight NBA all stars have missed playoff games due to injury and make that nine. If you include Chris Paul, who’s currently in the league’s covid protocol and missed game one of Phoenix’s win in the West finals, LeBron James, who himself played through an ankle injury and the Lakers first round defeat, took to Twitter in a particularly self aggrandizing fashion to point out he’d warned about starting a new season so soon after the end of the previous one. They all didn’t want to listen to me about the start of the season, LeBron tweeted. Sorry, fans wish you guys were seeing all your fav guys right now. So Josh, who do you think the they is that LeBron is referring to? And do you think that he had a point,

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S2: no injured players in space to him to I think is the important thing. Also, you forgot about the injuries that Ben Simmons suffered when Joel, Embiid and Doc Rivers drove a bit

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S1: after the track season. He’s out for the next

S2: six years, lost game seven. I’m sure we’ll get to that in a minute, though. But to answer your question, the day and LeBron Street, I think definitely include league ownership and the commissioner’s office. But it should also include the players union because they agreed to this year’s condensed schedule. It didn’t read to me like LeBron was calling out the union and his BFF, Chris Paul. But the point is that the pandemic forced every industry in every industry. All to make choices between unpalatable options and what in this case, the league and the players decided as they didn’t want to lose hundreds of millions of dollars by starting the season late and playing a lot fewer games. And so I think that’s that. And there is a lot of data that suggested that injury rates were higher this year. Kevin Pelton of ESPN says there are more players out per game due to injury than during any season since he started tracking it in 2009, 2010. And there are particular injuries that fit in with this narrative of condensed schedule, soft tissue like Kawhi Leonard, for instance, with the Clippers in his knee injury like that would make sense with this. But the thing that’s nagging me a little bit Stefan is with LeBron James head, like an enormous dude fall on his ankle, which I mean, I don’t know if Solomon Hill was, like, addled because of the condensed schedule. And that’s what made him fall onto LeBron. And maybe it’s like LeBron is old and so he doesn’t recover as well as he used to. But that also doesn’t have to do with the condensed schedule and maybe it does a tiny bit. And then, you know, the other most notable injury of last round was Yoni’s just like slamming his enormous body on Kyrie Irving Zankel, which again has nothing to do with a condensed schedule or, you know, starting the season late. Like Kyrie Irving didn’t play that much this year. He was extremely well rested. And so on the one hand, I think if you do look at the numbers, there is a story here. But a lot of the reason why we think that injuries have predominated in are the big storyline is because of these like notable All-Star injury moments. And I just think it’s really hard and maybe misleading to attribute those to some larger trend.

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S3: Yeah, this is a merging of narratives, right? You’ve got the the frustration among players that they had to come back after the sort of record short layoff. I think for the Heat and the Lakers, it was seventy one games, the shortest in the history of the league.

S2: And it doesn’t seem like a coincidence that they both flamed out in the first round.

S3: I mean, maybe it is. Maybe it isn’t. I mean, the the merging of the narratives is that it’s it’s a convenient or maybe not convenient, maybe legitimate, but it is. And it is an explanation for why top players and top teams have flamed out of the playoff.

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S2: Aren’t going to say excuse, but you cited to be kind at the last.

S3: You noticed that, didn’t you? Yes. Yes. I mean, the reality is that players get injured all the time. All stars get injured on all the time. Kevin Durant got injured during the playoffs a couple of years ago. Klay Thompson didn’t play in playoffs because he got injured. This is not unusual. What is unusual is that LeBron James lost in the first round and it was really hard for him and he got hurt. And yes, other players have gotten injured as well. I mean, it’s hard to know for certain when you look at each of these individual cases, whether they are related to the pandemic and the condensed schedule or whether, as you pointed out, Josh there’s a cruel fate and playing sports, people get hurt. These are not mutually exclusive occurrences. Right. The fact that that we’re not seeing some familiar names and that certainly that’s contributed to teams losing in the playoffs should not also overlook the fact that hey Giannis didn’t get hurt He’s still playing Trae Young still playing. There’s still some really damn good players that are still playing well.

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S1: I would like to push back just a little bit because if we read Tom Bristow’s piece from about a month ago about injury, NBA injuries, he points out in the piece that falling down is a sign that players are at their peak. Right. And the way that LeBron got hurt falling down the way that Giannis stepped on Kyrie’s ankle. And you know the sort of stuff that is happening. Yes, it does seem sort of random, but it also is a piece of players being tired potentially.

S3: Yeah, it’s great, right.

S1: Particularly in fatigue. So like I mean I know it’s one to say oh these do seem like random occurrences and it’s just very, you know, a coincidence, some sort of ways that these guys got hurt in a way that they got hurt. But falling down a lot. I mean, look, we look at Anthony Davis, another guy who falls down a lot. I mean, a lot of times that’s because people are not working at their optimal selves. And so I don’t you know, I think it can be both things. Right. I think that, like, LeBron is finding the convenient narrative. But there was also some real truth in this, that some of these injuries that we’re seeing, even if we think that they’re random, they’re not they’re not really. And I think if even if we just look at the quality of the basketball man, these guys are gassed, like the way people have been falling down in game seven. I mean, if you watch the end of the Nets Bucs game, I mean, those dudes were gassed like they were barely able to get up and down the floor. Over time, they scored six total points, you know, so I mean, I do think that, like, the way that the NBA has set this season up has made it so that the players are more likely to get injured and that this is like obviously an unprecedented run of injuries. It doesn’t have to mean everything. It doesn’t mean that, like the NBA did anything wrong, that there that they could have chosen an option that wouldn’t have made players get hurt. But I do think that, like, we should think about the fact that, yeah, no, I mean, it’s possible that some of those injuries we’re talking about, it’s not they’re not random. Like I mean, this is stuff that happens at the end of a very long season in a particularly difficult season.

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S2: I mean, those are all really good, good points. And I think maybe the thing we can all agree on is that this is not possible to know on an individual level what caused an injury. And so I think the two points coming out of that are, you know, maybe the most important thing about this going forward is what the players think and what they’re saying, which is why I think it’s smart for you to lead with LeBron James this tweet, because this is the guy who invented and brought on the player empowerment era. And what did that what did the player empowerment era mean? It meant that superstars and I guess only superstars had the ability to decide where they play and who they play with. And so maybe the next phase is that superstars get to decide when they play, too. We’ve already started to see that. I mean, I referenced Kyrie Irving already, but there’s, you know, the load management stuff which the NBA has pushed back on and saying stars need to play more and nationally televised games and just different rules about when and how you can set out due to rest. But I think with what we’ve seen this year and what the players clearly think is what’s happening, I think there’s going to be a lot more both kind of public statements and in terms of actions with players just saying, you know, I know my body. I know what it takes to be in optimal condition. And so I’m just going to play when I think and when my team thinks. It’s appropriate for me to play, and that has nothing to do with what is on the NBA schedule, right.

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S3: And that’s a culmination of years of discussion and research and data about the load on elite athletes and, you know, from, you know, pounding to sleep, to travel, to nutrition. We know so much more about how athletes bodies are affected by being elite athletes than we ever did. And that is a reality. So the tension is what the tension will always be. Will league owners and management team owners and management accede to the notion that we should be playing less because fewer games means less revenue, but less revenue also means less to share with the players? This is a tangled, tangled, not that you know, I think the players are going to, as you say, Josh. I mean, this is where it’s really helpful. Are the players willing to to take a stand on, you know, in favor of their own health that might have a revenue effect on their earnings? Or will ownership just use it as an excuse to try to extract more concessions out of players the next time they collectively bargain?

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S1: You know, it’s interesting, too, because I don’t know, like what is the most pressing issue here? Right. Like anybody that follows the NBA in NBA Twitter, you know that there’s a narrative that, oh, the players don’t care about the regular season. There’s so many games they will sit out. Some games are not competitive and in fact, that the regular season is almost totally divorced from the postseason in terms of like strategy and everything else. Like an example, being the defensive player of the year, Rudy Gobert being played off the floor in the playoffs every year for the last four or five years because he can’t defend the pick and roll. Right.

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S2: Well he’s like the offenses for the bucks and the Sixers being so great and the regular season and then just looking horrible in the playoffs.

S1: Yeah. Yeah.

S2: At times.

