The Game Changer
Elsa Cole, the NCAA’s first GC
Published in Corporate Counsel Edition - September 2009 magazine
By Josh Karp on August 11, 2009
Neither a former jock nor a rabid sports fan, Elsa Kircher Cole wasn’t entirely aware of the public and media perceptions of her new employer until she took on the task of creating the National Collegiate Athletic Association’s legal department in 1997.
“I didn’t understand how misunderstood we would be,” says Cole, vice president for legal affairs and general counsel of the NCAA. “We get a lot of scrutiny about what we do, and most people’s mistakes aren’t exposed like ours are. We don’t get a lot of big hugs.”
Indeed, every time the Indianapolis-based organization enforces a rule, suspends a player, sanctions a university or punishes a coach, there is an ever-growing horde of television, radio, print and Internet outlets ready to pounce. The impact on Cole? “I practice law in a fishbowl,” she says.
Take the first challenge of her ongoing tenure: a $66 million antitrust lawsuit against the NCAA and its member institutions. Nearly 2,000 assistant coaches had accused the association of unfair pay practices.
She first learned of the lawsuit in 1996, at a meeting of the National Association of College and University Attorneys. “I thought [the suit] was interesting,” says Cole, then general counsel for the University of Michigan. “But I never thought it would be my problem.”
Shortly thereafter, it was.
Upon taking the NCAA post, Cole quickly studied up on antitrust law—a practice area with little relevance to academic institutions, but pertinent to the sole governing body for U.S. intercollegiate sports.
“Elsa’s intellect allows her to learn new substantive areas very quickly and become proficient in them technically, probably at a quicker pace than many other lawyers,” says Pam Bernard, vice president and general counsel of Duke University. “She learned [and understood] antitrust very rapidly.”
Still, it was a tough battle.
“I took over when [the suit] was on appeal, which the NCAA lost,” she says. “The case eventually settled.”
Around the same time, the NCAA challenged its ties to Title IX—the landmark 1972 legislation that granted women equal access to athletics—after a female graduate student accused the association of discrimination. In 1999, the U.S. Supreme Court agreed. It unanimously ruled that the institution was exempt from being sued under Title IX rules because it does not directly receive federal funding (although it does indirectly through its member institutions).
To argue the case, Cole enlisted a high-profile Washington, D.C., attorney by the name of John Roberts. “[Roberts] was a model outside counsel, keeping me informed and consulting with me regularly and thoughtfully,” says Cole, adding that the future Supreme Court chief justice was “collaborative and never dismissive.”
Cole largely credits her father, who was a business professor at the University of California, Los Angeles, with shaping her worldview. He taught a popular class in lifelong learning and emphasized the importance of education not just as a way to get ahead, but as essential to one’s happiness. (The university’s obituary described Paul Kircher as “a man with an insatiable intellectual curiosity whose interests were unconstrained by conventional academic boundaries.”)
“To have a meaningful life you must continually expand your horizons and learn new things,” she says, echoing her father.
That perspective brought her to Stanford University in the late 1960s. She intended to become a teacher, but when she saw other female classmates declaring pre-med majors and moving into traditionally male-dominated fields, she set her sights on law.
Upon graduating with distinction in 1971, she earned her J.D. from Boston University, then returned to the West Coast as an assistant attorney general for the state of Washington. She represented the University of Washington in sexual harassment and discrimination matters, occasionally traveling to small-town courtrooms where she was the first female attorney to ever argue a case. Her arguments were often met with silence from the men and hugs from the women who worked as court reporters, clerks and bailiffs.
In 1989, with more than a decade of university-related experience under her belt, Cole left the AG’s office to become general counsel at the University of Michigan. There, she used her expertise to develop policies on affirmative action, sexual harassment and a student code of conduct.
It was the groundwork she needed for the NCAA post, which she took eight years later. “My interest is in access to higher education and [ensuring] that athletes get a good education,” she says. “That was the magnet that attracted me.”
Two great things about sports are the longstanding rules and traditions, which provide a welcome stability to players and fans. The football field will always be 120 yards long and the basket 10 feet high. Michigan will always wear the maize and blue helmets and Ohio State fans will always hate them.
Because of this love of tradition, the NCAA’s decision-making model was rooted in subjective experience when Cole became general counsel. Coaches knew which drills worked. That view of the world extended to policy.
“Sports are steeped in life experience,” she says. “And that subjective view is important, but you need something beyond that to support a policy.”
