The NCAA is the last defendant standing in the O’Bannon case after the recent settlement between the plaintiffs and defendants Electronic Arts (EA) and the Collegiate Licensing Company (CLC).
The NCAA’s position, to paraphrase its attorney, is “We’ll fight this to the end.” Of course, lawyers often take aggressive positions publicly while approaching matters in a more measured manner behind the scenes.
Another shot across the NCAA bow was fired recently with the announcement of high-profile attorney Jeff Kessler that his firm is implementing efforts to focus on NCAA issues. By all accounts, it is not a great day when Kessler expresses concerns about your organization.
No question, these are not the happiest of times for the NCAA. What can it do to stop the bleeding?
Here is what this writer would do if he had absolute authority as NCAA King of College Athletics:
The big boys have made it clear that they are unhappy with the NCAA and want to run their football enterprise. Let them do just that in a different governing body. If they want to implement new approaches to enforcement, eligibility, extra benefits, the definition of a scholarship and the principles of amateurism for big-time football, let them try to make that happen.
Let them fight the good fight through their new organization in terms of how to handle future football television revenue and whether to allow football players to share in some way in the massive television paydays, while adhering to the federal law that is Title IX. We at the NCAA will continue to administer football championships for the FCS schools as well as Divisions 2 and 3, and we will do a great job of it, as we have in the past.
If the court allows it, settle O’Bannon as it pertains to ex-players. As one prominent BCS sponsor might say, just do it. Our position is that we never intended to control, nor did we control, the rights to players’ images after their eligibility expired, although perhaps the forms we made them sign in order to participate in athletics were ambiguous in that regard. We’ll throw some money (maybe a lot of it) at this, but we won’t admit any wrongdoing, just as EA and CLC admitted no wrongdoing.
The big boys have spoken, and said they don’t want a pay-for-play system. And the little guys couldn’t afford it even if they wanted it. So it looks like we’ll have to fight through O’Bannon as it pertains to whether current players should share a piece of the television pie and commercial products. We’re on more solid ground here regarding current student-athletes when we can point to our principles of amateurism. Don’t laugh, our amateurism rules arguably make sense for most of our student-athletes, albeit probably not for the young folks who are generating the huge dollars for our institutions and the rapidly escalating compensation packages of their wealthy football and men’s basketball head coaches.
Amateurism is a moving target and we can redefine it. We coined the phrase “student-athlete” in large part to avoid getting whacked for workmen’s compensation matters back in the 1950s, and it worked. We can adjust and redefine the amateurism target again if we have to. What we cannot do is make another mistake in terms of antitrust law.
Much of the NCAA is worth preserving. So we’ll make the changes we need to make. That means that among other issues, we’ll consider the following:
Should we outsource enforcement?
Should we establish a trust fund comprised of a fair portion of our television revenue, available to all male and female student-athletes upon graduation?
Should we allow “free” transfers for student-athletes in all situations?
Should we allow student-athletes, on a gender-neutral basis, to endorse commercial products?
And of course, we’ll do a better job of focusing on the health and welfare of all our young men and women. Improved health coverage would be a great place to start in that regard.
Unfortunately, that reference to health and welfare of student-athletes leads us to the potentially significant consequences of the concussions-related litigation now directed against the NCAA. It’s not so easy being King!
What would you do as King of College Athletics?
Please contact me at mgilleran@scu.edu. Thanks.