S1: Right. No right. And it’s just like, I mean we know that the competitive intensity of the regular season is totally different from the postseason. So it’s like, do we know like if the NBA decided to cut back to like a sixty five game season or sixty game season, if maybe the players have more energy in their more invested and you might see more of a competitive Brenda ball and maybe that might increase interest, like we just don’t know. Right. But I do think that long term, protecting your players, protecting your stars is probably the better play for the NBA. Like wouldn’t you’d rather have an extra a couple of years of LeBron than, like, burning through him early or. You know, I just think, you know, I think about like going back the day because people talk about how much the players played, you know, twenty, thirty years ago. And I realize, like, Isaiah Thomas career was basically done when he’s like thirty one years old and like, you don’t, you know, like, nobody wants that. Like, we want to see these great players play longer. And I think that that’s what the NBA should be investing in, like not the seventy fourth game of the season between the Bulls and the Timberwolves. Right. Like maybe, maybe like having a broader, more long term view of the health of their players and the health of their game is the way to go about this. But I know that that’s tough because why would you leave money on the table? Like, you know, these networks are willing to pay for so many games. And if you change that, then, you know, maybe that could throw things off. I don’t know.

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S3: Adam Silver seems to be willing to entertain these kinds of questions. I mean, there has been conversation about shortening the regular season. I mean, if any league is is is going to sort of look at this stuff in a sort of holistic way. It’s probably the NBA.

S2: Let’s talk about Nets Bucks and Hawks Sixers, because some of these issues were in play in both series. And, you know, Joel, you mentioned how gassed everybody was in otti of the Bucs game. I mean, if you look at it from the Nets side in particular, I think both teams actually that condition of exhaustion was imposed on the teams by their coaches. Right. There were many I don’t know how how good they I mean, they’re they’re NBA players, so they’re of reasonable quality. But it wasn’t like there weren’t other like men in uniform on the benches who could have come in to the game at certain points, can ask

S1: a question, does DeAndre Jordan still play for the Nets?

S2: What about being played off the floor, don’t you know if you were you were talking about before this this issue around injuries and stuff that’s particular to the season runs into the fact that the playoffs are different, that teams and players are willing to be on a knife’s edge in the playoffs, that Kevin Durant coming off of an Achilles. I mean, it wasn’t like super recent at this point, but he’s playing every minute of these games and doing it like happily. And I think as fans and people that are concerned about player’s health, we’re not worried about the fact that he’s playing. It’s like what he it’s the reason that he is who he is, is that he plays every minute of Game seven and puts on one of the most amazing performances that I think any of us have ever seen. And that performance back to like the whole player empowerment super team thing, not too heavy, but it’s like, you know, you can have a lot of people around. You can have people that care about you. You can have people that love you. But, you know, sometimes you’re just on your own Joel and Stefan. Sometimes you just got to do it, do it by yourself. And, you know, Durant out there with, like, Harden on one leg with no Kyrie. It is just fundamentally true for all that we like want these guys to be, you know, to have the ability to play where they want to play and and we think that’s all well and good, but it’s just more fun to see like Kevin Durant do that and like be has like ultimate offensive weapon self. And it’s there’s never been anybody like that guy. I mean, and and what he was able to do in that game was amazing.

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S3: But is the asteroid.

S1: Yeah. Let’s set up Sam Anderson. I mean, I guess like I do think that there’s something to be said for watching Kevin Durant push himself to like his edge. Right. To play in such a way that it’s like, oh, like he could not possibly do any more in terms of maximizing his performance and endurance or whatever else. But I also just think, man, that’s that’s I don’t you know, I don’t quite enjoyed as much as I do seeing like, guys being fresh and play like, great at the end of the game. Like, I know that I’m probably sitting here.

S2: It’s fun, too.

S1: Yeah, right. I probably splitting hairs here and that doesn’t mean I want to see more Bruce Brown and Joe Harris, but it does mean that like I, I feel like you remember I guess it was like six finals ago when Kevin Love and Kyrie Irving were out and LeBron had to basically play every minute and do every damn thing. And I was just like, yeah, it’s cool to see LeBron like have to like go hero mode. But I also was like, man, it wouldn’t just be better though if everybody was healthy and we could just see the best possible basketball where everybody’s getting a little bit of a break, you know, maybe take four minutes off of the game.

S2: You just like when people get a break. I can I can relate to that stuff.

S3: I mean, there was this there was this expectation that we were going to see Durant Harden and Irving together. I mean, they hadn’t played together, but for like, what? Forty three seconds or something during the regular season?

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S2: I think that’s an exaggeration.

S3: But but yeah. But the notion was that we were going to see after this crazy season in which there were injuries and Kyrie took us, took a breather, you know, took a little sabbatical and everyone started to heal. Durant was out for a while that we would get. So there was this disappointment that we’re not seeing the fulfillment of the greatness. And then we got to see the second part of the narrative, which was like Kevin Durant being all three of them at once. And that was amazing. And there is something so remarkable about watching peak athletes perform at their peak in hero mode. You know, we’ll never forget what Kevin Durant did. And I can’t think of another instance where, you know, the dude went, oh, four, six and overtime. Nobody, including himself, didn’t seem upset or going to blame him for anything because we just saw one of the most remarkable performances that we’re ever going to see on a basketball. I want to interrupt. That was that was pretty I mean, I thought that was pretty striking to just sort of the way Durant, like, handled the end of the game reminded me that for the athletes themselves, there isn’t this, like, overarching disappointment in losing. It’s the acceptance. And like seeing him on the court at the end of that game was like, man, I did everything I could and congrats to you.

S1: I think Stefan is filibustering because he does want to talk about what the Sixers did yesterday. Oh, man. Is that why is that why you did that? Because, I mean, I think before we get out of the segment, we should just talk about the collapse of the process just for a second, because, I mean, I don’t know when the. Last time was that I felt sorry for, you know, a millionaire athlete in that situation, but like, to the extent that you can feel the capacity for empathy for somebody that’s wealthy, great, handsome, has a good life. I was like McCann Ben Simmons man. I felt so bad for that dude.

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S2: I thought you were going to say you felt bad for Joel Embiid Joel

S1: Embiid being

S2: stuck with Ben Simmons. It is. I do take, I think, a perverse amount of glee in the fact that whenever the process doesn’t work out because you know what the process for the Hawks was, get one good player. They get Trae Young and now they seem pretty good, whereas the Sixers like we’re so smart, we’re going to like get all of these good players and what could possibly go wrong. We can’t we can’t possibly lose so well but the the Simmons thing and him getting the ball under the basket at the end of the game and just refusing to shoot, not shooting in the fourth quarter of the Doc

S3: Joel refusing to dunk.

S2: Yeah, I feel bad for I do feel bad for him. And it seems like he’s the closest we’ve gotten to a basketball player with like Steve Sacks, Chuck Knoblock, Rick Ankiel situation. And it’s always a bad idea to bet against talent. And this guy is just amazingly talented. And so I wouldn’t be surprised if he figures it out. But man is really, really rough it to watch what became of him in these in these playoffs.

S1: In our next segment, we talk about how the Supreme Court handed NCAA its biggest deal to date.

S3: The Supreme Court on Monday handed down what was immediately pronounced one of the most important decisions in the history of sports law. The case is NCAA v. Alston. And while the ruling was narrow, the court found that the NCAA can’t restrict payments by schools to athletes for some academic related expenses. The potential legal and practical consequences could be enormous up to and including the death of the NCAA as we know it. Mark Joseph Stern covers the courts and the law for Slate joins us now. Hey, Mark.

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S4: Hi. Thanks so much for having me on.

S3: Often with Supreme Court rulings, you have to clear out the legal underbrush to understand what the justices are saying. Not so here. This ruling was unanimous and it includes stark and plain language that undermines the entire historical justification for college sports as a, quote, unquote, amateur enterprise.

S4: Yes, that’s absolutely right. This is a pretty easy opinion to understand. I think anyone could pick it up and sort of grasp the bottom line here, which is that the Supreme Court is highly skeptical of the sort of baseline fundamental theory that the NCAA has used for many, many decades to justify what would be in any other context, overt, monopolistic price fixing and cartel like anti competition control.

S2: And the concurrence from Brett Kavanaugh laid that out in much starker and fyrir terms. Fyrir is a hard word to say.

S3: You should say that the that the majority opinion was written by another Trump appointee, Neil Gorsuch.

