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Lawsuits pose existential threat to the NCAA (essay)

The Threat to the NCAA

June 10, 2014

I admit it: I may have been wrong. As recently as a year ago, I wrote an essay in these pages explaining why the National Collegiate Athletic Association’s so-called amateur model would not break apart.  

It has not occurred yet, but many signs point toward the end of the NCAA’s unpaid, never-allowed-to-be-paid college athlete.

Twenty-five years ago, I wrote College Sports Inc. and in the introduction disputed the NCAA’s “myth” that “College athletes are amateurs.... Reality: A school gives an athlete [particularly football and men’s basketball players] a full-ride grant in exchange for the athlete’s services in a commercial entertainment venture, namely playing on one of the school’s sports teams.”  

More on the O'Bannon Case
  • Antitrust lawsuits could force much-needed change in college sports -- but Congress should step in instead, write Matt Mitten and Steve Ross. Read more.
  • As the trial gets under way, NCAA settles related lawsuit over video game images for $20 million. Read more.

The main reaction to that argument by college sports fans, at least those who wrote or spoke to me, was “You’re crazy,” or, more politely, “You don’t understand the reality of the amateur student-athlete”; in addition, many members of the sports media, in interviews and book reviews, echoed those sentiments. Both groups also dismissed the book’s title and denied the commercialism of big-time college sports.  (The editors of Inside Higher Ed, in their previous capacity, were among the few who took the book’s arguments seriously.)

In the years since then, as the commercialism of big-time college football and basketball multiplied geometrically, fewer and fewer people told me that I was “crazy” and that the NCAA’s “student-athlete” model worked well, especially in the major revenue sports.  Many more people started to share my point of view and argue for better compensation for athletes than athletic scholarships.  

When asked whether anything could change the system, I always replied that reform could not come from within -- the NCAA had billions of reasons, most of them in U.S. currency, to maintain the status quo. But change could come from outside, especially if an athlete brought a lawsuit challenging the NCAA’s “amateur model” and the courts found in the athlete’s favor. 

Frankly, I was skeptical about that ever happening: the athlete would need to find a high-powered law firm that could fight and beat the NCAA’s legion of well-paid lawyers; in addition, if the athlete was still playing college sports, he or she would have to deal with a head coach and assistants who would probably be very hostile to the lawsuit and who also controlled the athlete’s playing time.

I did not foresee that a former college athlete, Ed O’Bannon, would begin the legal challenge to the NCAA by claiming that he deserved some money from the association’s use of his image in an EA Sports video game. But I totally agreed with his argument. Then an excellent law firm took his case and he was joined as plaintiff by some other former players, including Oscar Robertson.  Nevertheless, I still believed that victory for the O’Bannon group was a long shot and I argued in my piece for Inside Higher Ed last year that if the NCAA lost, it would fight the case through higher courts and to the Supreme Court itself, and very well might, in the end, prevail.

The case has now progressed through the pre-trial stages, and recently O’Bannon’s lawyers narrowed the focus to concentrate on what the lead lawyer Michael Hausfeld described as “their priority ... to cause change to the system and structure of college sports” i.e., blow up the NCAA’s “amateur model." 

In addition, O’Bannon’s lawyers intentionally avoided a jury trial and ensured that the presiding judge, Claudia Wilken, will hear the case. So far in her pre-trial rulings, she seems sympathetic to the arguments of the O’Bannon side but, of course, that is still far from a final verdict in their favor. (See news article about the trial's first day here.)

What happens if O’Bannon wins and the NCAA’s “amateur model” is ruled invalid?  Will the NCAA, with almost infinitely deep pockets, take the fight through higher courts and eventually overturn the original verdict? 

The consensus of many lawyers familiar with the case is that appeals succeed when the judge and/or trial lawyers screw up in a major way, e.g., seriously misinterpret the law or make some other egregious blunder.  These same lawyers take the view that Judge Wilken so far has been very careful not to make errors, making a successful appeal unlikely.

If O’Bannon’s team prevails, the post-mortems will begin, as well as predictions and plans for a model of college sports to replace the amateur one. In last year’s essay, I predicted that if the courts rule against the NCAA, the association will get Congress to institute college athlete amateurism as law.  I am much less certain about that outcome: the combination of legislative gridlock and, as recent Congressional hearings on college sports demonstrated, opposition to the NCAA makes a new law more like a NCAA “Hail Mary” pass than a two-yard plunge for a TD. 

Thus, if O’Bannon wins, the future of the current college sports model could be seriously threatened.

I know one thing for certain: I hereby resign from the fortune-telling business.

Bio

Murray Sperber teaches in the Cultural Studies of Sport in Education program at the University of California at Berkeley.

 

 

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