There was a time when summer meant a period of relative relaxation for employees of the NCAA and its member institutions. Conferences typically would wrap up their annual meetings by mid-June, the College World Series would end in late June, and many folks enjoyed a down period until the start of practice for fall sports in August. No more. These are tumultuous times.
The O’Bannon case only seems like it has been in the news forever. It’s actually been only five years since the case was filed, if that is an appropriate use of the word “only.” For background, I recommend this article as an excellent summary of O’Bannon, in which the plaintiffs allege antitrust violations. Two of the original three defendants, Electronic Arts and the Collegiate Licensing Company, have reached a $40 million settlement agreement with the plaintiffs that is awaiting judicial approval. The NCAA has attempted to delay the trial, but as this is written, the case is scheduled to begin Monday, June 9, in U.S. District Court in Oakland before Judge Claudia Wilken.
The O’Bannon plaintiffs are asking Judge Wilken for an injunction that would end the NCAA prohibitions against players receiving compensation for the use of their images, names and likenesses, and the case has morphed over time into a fight over whether players should be paid a share of television rights fees. The plaintiffs no longer wish to pursue individual damages claims. Given the extent to which television rights fees have escalated recently, with no sign of slowing down, the stakes are considerable.
At the same time, the Big Five conferences (ACC, Big Ten, Big 12, Pac 12 and SEC) are pushing the NCAA for the freedom to run their businesses essentially as those conferences see fit, with little if any meaningful opposition possible from smaller Division 1 members. The NCAA Board of Directors is scheduled to review the concerns of the Big Five in August, and there has been talk that the Big Five could leave the NCAA if their concerns are not adequately addressed. The SEC Commissioner also recently raised the possibility of a new Division IV, with the big boys as the only members, if they don’t like what happens at the NCAA meetings in August.
The requests of the Big Five conferences bring into distinct focus the reality that it is no longer possible to implement a one-size-fits-all approach in Division 1. Simply put, some universities (the minority) make a bunch of money, while others lose a little or a lot. Judge Wilken mentioned recently that the big-business schools in particular might want to look at the significant amounts they are paying some of their coaches and ask if that is really appropriate, but I don’t think any members of the Big Five will do anything to slow down the arms race. It is simply unrealistic for anyone to expect that a governance system that includes, for example, both The Ohio State University (over 50,000 students) and Davidson College (around 1,700 students) together in the same division is the best way to go.
On a brighter note, I think there are some positive outcomes to reflect upon in the midst of all the unrest and uncertainty in college athletics. For example, we’ve seen a greater appreciation of the significant challenges facing student-athletes in terms of their time demands (as exemplified by the Northwestern University football players and their efforts to form a union), movement toward reducing the gap between a scholarship and the true cost of attendance, greater knowledge about and attention to the realities of sports-related head trauma and the need for provision of medical care after an athlete’s eligibility expires.
As a result, I think the future will be better for our young men and women in terms of the overall student-athlete experience. Unfortunately, reports of academic clustering and bogus classes for athletes could continue to present a negative picture to the public, even if the vast majority of institutions do not engage in unethical behavior regarding their core academic missions. Universities that stray from their academic missions regarding their athletes of course should be punished severely.
And as for O’Bannon, the NCAA likely will argue that college athletics cannot survive if the plaintiffs prevail. I don’t share that view. I do wonder how Title IX will factor into all of this should the plaintiffs prevail, but that’s a discussion for another day.
I welcome your thoughts. Thanks.