S4: That’s right. Both of both of Trump’s male appointees were on board, as was Justice Amy back at the entire court was united here. And the only difference, I guess, is that Kavanaugh may have gone farther if he had the votes this time around. But Gorsuch still did a pretty good job, sort of just walloping the NCAA every which way.

S2: And so the cabinet concurrence was interesting to me, Mark, both because of the language that he used. I thought he did a good job and kind of putting it in terms that anyone could understand, like restaurants can’t come together to cut cooks wages on the theory that customers prefer to eat food from low paid cooks. I mean, that seems like a fair and accurate analogy, but based on my reading of it, it seemed like he was actively inviting further and more expansive challenges to the NEA model, basically saying

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S3: doesn’t seem

S2: like it would really withstand scrutiny. If somebody wants to come and tell us where am I reading that correctly?

S4: Yeah, absolutely. And let me give a little background to explain why that makes sense. What happened here is that a number of current and former student athletes challenged several different rules that the NCAA imposes on its members. One of those rules is, of course, no direct compensation for playing sports. Another one of the rules is a really tight cap on education related benefits. And so that could include scholarships for future academic programs like graduate school or vocational school. It could include money for laptops, for tutoring, that kind of thing. And the the lower courts upheld the NCAA’s ban on direct compensation, but prohibited. The NCAA is really tight cap on educational benefits. And both of those decisions flowed from the central argument here that the NCAA put forward, which is that consumers of sports love watching unpaid people compete. And that is how Amy Koonibba reporting during oral arguments. And that’s exactly what the NCAA argued. You know, apparently consumers love amateurism. They love amateur sports. There’s a huge cluster of consumers out there who draw a really bright line between amateur sports and professional sports and feel that if amateur players were allowed to be paid by their schools, that the entire sport would fundamentally change and and people wouldn’t want to watch it anymore. And the demand for college athletics would dry up because all of these consumers would huff and puff and say, we cannot accept these paid players. They’re not amateurs to us anymore. So the Supreme Court did not actually hear that first part of the lower court’s decision, the Supreme Court did not consider in this case whether the ban on direct compensation is lawful or not. Nobody appealed that part of the ruling that stood no matter what this case was only about those education related benefits. And so here the Supreme Court unanimously said, look, no one is going to think that amateur athletes are not amateur because they’re getting education related benefits, if only, if anything, those. Benefits highlight the fact that these people are students in school, not professionals, and the court did not address the, I think, more pressing issue of direct compensation. And what Brett Kavanaugh is doing in his concurrence is teeing that up for a future case. He’s saying, all right, guys, I understand this particular question didn’t make it to the court this time, but we have now kind of laid the groundwork to answer it. And I am very ready and enthusiastic and excited for that case to come to us, because I really think that the reasoning of today’s decision should also undermine the NCAA’s ban on direct compensation to athletes.

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S1: This is, I guess, why so? You know, if Brett Kavanaugh says that he’s inviting another challenge and I think that’s why so many people that support athletes getting paid and being able to avail themselves of all the financial opportunities out there were. So they seemed a little bit more pessimistic about this. And I wonder if that’s because I mean, consider that Alston. The NCAA started in twenty twelve. This is twenty twenty one. So any challenge Margaret, wouldn’t that just I mean, we’re talking, you know, years in the future, possibly with a completely different Supreme Court at that point. Right.

S4: It’s going to take a while. And any kind of antitrust case takes a while to work its way up to the courts, in part because they’re very fact sensitive disputes. And that’s what accounts for the kind of split decision below in this case, where the judge held like a 10 day trial, she amassed a ton of evidence and eventually decided, OK, well, the amateurism argument can cut the mustard when it comes to direct payments, but not for education related benefits. So if students want to now go back, build off this Supreme Court decision and argue, actually the whole amateur argument doesn’t hold water for direct payments either, they’re going to have to build up a record. They’re going to have to show not only that this is a restraint on trade, but that it has the effect of reducing competition, that it does not actually benefit consumers. And that’s, I think, kind of difficult thing to show. I mean, there is a lively debate in this country about whether or not paying college athletes is the right thing to do. And many people who argue that it is the right thing to do, that paying college athletes will change the nature of the game. It will make the sport more professionalized and drive up consumer interest in it. And so, you know, that’s going to take a long time at the trial court. And no matter how the trial court rules, it’s going to have to slowly trickle up through the appeals court and to SCOTUS, which, you know, we could all be dead by then.

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S3: But Kevin also, in his concurrence, did signal which justices often do, right, Mark? Like go figure out a better way here. At one point, he says these difficult questions could be resolved in ways other than litigation. Legislation would be one option or colleges and student athletes could potentially engage in collective bargaining to provide student athletes a fairer share of the revenues that they generate for their college’s

S2: image and likeness. Legislation is going into effect in six states coming up within a week. And so we have. The NCAA here feeling pressure from a bunch of different sides, both about any future litigation that might be inspired by this ruling, but also the grounds moving underneath them legislatively at the state level and maybe at the federal level soon.

S4: Yeah, and first of all, I never, ever in my entire life expected Brett Kavanaugh to use the words collective bargaining in a positive way like that was kind of shocking. Second, I think he’s on to something here and his example of the ability of athletes to use their likeness to profit from their publicity. That’s kind of a success story in this area, right? Because athletes demanded that the NCAA resisted. States started passing these laws nonetheless, and eventually the NCAA caved. And I think that,

S2: well, the NCAA hasn’t quite caved. The NCAA has partially retrained.

S3: Retrenched is right. I mean, sort of hired some more lobbyists to try to figure out ways to protect itself.

S4: Right. A number of states have passed laws allowing college athletes to make money off of their publicity, off of their image. And the NCAA is considering softening its stance. They are feeling pressure from the state legislation. And I think that these are really complicated questions. And sometimes the answers need to be nuanced and need to come from lawmakers. And I think that if Congress could step in here and craft a solution that really did benefit college athletes and provide a clear answer, everyone would be much better off than a single Supreme Court decision just declaring up or down, you have to give them fair market value or you’re allowed to keep, you know, using forced labor. It’s difficult for courts to resolve these questions on their own. And that’s something that Gorsuch actually hints toward in his opinion, where he suggests that, you know, as a general rule, courts don’t want to be in the business of crafting these really broad public policy rules, just using a really short statute like the Sherman Act.

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S2: Joel, I’m curious for your thoughts on this seeming like maybe the only bipartisan issue in America. I mean, you can see it in the unanimity of the court opinion, but also Republican and Democratic members of Congress have talked about the NCAA in very harsh terms and the need for reform here. And it might seem obvious to us and the facts of the case might seem obvious, but it’s just so striking how John Paul Stevens in 1984 is not seen as a reactionary, wrote about the NCAA playing a critical role in the maintenance of a revered tradition of amateurism in college sports. And so Joel, do you think that just like the political winds of change, have more people just become aware of the fact that this is wrong and unfair? Well, you

S1: all can can second guess me on this, right. But I just don’t you just think that this is more of Americans increasing distrust of institutions, like it’s easy to hate the NCAA. It’s easy to hate the media. It’s easy to hate, you know, any any institution that has gotten rich in, like the last few decades. Right. And so people look at it skeptically. But that doesn’t mean, at least to me, that people are on the side of paying athletes. Like, you know, these are two separate things. And the NCAA has always been sort of a dodge to me. And Mark, maybe you can correct me this or Stefan and Josh, but like the NCAA is just a group of institutions. It wouldn’t take anything for like 50 like Alabama, Clemson, Ohio State, UCLA, Washington, to just form a whole nother organization based around giving extra, you know, postgraduate scholarships to athletes and saying, OK, well, that’s the way we’re going to compensate because we don’t have to pay and we can just we can compensate our athletes in that way. Right. Like, I mean, I just I know that this seems bipartisan, but I don’t think that it’s it means that people on the side of the athletes getting paid. I just think it means that it’s easy to bang on an institution that is unpopular and increasingly so. But that doesn’t mean that, like, you know, the fundamentals of amateurism are threatened here. Does that make sense?

