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Why the NCAA won't be paying college athletes anytime soon
The headlines have blared relentlessly over the past several years, declaring the NCAA’s amateurism model “under attack,” being “blown up” and facing its “final stand.” There’s been a book, a documentary and endless panel discussions devoted to the plight of unpaid college athletes. Even “South Park” weighed in.
Amateurism, however, is proving more resilient than most college football defenses.
Last week, the Supreme Court declined to hear Ed O’Bannon’s much-chronicled lawsuit against the NCAA, ending a seven-year legal battle. While both the trial judge and appellate courts in the case agreed the NCAA had violated antitrust law, arguably only two tangible changes emerged.
For one, the courts permitted schools to begin awarding full cost of attendance scholarships -- a change NCAA president Mark Emmert had begun championing years earlier and that went into effect with the decision still under appeal.
And EA Sports no longer makes college sports video games.
“It certainly is a more modest resolution than we expected,” said Michael McCann, Sports Illustrated’s legal expert and a New Hampshire law professor who covered the 2014 O’Bannon trial. “Amateurism remains, it’s tweaked in a way that provided benefits that maybe would not have otherwise existed before, but I don’t think the world is dramatically different today than it was then.”
Things would have looked radically different if the entirety of federal judge Claudia Wilken’s initial decision had stood. In addition to cost of attendance, the Oakland, California, judge ruled that colleges should be allowed to put aside up to $5,000 a year in a trust fund to compensate an athlete for use of his name, image and likeness. Had her policy come to fruition, the NCAA would have officially entered the world of pay-for-play.
But in September 2015, the U.S. Court of Appeals for the Ninth Circuit reversed that portion of Wilken’s decision while upholding the rest. The ruling proved dissatisfactory enough that both sides appealed to the Supreme Court, with the NCAA looking to restore its more stringent definition of amateurism and O’Bannon’s team looking to restore trust funds.
After the justices passed, both sides declared victory.
“Amateurism is an integral part of the college sports model, and the Ninth Circuit decision – which is now final -- endorsed that quite clearly,” said NCAA chief legal officer Donald Remy.
“The headline is they lost their antitrust appeal,” said Sonny Vacarro, the former summer basketball sneaker king who helped spearhead O’Bannon’s crusade. “They lost, we won. That’s how I feel.”
Meanwhile, a recent judicial ruling in another major NCAA amateurism-related case may push off the possibility of pay-for-play even farther.
In 2014, prominent sports labor attorney Jeffrey Kessler filed Jenkins v. NCAA, another antitrust case but one far beyond the scope of O’Bannon. Kessler wants to remove all restrictions on athlete compensation to allow football and basketball players to earn whatever the free market will allow. NCAA critics have been foaming with anticipation over the potentially game-changing suit.
But Wilken is presiding over this case, too. Citing language in the appellate court’s rebuke of her O’Bannon decision, the judge ruled in August that the plaintiffs are barred from seeking “cash compensation untethered to educational expenses.”
“There are benefits [the NCAA] can provide that have to be tethered to education," Kessler told CBSSports.com after the ruling. "They can get additional graduate scholarships. They can get better health care while they're in school and afterward. They can have families accompany them on recruiting trips. They can get money if it directly helps further their education. They can get a bonus for graduating, for staying school. Those are all things we think are permissible."
Hardly the potential outcome that once elicited headlines like “O’Bannon just the beginning: Jenkins case could unhinge NCAA.”
“The Ninth Circuit made it clear that the Association isn’t required under antitrust law to provide any sorts of benefits untethered to education,” said Remy. “Their language supported the principles of amateurism, and it is consistent with our values and our mission.”
For the many vocal NCAA/amateurism critics out there who use words like “indentured” and “exploited” when discussing college athletes, the past few years have presumably been a roller coaster of starts and stops.
In March 2014, former Northwestern quarterback Kain Colter became a cult hero for some when he convinced a regional National Labor Relations Board officer to recognize he and his teammates as employees with a right to unionize. For roughly 17 months, the possibility loomed of a national movement.
