The O’Bannon case and the future of the NCAA

On Monday my post is generally related to a timely sports topic prominently in the news, is focused on the business of sports or covers a sports subject at random.

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It’s been 30 years ago this month that the landscape — and especially the business model — of college athletics shifted in a dramatic way.

On June 27, 1984, the U.S. Supreme Court sided with several institutions of higher learning — most notably the University of Oklahoma and the University of Georgia — to rule that the National Collegiate Athletic Association was a cartel in how it controlled the negotiating rights for television contracts in college football.

50 Year SeductionAs Keith Dunnavant wrote in his excellent 2003 book, “The 50 Year Seduction,” the Board of Regents v. NCAA case that reached the high court was about so much more than a challenge to the largely unchecked power of NCAA executive director Walter Byers, who had run the organization in autocratic fashion for 30 years:

“. . . in a philosophical sense, the concept of the NCAA was on trial and so, by extension, was Byers. . . . The lawsuit was about power and money, but it was also about the right to belong to a voluntary organization without being forced to surrender every last ounce of personal autonomy.”

Today in a federal courthouse in Oakland, the NCAA once again is being put on trial in a way that could significantly alter how college athletics is run. Opening arguments are scheduled in O’Bannon v. NCAA, but the stakes may be significantly higher, and the issues more complicated, than what transpired three decades ago.

That’s because the NCAA’s status as a non-profit association staging amateur collegiate athletic competition is being threatened as it never has before, through a wide range of legal actions, conference realignment and intense media and public scrutiny.

Filed five years ago by former UCLA basketball star Ed O’Bannon, this lawsuit has morphed into a class action claim, contending that the NCAA engages in antitrust activity by using the names, imagines and likenesses of unpaid athletes to sell video games and other NCAA-branded commercial products.

The NCAA has countered that amateurism is the bedrock of its organization, both for competitive balance and for academic integrity. Compensating athletes, for their feats on the field or in a representational way, runs counter to the modus operandi of the NCAA, as its executive VP and chief legal officer, Donald Remy, has maintained:

“Our rules are designed to maintain the distinctive character of college athletics, and we will defend them.”

NCAA critics find that defense as laughable as they regard it implausible, and it has engendered even more piling on as the case has made its way to court.

While some legal and media observers are wondering if the NCAA cartel will be broken up once again, University of New Hampshire sports law expert Michael McCann offers a reminder that issues of law and other matters in this case have been narrowed down. In his thorough pre-trial analysis on SI.com, McCann also cautions that the case could still be settled, although he thinks it’s a slim chance since it’s gotten this far.

Whether O’Bannon v. NCAA reaches landmark status may not necessarily depend on how U.S. District Judge Claudia Wilken rules (this is a bench trial, meaning there will be no jury), but could rest with the scope of the decision. (Here’s another good primer on the case by Steve Berkowitz of USA Today.)

While some may wish for the NCAA to be destroyed, neither McCann nor Marc Edelman, another sports law expert at Fordham University, think a loss by the NCAA would lead to the demise of the organization or college sports in the form we recognize.

And there is precedent for that view. After the 1984 U.S. Supreme Court ruling, the NCAA recovered financially by developing its Division I men’s basketball tournament into the multi-billion-dollar “March Madness” extravaganza that culminates at the Final Four. The Cartel

Ironically, it is Ed O’Bannon, who won an NCAA basketball national championship in 1995, who is taking aim at the NCAA now, years after he played his last game for UCLA. And, as Jon Solomon of CBSSports.com notes in a compelling piece, that while “O’Bannon may be the face” of the trial, retired youth basketball impresario and athletic shoe company front man Sonny Vaccaro “is the heart of it.”

Many other related issues have been speculated about, including if, and how, Title IX might complicate compensating athletes in the revenue-producing sports of football and men’s basketball. Then there’s the matter of unionization, with a recent case involving Northwestern University football players being allowed not just a say, but a vote.

Something else to keep in mind are demands by the “Power Five” conferences — the SEC, ACC, Big Ten, Big 12 and Pac 12 — for more operational autonomy, as they consider how, and how much, they might pay revenue athletes. While a separate governance structure appears unlikely, pull-away threats by the aristocrats of college athletics are nothing new.

What will be become of these topics, including reforming the athletic scholarship process, and the effects of the O’Bannon case itself, remain to be seen. What is certain is that the philosophical arguments about the NCAA, and how it runs its ship, will remain in the crossfire.

In many ways, Taylor Branch’s 2011 article in The Atlantic, expanded into e-book form in “The Cartel,” provided these concerns with critical media mass beyond the sports world. A chapter of the book is entitled “The Redemption of Sonny Vaccaro,” detailing his efforts to build a legal case around the O’Bannon claims.

Joe Nocera of The New York Times chimed in again on the topic of the NCAA over the weekend. He also talked to Vaccaro, who feels heartened by significant movement he thinks is heading in a positive direction:

“In some ways, we have already won. People inside the system are advocating for four-year scholarships and other changes that will benefit kids. People have humanized the athletes. That’s really important.”

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