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S3: You know, I don’t I don’t know that I agree. And I wonder whether the real like really what’s happening here is this this decades long drift toward something that is equitable and right and that people will just come to accept it because of all of the change that occurs. I mean, maybe this is a terrible analogy, but I wonder if it’s not a little bit like marriage equality that, you know, we go decades and decades with form clear public opinion polling, opposition, and then suddenly the majority of the country thinks this is totally fine. And I wonder whether once college. States are paid their market value or something closer to it, people will just be like, oh yeah, of course they should get paid some money, they’re making billions of dollars from the TV rights. So I do think this is part of the slow continuum and it’s slower than a lot of us would like. But this is a huge development in sort of the affirmation that the Supreme Court is, you know, agrees with progressive sports analysts that this system is just completely unfair and fucked up.

S1: I mean, I don’t know, man. I mean, most polling shows that like I mean, the most recent poll that I could find, which is from a few years ago, that like something the closer, like three fourths of white people overwhelmingly disapprove a plan of paying college athletes. Yeah, but

S3: I’m saying, like in 10 or 20 years, will we look back on this? Like, what was the big deal like? Of course, we ended up where we ended up. Maybe I’m being overly optimistic to

S4: two quick points here. First of all, I don’t want to overestimate the average American’s deep interest in antitrust law or the Sherman Act, but I do think there is an emerging hostility toward monopolies and toward like this cartel, like use of market power to suppress pay with varying degrees of sophistication and understanding exactly how it works. But you see, when you know Congress, when the Senate confirms Lenaghan to the Federal Trade Commission by a very bipartisan vote, that is Republicans in the Senate showing that they care about antitrust, that they are concerned about monopolies. And I think that this renewed interest in monopoly power could be driving some of this bipartisan skepticism. Number two, there is a social justice element here, and it’s one that, surprisingly to me, Brett Kavanaugh brings up in his opinion. He says, the student athletes who generate the revenues, many of them are African-American and from lower income backgrounds who end up with little or nothing and cites the brief for African-American antitrust lawyers. Not a brief I expected cabinet to cite here. And so I think that to the extent that conservatives may be increasingly hostile to large corporations that present themselves as WOAK and also exercise monopoly power, liberals are hostile toward corporations that manipulate and abuse minorities and use their labor to bring billions of dollars to already wealthy people. There is a common ground here. And even if conservatives and liberals may have different reasons for their skepticism toward the NCAA, at the end of the day they can come together and maybe agree over this particular issue.

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S1: I think Mark said that I was right. Yeah, that’s I said a good institution. I feel like I won that one. Stefan. I’m sorry. Sure.

S3: Well, but the movement and I think this is an Kavanagh’s opinion, too, is that if someone like Brett Kavanaugh says something well, more conservatives are going to start to believe in, does that change the way that, you know, the people that you might think of as prototypical big college donors and boosters start to think? I mean, Cavanaugh says here the bottom line is that the NCAA and its member colleges are suppressing the pay of student athletes who collectively generate billions of dollars in revenues for colleges every year.

S2: What I would say is that a really common argument you hear from the kind of like comedian, troglodytic college sports fan is that

S1: he knows having read tiger droppings, the LASU,

S2: I do know is that. Athletes who are not satisfied with getting a scholarship and education are ungrateful, and I would play for free, so why would they dare ask for more than that? But the other thing that the media and troglodytic sports fan cares about is winning and if and when the rules change. They will be totally fine with athletes getting paid and then the next frontier will be like Alabama’s cheating. And I mean, it’s a very kind of like typical kind of back and forth cycle and Joel I know you know well, but I do feel like Stefan is onto the fact that people will change their minds and not acknowledge that their minds have been changed and just figure out something new to be mad about.

S3: It did not take long and the arc of history in sports for fans to go from, oh my God, we’re paying Claudelle Washington three hundred thousand dollars a year to play baseball to everybody being an armchair GM and analyzing the salary cap and how much each team is spending and urging them to spend more. I think something very similar will happen with college football and basketball.

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S1: I hope you all are right. I’m much more cynical about like the resistance people have to seeing black people thrive in this country. And so I think that that may be an element that will still be foundational in any of these arguments going forward. But maybe you will be right. Maybe it will change. And I will be pleasantly surprised. But I haven’t seen anything happening in the last decade that indicates to me that people are going to become more enlightened about like a racial justice issue, which is essentially black players being cut out of the wealth if they generate for these major institutions.

S4: So just one piece of speculation here. It may be that with this decision, the horses are already out of the barn because, as I said, the court really undermines the legal theory that the NCAA has used to fix prices for all of these years to to, you know, suppress competition. And now the Supreme Court has opened the door to kind of a secondary back door ways for colleges to compensate athletes. I mean, we’re not supposed to say that, but and we we should all agree that, you know, like a scholarship for grad school is a worthy thing and and it’s categorically different from direct compensation. But I think the schools are going to be able to use this decision to start offering increasingly lavish benefits to students that are putatively tied to education. And this is what the NCAA feared. And Gorsuch kind of pushes it aside and says, oh, that’s not going to happen. But I don’t know if that’s right. The NCAA speculates about, you know, athletes hiring limousines to take them to games and the school having to pay for it. I don’t think I’d go that far. But you can imagine increasingly nice computers, technology given to student athletes, payment for various trips and training, all all of these ways that athletes could get more money and more perks. That leads to more competition. That eventually creates a system where schools say we would rather just pay them because having to deal with these kind of tricky backdoor remunerations is more complicated than just cutting them a Chuck.

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S1: We haven’t talked about the NCAA statement. You all tell me your impression of this. Like it feels to me that the NCAA didn’t didn’t consider itself losing. Their statement was while today’s decision preserves the lower court ruling, it also reaffirms the NCAA is authority to adopt reasonable rules and repeatedly notes that the NCAA remains free to articulate what are and what are not truly educational benefits consistent with the NCAA mission to support student athletes. Even though the decision does not directly address, name, image and likeness, the NCAA remains committed to supporting inital benefits for student athletes. Additionally, we remain committed to working with Congress to chart a path forward, which is the point the Supreme Court expressly stated in its ruling. That doesn’t sound like.

S2: What do you think they’re going to fight to the end destroy, of course.

S1: But I mean, it just doesn’t. I mean, of course, like, obviously that’s they’re going to put up a face, a stoic face. And in the wake of this. But I mean, it feels to me that like I mean, they’re not going to roll over. And I mean, the NCAA is pretty much undefeated in the history in the in the course of amateur athletics in this country. The NCAA, to me at least, is undefeated. So. Right. I disagree with me. I’m the only one. Mark, come on and help and rally to my defense here.

S4: The NCAA is going to try to to police the boundaries of this decision and strictly limit it. And I am just not convinced that it is going to be able to. I don’t think that the category of education related benefits is as narrow as either party makes it out to be. I think that when this is implemented in the real world, we’re going to discover a lot more ways for schools to provide these perks to athletes and that the NCAA is just not going to be able to police this decision to the extent that it doesn’t expand to its logical limits. And possibly even

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S3: beyond that, the NCAA is going to be holding on to its rulebook while it gets into the Titanic lifeboat. I mean, there’s no doubt that they’re just going to keep hiring lobbyists and lawyers to try to fight this until they can’t fight it anymore and then once they’re done. Losing, they’re going to say, well, of course, it’s time to pay athletes their fair share,

S4: which is pretty much what they did with sports betting or what they’re on track to do with sports betting. You know, took New Jersey to court, tried to say, you know, sports betting needs to remain illegal. And when when the Supreme Court struck down the federal ban on sports betting, the NCAA turned around and said, oh, well, we’ll think about this one and is probably trying to figure out a way to work within the system of sports betting now as well.

S3: Mark Joseph Stern covers the courts, Supreme Court, the law for Slate. Mark, thanks for coming on the show.

S2: Thanks so much for having me. Up next, David Epstein joins us to talk about Shelby Houlihan doping suspension. The U.S. track and field trials got underway in Oregon this past week, and if you want to hear about who showed up and who to watch at the Olympics, then you should stay tuned for our Slate plus segment later in the show. But for now, we’re going to talk about an athlete who did not run. Twenty eight year old Shelby Houlihan holds the American records and the fifteen hundred and the 5000 meters. But earlier this month, the Court of Arbitration for Sport upheld a four year doping suspension against Houlihan, a ruling that if it doesn’t get overturned by some mechanism at some point will knock her out of the Tokyo Games starting next month. In the twenty twenty four Olympics in Paris, Houlihan tested positive for the anabolic steroid nandrolone. In the story she’s telling is that she ingested that steroid via a burrito she ordered from a food truck. Joining us now is David Epstein. He is the author of the book The Sports Gene and Range. And you can hear him on the Slate podcast. How to Dave. Thank you for being with us to discuss Shelby Houlihan Spirito.