But the school appealed the decision, and in August 2015 the NLRB ultimately declined jurisdiction in the case, punting on the question of whether college football players are employees, not unlike the O’Bannon appellate court did with those trust fund payments.
“It’s the judicial equivalent of, ‘I don’t want to press the red button,’” said Patrick Hruby, contributing editor for Vice Sports and outspoken NCAA/amateurism critic. “They said, ’I don’t want to be the one who pushes the red button on college sports. Someone else is going to have to do it. Some other trial, some other judge.’
“They didn’t say the arguments for blowing this up were wrong, but they’re still not going to change anything, which I think is kind of cowardly.”
Perhaps that’s because judges, lawmakers and NLRB officers more closely mirror the public at large than what often feels like an echo chamber of sports media members and other critics weighing in on social media.
According to a 2015 HBO Real Sports/Marist Poll, 65 percent of Americans oppose paying college football and men’s basketball players beyond the value of a scholarship. A 2014 Washington Post-ABC News Poll found virtually the same result.
And the Supreme Court, by choosing to pass on O’Bannon (as it does 99 percent of petitions that come before it), apparently does not deem it urgent enough to address the issue of pay-for-play in college athletics.
“The impact of [O’Bannon] is significant, but it isn’t the same thing as the legality of Obamacare,” said McCann. “It’s significant in our world, but I don’t know that the Supreme Court views it with the same sense of importance that those in sports or those in Higher Education did.”
“I’ve always felt that the timeline [for change] is going to be very slow,” said Hruby. “This is an asymmetrical war where the schools and the NCAA have all the money and all the power. The athletes come and go in very short windows, whereas the schools are very entrenched. If you go to Congress, you go to the courts, the schools have a lot of pull.
“It’s definitely not a fair fight.”
But it’s a fight that’s continuing, albeit at a glacial pace.
The Ninth Circuit’s core antitrust ruling -- which repudiated the NCAA’s use of an excerpt from a 1984 Supreme Court ruling as a blanket defense for amateurism – certainly leaves the organization vulnerable to further litigation. It’s already facing a significant challenge from Kessler, whose Jenkins case is grouped with another class-action suit against the NCAA and conferences seeking damages for failing to provide full cost of attendance scholarships sooner.
Observers believe Kessler will invoke some “clever lawyering” to persuade Wilken that various forms of compensation can be considered educational. And subsequent appeals may well widen the definition of what he’s allowed to seek.
“Whatever she says is going to get appealed,” said McCann. “The impact of that [Jenkins] case may be more muted on the surface than what people thought it could lead to, but to me that case is more threatening [than O’Bannon] because it goes to the core of an athletic scholarship.”
Meanwhile, Michael Hausfeld, the lead attorney on O’Bannon’s case, told FOX Sports last week that his firm is actively considering bringing new suits against the NCAA, likely in another district not bound by the Ninth Circuit’s precedent.
“Oh yes,” said Hausfeld. “We have a number of young people who have expressed an interest in [becoming plaintiffs] and we’re evaluating our options. We overcame the highest hurdle, and now we’re going to be getting into sprinting.”
Pay-for-play advocates also found a glimmer of hope this week with news that the NLRB recently weighed back in on Northwestern. In response to a petition from a lawyer in California, the board issued an advisory regarding several “unlawful” policies in the team handbook, including restrictions on players’ use of social media. In a footnote on the first page of the document, the NLRB’s counsel wrote: “We assume, for purposes of this memorandum, that Northwestern’s scholarship football players are statutory employees.”
Some observers viewed that as a change in stance from the NLRB’s previous refusal to take on the issue of whether athletes are employees, but most legal experts don’t believe a footnote buried in a memo (not a binding ruling) about one school’s social media policy is likely to have profound ramifications.
Even as new mini-controversies like that one emerge, the sense of impending doom for the NCAA that hovered in the air during the O’Bannon trial feels more remote today than it did two years ago.
“I don’t think the sweeping changes that so many want are going to come through a court decision. I think it will be more organic,” said McCann. “Or, it could be that when we’re 75 years old, we’re still looking at a very similar system to what exists today.”
Perhaps they’ll be making video games again by then.
