Why Athletes Have a Legal Edge Over the NCAA: Four Blunt Points

Utah players celebrate at the end of their NCAA college football game against Colorado, in Salt Lake City on Nov. 30, 2013. Photograph by Rick Bowmer/AP Photo

This morning in a federal court in Oakland, Calif., the legal battle begins in earnest between the $16 billion-a-year college sports business and current and former athletes. The jocks want a piece of the dough.

A close look at the final pretrial filings by both sides reveals that the National Collegiate Athletic Association faces an uphill struggle. The athletes could still lose, of course, but by my reading their lawyers would have to snatch defeat from the jaws of victory. Four blunt points:

1. Don’t get distracted or intimidated by technical antitrust lingo. This trial raises broader and more profound questions than the nominal dispute over whether the NCAA’s ban on players being paid for use of their “names, images, or likenesses” in broadcasts or video games constitutes a “restraint of trade.” The case is called O’Bannon v. NCAA for Ed O’Bannon, a former star forward for the University of California, Los Angeles who led the Bruins to a national basketball title in 1995. He and the other plaintiffs are seeking to use the Sherman Antitrust Act to allege a more basic impropriety. The NCAA preserves an anachronistic notion of “amateurism,” according to the plaintiffs, as a crude means of not sharing the proceeds of a booming industry with those whose talent and labor makes that industry possible.

2. Conflicting testimony will lead to apples-and-oranges confusion. The NCAA will strive to keep the case as narrow as possible, focusing on such abstruse questions as whether the plaintiffs have defined quantifiable economic markets for “college education”  and “group licensing” of athlete intellectual property. The plaintiffs, in contrast, will remind U.S. District Judge Claudia Wilken at every opportunity that the traditional ideal of student athletes competing only for love of sport as part of a meaningful academic education has become a farce—at least in connection with Division 1 football and basketball, the only games at issue.

Look for the plaintiffs to put on witnesses who will talk about multibillion-dollar television deals, multimillion-dollar coaches’ salaries, luxury skyboxes, and athletes whose dubiously light course loads are squeezed in around 40- or 50-hour weekly team commitments. Somehow the plaintiffs will also find a way to quote Myles Brand, a former NCAA president who turned cynical in his later years. University presidents “want it both ways,” Brand observed. “They want to be able to rail against commercialism, and they want the revenue that comes with corporate ads.” Actually, the presidents and their NCAA colleagues don’t even rail much anymore. An NCAA Task Force on Commercial Activities in Intercollegiate Athletics in 2009 concluded that “[w]hile participating is to be an avocation for students, college sports as an enterprise is a professional undertaking for everyone else.” And that was the NCAA talking.

3. So what’s the NCAA’s defense? Yes, universities collaborate to deny compensation to players, the NCAA will have to admit. But in a landmark 1984 case, the U.S. Supreme Court said that certain organized sports activities “can only be carried out jointly” because athletics require “rules on which the competitors agreed to create and define the competition to be marketed.” Any NCAA rule that maintains the “revered tradition of amateurism in college sports,” the Supreme Court held, is to be presumed “procompetitive.” In its pretrial filings, the NCAA invoked the wisdom of a body it calls the Amateurism Cabinet. Made up of “college administrators and educators,” the group is “guided by the principle that ‘student participation in intercollegiate athletics is an avocation, and student-athletes should be protected from exploitation by professional and commercial enterprises.’” Judge Wilken will decide whether this tradition still deserves to be revered and whether student-athletes require protection from evil outside forces of commercialism—or from the NCAA.

4. However it comes out, O’Bannon won’t end this war. The plaintiffs in this case aren’t seeking money damages. Instead, they want a court order ending the NCAA’s ban on players negotiating with anyone who might want to pay them for using their likenesses. Even if the plaintiffs win, the NCAA would doubtless appeal, and the dispute could end up in the Supreme Court.

In other trial courts elsewhere in the country, meanwhile, other groups of current and former college athletes have filed suit under different theories. A case pending in federal court in New Jersey could pose an even more direct threat to NCAA Inc. as currently structured. In that suit, the athletes are demanding payment not just for use of their likenesses; they are attacking the more basic NCAA prohibition on any player compensation beyond scholarships for tuition, room, and board.

Having feasted for 30 years on vastly expanded TV, licensing, and sponsorship revenue, the NCAA and its constituent Division 1 universities are arguing in all of these cases that if undergraduate athletes get to share the wealth, fans will walk away. A great American tradition will collapse. If the U.S. judiciary buys that all-or-nothing position, perhaps the NCAA has a chance to protect the status quo. It doesn’t seem like a good bet.

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