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S5: My pleasure. And by the way, she’s definitely out of Tokyo now, no matter what, because she’s now missed the trials. So she’s out for sure.

S2: There we go. All right. A correction right away. I love it. So a little look behind the scenes for you guys. David is often telling me what I’m right and wrong about when I ask him. Not unsolicited, but as soon as I heard about the story, I started bothering him about it because it seemed so ridiculous. And I haven’t gotten to the most amazing part in the introduction, which is the Shelby Houlihan and claims she ordered a Karani ASADA burrito, which is a beef burrito, but that she ingested the nandrolone because she had eaten pig offal. So she was alleging burrito cross contamination. But Dave, you told me that you don’t think her story is so ridiculous or actually if it is ridiculous, you don’t think it has much bearing on whether she’s innocent or guilty?

S5: I think there are a lot of different issues here. Let’s start with the burrito. The burrito is we should always start with the burrito. The burrito story is improbable, right? She didn’t order the pig off. That said, there are a lot of improbable stories here. And and she had to try to establish the source of the nandrolone in order for her appeal to the Court of Arbitration for Sport. And they were appealing on a technical matter that that hasn’t really been in the news, which is that if it is meat contamination as opposed to like injected nandrolone, the testing procedure is actually difference with a female athlete. First they check, are they pregnant because there’s some natural nandrolone? If they’re pregnant when they say they’re not, it goes to other testing area. And then there’s another split in what happens, depending on if it turns out that it was naturally produced by some other animal or was it was it injectable? And so they were forced to argue the case to try to come up with some plausible story. So nandrolone, I will say when I reported on baseball, it was the when someone would say they had a, you know, a false positive test, it was a supplement. I always said yes, except I came around on nandrolone specifically because it’s such a it’s a common contaminant and. It’s the single easiest thing to test for. So even baseballs, serious testing basically kicked out nandrolone of use, because if you inject it, which is how people typically use it, is detectable for months, for months. OK, and so if the answer is you actually don’t know where it came from, if it was legitimate contamination, you still have to come up with some story for the Court of Arbitration for Sport. And so I’m stuck choosing between improbable stories, which is athletes have to be crazy to dope with nandrolone for years now. And Houlihan took it, gave a hair sample. She had other tests around it that were negative. So she’s probably not injecting it or those tests would have been positive. So it’s improbable that someone would be taking it orally in the first place. So that’s improbable. Doesn’t work as well orally. It’s the burrito’s story, improbable. And I’m stuck between these improbable stories of maybe they don’t know where it came from. It is a common contaminant. Nandrolone makes up most of the positive tests that the Athletics Integrity Unit finds overall. We know it gets injected into meat illegally versus the chance that she was for some reason taking it orally, which would be very rare and the stupidest thing you could possibly take. So I’m sort of stuck between these improbable stories. But my reflex these days when someone test positive for nandrolone is to think that that may be accidental because it’s like the one substance that everyone knows not to take on purpose anymore. But it’s still a common contaminant.

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S1: Well, we do so seriously. So is your sense, then, that people really don’t mean to take nandrolone anymore as a performance enhancing drug? Because I remember even going back to the 90s, like Linford Christie, Merlene, like great Olympic spirit champions, tested positive for nandrolone and were suspended. Right. So is your sense then that it really is like fallen out of favor with elite athletes because it’s so easy to detect?

S5: Yeah, I think his testing has gotten somewhat better and more truly random. It has it quickly fell out of favor because if you’re injecting it, which again is the way that people take it, gets stored in your in your fat deposits and the metabolites are detectable for like I mean, I’ve seen some papers that suggest up to 18 months. I think that’s a little far fetched, but for a long time. And otherwise, I guess you could take it orally. I haven’t really heard of people doing that before and it also wouldn’t be as effective. But I do think it’s it’s a drug that for professional athlete use, kind of kind of went went bye bye when testing became legitimately random and independent.

S3: I am at once thrilled that the National Pork Board is getting quoted and in the media and that there is discussion about unincarcerated boards and they’re really thrilled by that. I’m just I’m just really excited to see that in the press. But it’s not that the burrito’s story is improbable, it’s that it’s irrelevant. Like you said, she had to make up something because to take your case to the Court of Arbitration for Sport, you need some defense. When the real defense here is that, a, these tests are probably too sensitive now they’re too good. They can detect too small traces of banned substances and they sort of defy logic because the logic of using nandrolone just doesn’t exist anymore, as you just outlined.

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S5: Yeah, I mean, arguably, I’m sure there are athletes out there using it, but I can’t imagine it’s it’s it’s a horrible choice. I know when the Athletics Integrity Unit started and they did a report on doping in Kenya and there were a bunch of positives and everyone was like, there’s a huge problem. If you actually look at the breakdown, most of them were nandrolone positives. And I don’t think that’s because suddenly, like the most popular drug is the stupidest one to Doc for. I think it’s because it actually is kind of a common contaminant. This is not to say that Shelby Houlihan is not doping. I think I find it. I find the more burrito’s story to be improbable. But I also find it improbable that an athlete in her position took the last thing she should have taken and that somehow the tests around it also tested negative. And again, not only did they have to make some case to the Court of Arbitration for Sport, they had to make a case specifically establishing the source to say that the wrong testing pathway was gone down. And so if the answer is you don’t know what the sources, you still have to come up with something.

S2: So Lindsey Crouse from The Times did a really good piece last month about Brenda Martinez, the Olympian who nearly got banned for taking an antidepressant. And she came back. She tested positive for a diuretic that could be used as a masking agent. The diuretic was not on the label, and the reason that they found out it was in there was that once she tested positive, they sent it off to a lab to get tested and it was found to contain this this diuretic. And the story is really heartbreaking. What a Brenda Martinez had to kind of come out and talk about and declare that she was suffering from depression. The bands here are so severe, like the Olympics only come around every four years. That’s why you’re training for your whole life. And if you get like Shelby Houlihan, as you said, she’s not going to get that. They’re not going to like, you know, hold the Tokyo Olympics again next year. They’re not going to delay it for a week to give her another chance. And so if you do get falsely accused or falsely or suspended for a bad reason, like, you can’t really recover from that. And so there are these really heartbreaking stories. And Brenda Martinez, thankfully, is going to be able to to run. She was able to to prove her case. When you read something like that, Dave, it again puts you in this uncomfortable position of like if Shelby Houlihan is telling the truth, feeling very bad for her, and if she is lying, as a lot of athletes have done in the past when they’ve been suspended or accused, then it’s really a terrible thing given what happens to people like Brenda Martinez who are legitimately stung by this system.

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S5: And I mean, this is this doesn’t bear her guilt or innocence, but this is like the worst four year ban you could possibly imagine because the delayed Tokyo Olympics now make it a two Olympic ban instead of a one Olympic ban. But that that doesn’t bear her guilt or innocence, though. But I think I think correct me if I’m wrong, but Brenda Martinez this case was her positive test came through the US Anti-Doping Agency, where Shelby Houlihan came to the Athletics Integrity Unit that was established in twenty seventeen to sort of beef up drug testing. And I think the Athletics Integrity Unit pork up.

S1: What’s that we said to beef up our

S5: beef up to pork up right. To uncalibrated pork up the drug testing. And I think they set low thresholds. So had Houlihan tested with a higher level of nandrolone, it would have just automatically been an adverse finding. And none of that technical issue of how it should be tested should have could have occurred. But I think the Athletics Integrity Unit has sort of implicitly said, you know, we’re kind of willing to accept some more potential false positives to get more dopers. And that’s a trade off, you know, you make.

S2: How do you feel about that trade off?

S5: I gosh, that is a tough because

S2: because this is OK, let’s assume that she did take that Androulla and the like trace amount here. Would there even be a performance benefit for taking this

S3: sounds when she took it and how long?

S5: I mean, if she was taking this Namgyal and purposely, then it seems to me for sure it would have been aurally because if it were injected, which is the way the only way that I had heard of athletes taking it when I was doing doping reporting in sports. But but you could take it all if you wanted to if you injected it. Her tests around that and her hair sample test that she gave would have also been positive. So if she’s taking it intentionally, she’s taking it orally. It would clear more quickly orally. So it’d be less effective, but it would clear more more quickly. So it depends how, you know, how close to someone taking it. You you end up testing them.

