When Students Fight the NCAA in Court, They Usually Lose

The Wisconsin Badgers mascot and cheerleaders during the NCAA Basketball Tournament against the American University Eagles on March 20 in Milwaukee Photograph by Mike McGinnis/Getty Images

The $16 billion-a-year business of college sports is besieged by legal challenges. Now a professor at the University of Illinois has compiled a fascinating database showing that if it chooses to fight in court, the National Collegiate Athletic Association stands a good chance of ultimately defending its existing practices.

First, some background: In a case called O’Bannon v. NCAA, a federal judge in Oakland is expected to rule this summer on whether the NCAA constitutes an illegal cartel. More such antitrust suits are on the way, primarily motivated by current and former athletes’ demands for a share of the torrential revenue stream college sports generates. On another front, football players declaring themselves to be “employees,” rather than amateurs, are seeking to unionize—a move that would upend the relationship between universities and their athletes.

How will these battles turn out? No one knows. There are too many variables in too many different legal venues. Michael LeRoy, a professor at the University of Illinois School of Labor & Employment Relations and its College of Law, doesn’t pretend to have hard answers, either. But he has dug into the stats and come up with some intriguing findings.

“For decades, judges have fostered changes in how athletes are paid in professional baseball, football, basketball, and hockey,” LeRoy observes in a forthcoming law review article. “Recently, ‘labor’ has entered the lexicon of NCAA litigation involving antitrust and unionization claims.”

A National Labor Relations Board regional director has issued a preliminary ruling that favors a football-player unionization drive at Northwestern University. That seems to have accelerated the NCAA’s attempts to increase athlete stipends, if not go so far as to provide salary-like compensation, LeRoy says. In an attempt to forecast how courts will apply labor and antitrust law to resolve student-athlete complaints against the NCAA, the professor studied 81 state and federal court rulings on the topic from 1973 to 2014.

Here are his key findings:

• Students won all or part of 49 percent of trial-court decisions—what LeRoy, an enemy of legalese, calls “first-round” rulings;
• But the NCAA won in 71 percent of second-round cases as well as another 71 percent of third-round appeals;
• Venue played a significant role, as students won 75 percent of first-round decisions in state courts, while the NCAA won 61 percent of first-round federal decisions. This is important because the critical cases currently pending against the NCAA are in federal court;
• Historically, 40 percent of cases involved football; the rest involved a wide diversity of NCAA sports. The fight at the moment concerns the “revenue sports” of men’s football and basketball.

LeRoy continues:

“The future will likely bring be more court rulings involving the National Labor Relations Act (NLRA)…and [the] Sherman Act [the core antitrust statute]. After the full National Labor Relations Board rules in the Northwestern University case, a federal appeals court, and possibly [the] Supreme Court, will decide if college football players are employees under the NLRA. The NCAA’s record of winning most cases on appeal suggests that the ultimate outcome will favor the association.

“Under the Sherman Act, courts will probably find that college football players are in a commercial labor market, but also conclude that NCAA rules have a pro-competitive effect on the business of college football&mdashagain, favoring the NCAA. …

“Future courts are unlikely to order the NCAA to abandon its definition of ‘amateur’ athletics. Without enabling legislation that regulates this private association, courts have no authority to surgically snip the amateur competition clause in NCAA bylaws for football, and leave it intact for non-revenue sports. Even if a district court favors students in an antitrust case involving football, it will be hamstrung in ordering remedies because damages and court supervision would come back to hurt women’s sports that depend on football for financial support.

“In sum, while the facts favor classifying college football players as employees, the law supports the NCAA’s amateur-athlete model. Thus, while schools profit off the sweat of college football players, a federal appeals court is unlikely to view this commercial reality as legal justification to alter the NCAA’s amateurism model. But the forecast for occasional first-round victories by student-athletes—based on empirical findings in this study—means that the NCAA will be pressured to adopt a radically new model of amateurism that mimics the employment relationship.”

This analysis strikes me as keen and hugely revealing. If the college-sports industry were to fight to the end of every legal action, it might win more often than it loses.

But occasional first-round wins for students and their lawyers—an outcome I predict in the pending antitrust case in Oakland—mean that the NCAA will feel tremendous pressure to settle this litigation and institute changes that treat Division 1 football and basketball players more like the semiprofessional performers they already are.

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