Does this mean the NCAA is dead?
When I first began practicing law, a seasoned attorney gave me some sage advice. He said if the law was on my side, argue the law; if the facts were on my side, argue the facts; if neither the law nor the facts were on my side, pound the table.
Apparently, the attorneys representing the NCAA in the Ed O’Bannon case received the same advice as they repeatedly pounded the table throughout the trial in June because they had neither the law nor the facts on their side. Therefore, it was no surprise when presiding Judge Claudia Wilken announced her decision last Friday, a mere six weeks after the conclusion of testimony. And it was even less of a surprise that she found for the plaintiffs, ruling that the NCAA violated federal antitrust laws by restricting student athletes from earning money from their likeness and image rights.
What follows is a brief Q and A on the decision.
1. What did Judge Wilken decide? The key part of the ruling is an injunction that will prevent the NCAA “from enforcing any rules or bylaws that would prohibit its member schools and conferences from offering their FBS football or Division I basketball recruits a limited share of the revenues generated from the use of their names, images, and likenesses in addition to a full grant-in-aid.”
2. Does that mean that the NCAA as we know it is dead? No, Judge Wilken didn’t go that far – yet. There are other, more serious legal threats to the NCAA’s existence that are winding their way through the court system, at least one of which will be heard before Judge Wilken. It’s likely that the NCAA and its attorneys are looking forward to those cases like you and I would anticipate oral surgery.
3. Does this mean all student-athletes can earn as much as they want to from their likeness? No. The decision is limited to Division I men’s basketball and football players only. Furthermore, Judge Wilken allowed the NCAA to cap the amount of money each student-athlete could receive from their likeness on an annual basis, but not less than $5,000 per player per year. The money must be held in escrow until the student-athlete graduates.
4. Did the NCAA come away with any victories in the suit? Yes. The judge denied student-athletes the right to earn money from endorsements, saying she was concerned about the “commercial exploitation of student-athletes,” an argument advanced by the NCAA.
5. Will the case be overturned on appeal? The NCAA has the financial resources and determination to appeal the case all the way to the Supreme Court, if it agrees to hear the case. A recent study concluded that the NCAA wins approximately seventy percent of its cases on appeal. However, the O’Bannon case is very likely to fall in the thirty percent category. Judge Wilken was meticulous in her rulings throughout the trial, never hesitating to ask questions herself when she wanted more clarification, and her decision seems to be based not only on the evidence presented at trial but sound legal precedents.
6. What happens during the appeal? In her ruling Judge Wilken stated that the injunction against the NCAA would not be stayed, meaning that it will take effect with next year’s entering class despite the appeal.
7. Does the O’Bannon decision affect the recent NCAA vote to grant five super conferences virtual autonomy? In case you missed it, the day before the O’Bannon decision was handed down, the NCAA voted to give the Big Ten, Big 12, Pac 10, SEC, and ACC the freedom to set their own financial rules, separate and distinct from those that apply to the other 275 or so Division I colleges. The vote effectively creates a separate division within Division I, without calling it a new division. Those conferences were expected to adopt some of the reforms spelled out in the O’Bannon ruling, including covering the full cost of attendance, which currently falls short by as much as $11,000 at some schools.
While the O’Bannon decision doesn’t blow up the NCAA’s model, it can rightly be categorized as the first major chink in the governing body’s armor. However, with the O’Bannon decision as precedent, the next set of cases is likely to relegate that model to history.
Jordan Kobritz is a former attorney, CPA, and Minor League Baseball team owner. He is a Professor in the Sport Management Department at SUNY Cortland and maintains the blog: http://sportsbeyondthelines.com Jordan can be reached at firstname.lastname@example.org.
© Copyright 2014 Tanna K, All rights Reserved. Written For: Tinytown Unleashed