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S1: Can we just take a thirty thousand foot view, three or four seconds? Because I guess, like, OK, let’s say you catch Shelby Houlihan, right. By no means should anybody believe that. That means that all of a sudden there’s going to be a clean Olympics and none of the runners, you know, everybody nobody tested positive. Right. So I guess. Oh, yeah. Like at this point, like, don’t you it just feels like testing is sort of like an antiquated testing for what people are testing for in the way that they’re testing for. It is sort of an antiquated notion now for athletes in the way that they prepare and train. Is it is that fair or do you feel differently about it?

S5: I don’t know. I mean, you’re certainly you’re definitely right that they’re not no matter what threshold they set. Right. So so my take is that setting low thresholds for things like nandrolone means like most of the even moderately savvy dopers will still get through. And you’re going to catch a lot of people who who accidentally ingested something. I think there’s like pretty decent research that suggests to me that in track and field in the Olympics, there’s probably about 30 to maybe 50 percent of the athletes have doped at one point or another. And you’re certainly not getting that many positives. You know, usually it’s like two percent a year, something like that. I think they’re for a lot of years when I was sort of reporting more actively on doping, it was almost like lockstep, like there’d be a technological improvement in drug testing. But then, you know, dopers would adjust. And so you’d see between one to two percent of tests would be positive every year, even while there was technological change. I think the biological passport has made a little improvement on that, which is where instead of looking for a drug or it’s metabolites, you take you test people repeatedly over time and you look for signature fluctuations in their blood levels. So so there was like a cycling team. I got some documents leaked from at one point where when biological passport started, they all started looking like they were identical twins. So they had to dope less clearly. They were engineering their blood levels in an unnatural way. They were still doping, but they had to dope less, and I think things like biological passport put athletes today at a doping disadvantage compared to athletes of many years past. And I think one of the places you see that is, is a lot of the women’s records are still stuck in like the 80s and early 90s when you could really dope with very little chance of getting caught. So I think I think people have to dope less now, but I still think the research suggests it’s probably like a third to a half of track and field athletes who have doped at some point,

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S3: but then are potentially being stuck with the notion that people that are getting caught are, in fact, not doping. I mean, a couple of these stories that have gotten some attention in the wake of of of the Houlihan case are astounding. Jarrion Lawson, the Olympic American long jumper ate a beef teriyaki bowl at a Japanese restaurant in twenty eighteen, tested positive for a metabolite of trenbolone. And then his agent had to go track down the beef supplier for the restaurant. And he was exonerated because of text messages that in which he said what he was going to go have for lunch. And his agent said had he ordered the Chicken Bowl instead of the beef bowl, he would have saved himself two million dollars on his reputation. This seems just absurd

S5: and it’s incredibly improbable. But that turned out to be true. Right? And luckily, they were able to establish a source like people inject, whether legally or illegally. People inject steroids into animals for the same reasons. They inject them into humans. More meat, right. That that happens. You can imagine people don’t care a lot about injecting an animals. So those things happen. You just have to hope that you get lucky to establish the source. I mean, so that’s that’s what I’m concerned about. The Athletics Integrity Unit, which is, again, that I think the savvy dopers, you know, are still largely going to get through, even though I think biological passport and sort of human intelligence gathering has made some improvements. But just doing sort of the threshold lowering in the absence of anything else, I don’t think you’re going to get a lot more real dopers, but I think you’re going to some maybe, but you’re going to get a lot more sort of accidental cases. And, you know, fortunately for a lot of athletes in the US, they like get legal representation and appeal and a lot of other places, they don’t really have those, you know, so athletes from poorer places just like fade away and don’t end up fighting those fights.

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S2: So maybe we can end with kind of a conversation about branding the ways in which athletes and I think distance runners and particular, Dave, there’s just this reputation that people on certain teams have and certain athletes kind of make it part of their image that they’re clean and that they want to get dopers out of the sport. And this team that Shelby Houlihan is on reputed to be a clean team. Right. And that they kind of talk about being clean athletes. And my sense was that that led to a lot of people being kind of disappointed, disillusioned when they heard about Shelby Houlihan. And so I’d like to get your kind of thoughts on both athletes who represent themselves as being clean and make that a big part of their self identity and whether that should kind of carry any any weight with us, but also about just like the continued capacity for people who follow the sport to be like surprised and disappointed when anyone test positive for anything.

S5: Yeah. I mean, unfortunately, I think self identification as being clean should not carry a lot of weight. You know, I think we’ve learned that lesson, you know, from from Lance, if no one else. Right. I do think there are things you can do, though. Like, you know, I think it would be interesting if Shelby Houlihan decided to release her biological passport. Data like that would be interesting to look at because obviously she hasn’t been sanctioned because of that. But when you look at someone’s biological passport data, you can you can say short of someone being sanctioned like that doesn’t look so good, you know? So I think there’s steps that athletes could take. Then again, Lance did that at one point and put it on the Internet briefly before taking it down, a clear doping signature. Somebody must have alerted him after that. But I think people in the running community, there are teams you hear lots of rumors about, and a lot of times those rumors end up bearing out in some way or another. And I would say in the running community, this was not a team that you heard a lot of those rumors about, doesn’t mean someone’s not doping individuals on an otherwise clean, clean team can be doping on their own. But I think that’s part of the disappointment, is that that like you hear chatter about about teams where things are going on a lot and this wasn’t one of those teams. So I think the disappointment in Alston

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S2: could be part of her defense, right? It could

S5: be. It could be. But but obviously, I think we can’t take take athletes grandstanding at face value necessarily, unfortunately.

S3: But we also need to factor in that these organizations shouldn’t be considered above reproach either. There’s all sorts of conflicts of interest, particularly in the European ones. The World Anti-Doping Agency, the Court of Arbitration for Sport, overlapping with IOC members. You’ve got like the head of the US Anti-Doping. Agency Travis Tygart, you know, talking openly about how we’re sacrificing innocent athletes, so a lack of trust in this system overall, I mean, it feels like we’ve gone a little bit from not trusting athletes at all and assuming everyone was doping because that was the, you know, not an unreasonable assumption to being skeptical of of the process by which we attempt to catch athletes.

S5: I mean, it’s it’s a political it’s a political body. Before Rio, when I was at ProPublica, I did an interview with Suarez, a guy who had just left his his first and only investigator had been a former agent. And he just sort of came out openly and said, you know, that his boss was slow walking like the Russia investigations because the head of WADA wasn’t IOC member. And so these are these are political bodies. You know, in many cases, I think international sports governance bodies are like have all the conflicts of interests of international politics, but with even less of the accountability, because it’s like once the event starts or once the ball rolls out in World Cup, it’s like everybody knows that other stuff. So, you know, I think you have a lot of political conflicts and motivations that have nothing to do with clean sport.

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S2: Basically, David Epstein, the author of the book, The Sports Gene and Range. You can listen to him on the Slate podcast, How to do. Always make sure that you know where your food is coming from.

S5: Yeah, just feel free any time you want to talk about on castrated pigs, you know where to find me.

S2: Thank you. Now it is time for after balls. And we told the story Stefan you told the story of Jarrion Lawson in our previous segment, the guy who tested positive because of the teriyaki bowl, Lindsay Crouse in The New York Times in her story about Brenda Martinez included a couple of other examples of what are known as no fault cases, ones that are overturned because it wasn’t the athlete’s fault. She mentioned a member of the Olympic softball team and an Olympic hopeful boxer, both tested positive, only to find out they’d been exposed to banned substances through sex with their partners. Word to the wise and then and I quote, In twenty eighteen, a 90 year old man in Indiana named Carl Grove, who said an age group world record in cycling tested positive for a metabolite of the anabolic steroid trenbolone. He lost the record and his national title and was issued a warning. The steroid was almost certainly in a liver dish made before the race. Stefan be careful. Be careful about eating liver before you play in the softball games. We don’t we don’t want your records to get tossed out. Stefan What is your Carl Grove?