Upon Cole’s arrival, for example, athletes challenged the NCAA’s cutoff SAT/ACT score that determined freshman eligibility. In examining charges that the policy was discriminatory, Cole probed why specific cutoff numbers had been selected, and found little data proving that students with lower scores, when combined with a high GPA, were less likely to graduate. As a result, the association adopted a sliding scale policy, weighing GPAs against standardized test scores.
Similarly, after becoming aware of a small but significant number of catastrophic eye injuries, Cole spearheaded an effort to ensure that female college lacrosse players would wear protective eyewear. The initial reaction was that the added equipment would make the game more violent, like men’s lacrosse (the idea being that with more protection, athletes would be less careful). But there was nothing to support that argument other than opinion. Since the new rule was enacted, the number of injuries has dropped significantly.
“Good lawyers can tell you the law. Great lawyers impart wisdom with the law,” says Tom Butcher, university counsel for Michigan’s Grand Valley State University. He has known Cole for more than 20 years. “Elsa is someone I admire as a great lawyer.”
And with that wisdom comes a practical legal application. “If you can’t explain why a policy works today,” Cole says, “two years from now you won’t be able to explain it on a witness stand.”
According to Butcher, one of the great challenges of Cole’s position is the diversity of institutions and issues she has to deal with. It is often her job to help create a consensus among the numerous private, parochial, public and technical colleges with 23 sports in three divisions.
“In higher education, they sometimes say that the role of a dean is to herd cats, and that’s often the role of the NCAA general counsel,” says Butcher, adding, “but Elsa isn’t autocratic or dictatorial. She’s unflappable.”
Cole’s common sense was apparent when she weighed the eligibility of a swimmer who was born without a hand and used a paddle as prosthesis. During a debate as to whether this constituted an unfair advantage, since the paddle provided stronger resistance, Cole suggested that they put holes in the instrument. Problem solved.
That case was the leading edge of a greater dilemma now confronting the association. The wars in Iraq and Afghanistan will soon return many amputees who expect to resume their collegiate athletic careers. “Elsa was very early in identifying whether these prostheses could result in a positive unfair advantage for amputees,” says Bernard, adding, “Titanium legs are very fast.”
The NCAA has not yet made a final ruling, but Cole says the issue comes down to the essential underpinning of athletics: fair play.
Legendary Georgia Southern University football coach Erk Russell once said, “We don’t cheat. That costs money and we don’t have any.”
It’s money, though, that brings about Cole’s biggest challenges. Though it was already big business when she took the job in 1997, the money involved with the NCAA’s major sports has grown exponentially.
“Division I is where most of our litigation comes from,” Cole says. “[Money] drives eligibility, coaching behavior and third parties who want to benefit economically from our success.”
The issues can range from an athlete who wants greater exposure to professional scouts, to promoters who feel their income is restricted by limits on the number of preseason college basketball games. And because the NCAA’s primary job is to enforce rules pertaining to competition, many investigations stem from one school turning in another.
Still, Cole realized long ago that college sports are important for reasons that have little to do with money, something that came into clear focus during the 2009 NCAA Men’s Basketball Tournament’s Final Four in Detroit, where Michigan State made it to the championship game (but was defeated by North Carolina) in front of a home crowd devastated by the economic downturn.
“It’s an escape. You can put aside other issues because sports are so emotionally captivating,” Cole says, pointing out that when Michigan State won in the semifinals it was “two more days that the people of Detroit could be enraptured by what might happen.”
Married with two grown daughters, Cole’s life away from work is a full one—she remains an avid reader, pursuing the lifelong learning that she picked up from her father. She lights up when discussing her latest book, The Lost City of Z, a nonfiction account of an early-20th-century explorer’s ill-fated search for El Dorado in the Amazon.
“I’m reading about something I might never do myself,” she says. “I appreciate someone who sees a challenge and goes out and conquers it. It is consistent with what athletics is all about.”
She recently attended a meeting with the NCAA’s Division I board of directors, where 18 college presidents debated the future of the organization, and was struck by the intelligence in the room. “The commitment to student athletes, the quality of the people, their depth of concern [for the athletes] permeates everything we do,” she says.
That kind of perspective makes her understand the NCAA’s needs in a context that extends beyond the Final Four and the Rose Bowl.
“They say about general counsels that the best ones are somewhat at arm’s length. Because if you’re too much of an advocate for your client, you don’t have the perspective you need to give the best advice—the advice they need to hear,” Bernard says. “Elsa’s that kind of lawyer.”
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