S3: Last week during our conversation about Christian Eriksen of Denmark, I mentioned the nineteen seventy one death of Chuck Hughes of the Detroit Lions, the only player to die on the field in an NFL game. I said I remembered it, but barely. I was eight years old at the time. Hughes was twenty eight, a five Levin one hundred and seventy five pound wide receiver out of Texas, El Paso. He didn’t play much in five NFL seasons. He caught just fifteen passes. His only reception in nineteen seventy one was on the day that he died Sunday, October 24th, with one thirty eight to play and the Lions trailing the Bears. Twenty eight to twenty three. Hughes caught a thirty two yard pass from Greg Landry to the Chicago thirty six yard line after two more incomplete passes neither to him. With just over a minute left, Hughes started to jog back to the huddle and collapsed. Bears linebacker Dick Butkus said after the game that he first thought Hughes was acting to earn the Lions an extra time out. Then I saw his eyes rolling and he turned blue, Butkus said. Photos show his face down, his right arm bent awkwardly. He’s wearing a single bar, face mask and Black Puma cleats. In one shot, a referee’s bending over, checking on him. In another, a doctor is performing mouth to mouth resuscitation. Doctors also did CPR on the field. Hughes was placed on a stretcher fitted with an oxygen mask and taken to Henry Ford Hospital, where an hour later he was pronounced dead. The players didn’t know in the moment what doctors said later that Hughes had died on the fifteen yard line. Unlike Denmark and Belgium, after Eriksson’s collapse, the game resumed. The Lions turn the ball over on downs and the Bears ran out the clock. Even considering the football circumstances, Detroit down five, driving for a winning score and a half a century of cultural evolution. It seems pretty incredible that given what everyone had just seen, they finished the game. Listener Daniel Waldron wondered whether there was any contemporaneous pushback. The only thing I found was in a sidebar in the Chicago Tribune that opened with a quote from a tearful Bears receiver named Bob Wallace, who was a college teammate of Chuck Hughes. I wish they’d called the damn game off, Wallace said. Media coverage included football free accounts on page one of papers, including the Tribune and the New York Times. Sports sections, though, treated Hughes’s demise as part of the game’s story. The headline on the front of the Tribune sports section was Death Shadows Bears Victory. One Michigan paper used a photo of Hughes on the stretcher with an AP story. The headline, Lions are handed a twenty eight to twenty three upset by bears. The most remarkable media performance, though, might have been Howard Cosell at halftime. Highlights on Monday Night Football. The next day, Cosell opens with three minutes of breathless rehashing of Bengals, Raiders and Broncos Browns. Then there’s a commercial break. Steep oil, Firestone tires. Then coming out of the break, a shot of the Lions mascot and the Detroit players running on the field.

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S6: Tiger Stadium, Detroit, Michigan. The Lions coming out onto the field to face the Chicago Bears in a game that was ultimately to produce the terrible tragedy of Chuck Hughes. This is first quarter action. The Bears trailing three to nothing but gunshy, taking the handoff himself by quarterback Bobby Douglas, first in twenty one yards for the touchdown and

S3: the Bears leading the pro shift in tone there by Cosell the dude is dead but to the action to justify continuing with the highlights. A little bit of somber foreshadowing now by Cosell.

S6: Not at this time of what was Doc Carolita second quarter action. Thirteen, fifteen remaining Chicago leading seven to six. Bobby Douglas throwing along to giants Bama. Obama taking the ball

S3: literally two more minutes of game highlights a Bobby Douglas touchdown pass. His coach moved in with him to prepare for this game 102 yard kickoff return. Another Douglas touchdown throw and unremarkable interception. You must watch this play closely. Finally, we’re like seven minutes into the highlights now. Here’s what we hear.

S6: But the scene is set for both quarterbacks. And with only four minutes and four seconds gone, Bobby Douglas keeps it goes in for the score. The Bears win twenty eight. Twenty three. But the whole game washed away because of the loss of Chuck Hughes.

S3: So did they cut to a commercial there and the highlights and go back to the booth for some somber chatter? Nope. Before Cosell even finishes saying the loss of Chuck Hughes, we get a tight shot of a white guy in a headdress and face paint. Kansas City Chiefs Municipal Stadium, Kansas City, the big game of Sunday. Earlier on Monday, the Lions team doctors had announced that Hughes had died of a heart attack. They claimed it was inevitable because of undetected blocked arteries. It turned out that Hughes had collapsed in the locker room after a preseason game seven weeks earlier and was hospitalized for four days. In the subsequent weeks, he complained even publicly about chest pains. But doctors said they couldn’t find anything wrong and later cleared him to play. An autopsy revealed that Hughes had, in fact, likely suffered a previous heart attack. Hughes, his widow, sued the hospital and settled out of court.

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S1: Wow, that I mean, know this is 1971 maybe where people just a little less sentimental about death because we were right in the middle of Vietnam or something. I don’t I mean, I just it just seems like. Yeah, well, next man up, you know, basically I mean, basically, that’s what Howard Cosell said.

S3: Well, you know, it’s funny. I thought of contextually what I think is interesting is that it’s the NFL, right? This is like this is the league that kept playing after Kennedy was assassinated. I couldn’t find anything in newspapers with a reaction from the league. There was no statement from from the NFL’s main office. Pete Rozelle, the commissioner didn’t attend Chuck Hughes his funeral. He sent two representatives instead. And the league didn’t do anything really afterward. The league didn’t sort of force teams to add defibrillators in stadiums. An NFL spokesman told the AP, which did a survey of cardiac care at football stadiums each club as a qualified physician and will handle such matters individually. So, yeah, I think there was a let’s move on here. Next game, next man up.

S2: I mean, maybe the mentality from the league was if we don’t talk about this or make a big deal of this, then we won’t be held liable for this. It does seem like they wanted to make the argument that this had nothing to do with football, that it was just a coincidence that he happened to be playing football when this happened.

S3: Now, and it’s funny you should mention that Josh, because the sort of day two stories after the Lions doctors went before the media and sort of covered their asses by saying, hey, this was undetectable. We did all these tests months ago. There was no indication that, you know, that we could have known the Chuck Hughes was a time bomb. The lead of the AP story after that news conference was that football cannot be blamed for the death of Chuck Hughes. And that was actually the headline in lots of newspapers.

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S2: Yeah, I mean, the NFL is going to do what it does. It seems like the blame there. A lot of it should go on the media for not being skeptical. Yeah, that is our show for today. Our producer this week was Margaret Kelley Allyson the Pasha’s and subscribe or just reach out. Go to sleep, dotcom, hang up. You can email us at Slate dot com. Don’t forget to subscribe to the show rate and reviews on Apple podcasts for Joel Anderson Stefan Fatsis Josh Levin remembers Omer Obeidi. And thanks for listening. Now it is time for our bonus segment for Slate plus members and as promised, is now time to talk about the track and field athletes who were at the Olympic trials. No trace amounts of nandrolone for these people Joel at least that the drugs were able to pick up.

S1: Well, now, certainly now that Justin Gatlin didn’t qualify, you know what? I shouldn’t do that. That’s irresponsible.

S2: So moving on, so Don Harper Nelson, who we’ve had on the show a couple of times, her quest to make a third Olympic team at 37, she did not make it out of the first round of 100 meter hurdles Stefan. You know, given the times that she’s been running, obviously given her age and the fact that this is perpetually like the strongest field in all of sports, the women’s 100 meter hurdles, not a surprise, but still we’re all I know we’re all rooting for for Don.

S3: So we should have finished fifth in her heat. The top three from each heat moved on to the next round. I mean, I imagine I mean, I don’t know, we’d have to have her back on the show and talk to her. But she should and we should. I wonder whether the extra year helped her out in her quest. You know, on the one hand, more time to train, to recover from, you know, to make a comeback. But at the same time, another year of milage Joel.

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S2: Let’s talk about the people who did qualify. And one hundred meters Sha’Carri Richardson is kind of big star of the American team, right?

S1: Yeah. This is the week that I think that she became sort of more known outside of track and field circles. I mean, her, you know, I guess orange or yellow colored hair. This is sort of an arresting Vistage, right? Somebody pointed out that when she’s running, it looks like she has a flame emoji on her head. And and, yeah, I mean, it is just like her personality. She just had sort of a compelling story. Her biological mother had apparently died the previous week after she won the 100 meters, she ran up into the stands and hugged her grandmother.

S2: And nobody do this until she talked about it in an NBC interview after the race.

S3: Yeah, exactly. A remarkable moment. I happened to be watching the trials at that point, and it was really sort of take your breath away interview.

S2: It was clear to me Joel whether she was saying and I don’t think anybody knows her biological mother died last week or she found out last week that her biological mother had died. But I’d imagine that in the run up to the Olympics, NBC is going to be asking her a lot of probing questions. So they will profile pieces.

S1: We will definitely get more details about her biography as we go for it. But, yeah, I mean, like, you know, if you follow a track and if you’re an LSU fan Josh, you probably knew about Sha’Carri Richardson like she’s been sort of pointing to this moment for, like the last three years that anybody that had heard of her, they’re like, oh, you know, whenever the Olympics happen, it twenty, twenty, twenty, twenty one. She was going to be one of those people. And it seems to be that she’s peaking at exactly the right point. And as fast as she is is as great as she is, she’s still not the favorite going into Tokyo. Jamaica’s Shelby and Fraser price is probably the favorite is one of the Fatsis in the world this year. But it’s the

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S2: first since since

S1: Logia. Yeah, right. Yeah. I mean, it’s Dave segment we talked about, sort of like those women’s records that are sort of unassailable from the 80s and 90s because, you know, for whatever reason, no woman has ever touched ten for nine in the hundred or even gotten close. Do with that what you will. But this crop of runners seems as poised as you know. They’re probably have as much potential to at least touch or get close to that record as any group of runners in the last 30 years. So that should be really exciting. I’m looking forward to that.

S2: So in the men’s 100 meters, Justin Gatlin, who you mentioned in passing, finished. He’s thirty nine years old.

S1: So he finished eighth because he didn’t finish basically like he pulled his hamstring, it looked like and pulled up lame in the final.

S2: But do you think that’s because of the condensed NBA schedule or was that. Well, I mean, sometimes people just hurt their hamstrings. I don’t know. Maybe.

S1: Yeah, I mean I mean, look, it’s a very grueling schedule. Josh don’t overlook the travel going out, going out there. Eugene, Oregon, not an easy place to get to. I don’t think you can get a direct flight to Eugene. Some people, people from Oregon, let me know if you can get a direct flight to Eugene. I don’t think you can, but yeah, man, I mean, Justin finally ran out of space. You know, he’s not going to be in Tokyo. And I’m sure US is probably happy about that. I imagine they probably didn’t want to see Justin Gatlin show up again,

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S2: but shadowy past in history. So the guy who won, Trevon Bromell, is a name that people might have heard from. He did not win a medal in Rio, but he’s been on the scene. But the thing that. I find most fascinating on this podium Joel, is it the guy who finished second, Ronnie Baker, which is a good name for a guy to finish second and a track meet, has never competed in an international event? How is that possible? Yeah, what is it?

S1: That’s true. He’s different.

S2: I don’t know that you’re the guy who needs to tell you he needs to to check us here. It doesn’t seem possible that a guy could go to the Olympics and have that be his first international meet. That is

S1: crazy. But I guess, like, you know, 20, 20 kind of rule it out. And there were probably no world championships or whatever. Also, did you didn’t tell them the most important fact about Ronnie Baker. Do you all know what the most important fact about Ronnie Baker’s second place and the women’s 100 is now? He said TCU alone.

S3: I had a feeling.

S1: Yeah, well, you see that you figure these are going to be from Houston or TCU, correct? You’re one of the three. Yeah, I know. It’s like. Yeah, no, he’s not from Texas. He’s from Louisville. But we’ll take him

S3: for you to claim

S1: him. Oh yeah. Right. I that

S3: was common.

S1: So I mean we’re LUMS so I felt like I do get the right to claim him and it’s appropriate in this instance.

S2: So you’ll, you’ll have time Joel to school SunAmerica before the Olympics come. But just one kind of very basic question is like especially in these sprints for somebody who doesn’t follow the stuff, it looks like people running fast and there’s not a big part of it. And there’s, you know, with like you say in Balts is like, OK, that guy’s like taller than everyone. And so, like, we can look at his longer strides, but when we’re, like watching Sha’Carri Richardson or Trayvon Bromell or Ronnie Baker, like, what are the things that you look for as you’re like assessing whether somebody is good or not or their particular styles that you’re drawn to more among sprinters?

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S1: I guess I’ve always just been sort of I’m always most interested in, like the taller, lanky guy, sort of like Hussein, you know, like Carl Lewis was the first great sprinter that I paid attention to in my life. And he’s sort of a long, graceful looking athlete. Right. And those guys really stand out. Whereas, you know, somebody like me or anybody else like the shorter, more compact Maurice Green built athletes, they always sort of dominate the sprints, like they just able to turn over faster. They’re short, powerful, can build a lot of power in a short amount of time. But those taller you no longer lengthier athletes have always just sort of been really interesting to me.

S2: So in Sha’Carri, only five foot one, right?

S1: Yes. Yeah. That type of thing. Yeah. She’s a tiny little thing, man. Yeah. I don’t, I don’t know. I mean, I don’t know like I don’t you guys explain it to me. Like do you guys remember Gil Deaver’s or people like that. Like I don’t remember them being particularly tall. She came about in the era before Wikipedia so I didn’t look up her height in like nineteen eighty eight or whatever in nineteen ninety two. But I just, she just looked short. Right. She didn’t look very big. So like Allyson Felix, like Allyson Felix does not look like a big human being. Right.

S3: But it’s a good transition

S2: but a thing that hasn’t happened before. You go to Allyson, Felix is like there hasn’t been a woman sprinter come along who has been like so much taller than everybody else in the way that Bolt was and just sort of like revolutionized the sport in the same way. Like maybe maybe that’ll happen at some point, but it hasn’t happened yet.

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S1: Yeah, well, the same didn’t revolutionize and he’s just one of one. Right. Like that will never be. I mean, I shouldn’t say that, but they’ll never be anybody like that. You can’t revolutionize because nobody can be Usain Bolt basically.

S2: Right. And you you love Allyson Felix, right?

S1: Oh, man. I mean, I don’t think people understand, like how difficult it is to be a sprinter and to compete in five different Olympics. Like, I mean, just like to maintain to avoid injury, to have a baby and come back and like just to stay and be elite at the range of distances that she’s been elite at as well. Like a hundred, two hundred. Four hundred she’s done at all. And that’s just incredible, man. Like she’s she’s got to be one of our greatest Olympians, just up to the fact that like to maintain that sort of greatness over the course of twenty years, a span of twenty years like that’s like the think about Allyson Felix is that I’m not going to say that she’s like the LeBron of sprinting, but we’ve heard about her since she was in high school. Like everybody knew that Allyson Felix is going to be great. And somehow she surpassed expectations like, no, nobody could have told you that, like in twenty twenty one or twenty twenty, that she would still be here and still be competing and winning and being a threat to win at the Olympics. So, yeah, man, it’s just her story is amazing. And the thing about

S3: Allyson Felix is sort of the evolution that she’s made as a as an athlete and a public figure. Yeah, she was not an athlete that sought out a lot of media and her answers often were perceived as kind of perfunctory and sticking to the track and races. But then in twenty nineteen, she went. Public and became an activist, she called out Nike for its discriminatory treatment of athletes who become pregnant. She participated and wrote a piece in The New York Times op ed section that led to Nike changing its policies regarding how it treats women athletes. So now she has this additional luster as someone who has fought for and made progress for for the way women athletes are treated by by their sponsors.

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S2: So we will be watching for her, for Sha’Carri, for Trayvon, for Ryan Krauser, who set the Shot-put world record. I don’t know. They don’t usually show the shot-put that much. But Tokyo Olympics are getting pumped Joel.

S1: Yeah. I mean, I guess, you know, I mean, like, because it’s a weird off year and it doesn’t, you know what I’m saying? Like, I feel like we still shouldn’t kind of be having it because the pandemic is raging around the globe still like just because it’s sort of ending here, does it mean that it’s over and it’s probably still irresponsible to bring a whole bunch of people from all over the globe to one place

S3: and it’s going to be really weird. Did you see that the rules that Tokyo is implementing for the games in terms of like fans aren’t allowed to shout in the stands and other all sorts of other bizarre stuff? And I think somebody tested positive, like the first member of of a delegation upon landing in Tokyo, tested positive.

S1: So see what could

S2: possibly go

S1: wrong. I like seeing people fight and I like seeing people run. The Olympics will have some of all of that. So I’m sure I will tune in regardless.

S2: Thank you. Joel and Stefan and Slate plus members will be back with more next week.