NCAA President out of touch – by Jordan Kobritz

O'Bannon case alleges NCAA violates federal anti-trust laws

Jordan KobritzIf you want to know why the NCAA is out of touch with the rest of the country all you have to do is look at the testimony delivered by its President, Mark Emmert, during his appearance as a witness in the O’Bannon trial last week.

The O’Bannon case is just one of a number of high profile lawsuits that have been filed against the NCAA during the past several years. The suit alleges, among things, that the governing body violates federal anti-trust laws by preventing athletes from selling their image rights to the highest bidder.

The primary plaintiff, Ed O’Bannon is a former UCLA basketball player. He sued the NCAA after seeing his likeness used in video games long after he graduated. Although the NCAA received a fee from video maker EA Sports, O’Bannon and other players didn’t receive a penny. The suit, originally brought against EA Sports and the NCAA, sought compensation for those publicity rights. However, the compensation claim for past activities was dropped when EA Sports agreed to pay the plaintiffs $40 million and, on the eve of the O’Bannon trial, the NCAA agreed to pony up an additional $20 million.

But there’s no settling the anti-trust claim in the O’Bannon suit. The issue goes to the heart of what the NCAA claims to be and what it allegedly stands for: The protector of “amateurism.” That argument may be the second biggest sports related fraud perpetrated on the American people, second only to the insistence of the U.S. Supreme Court that MLB is merely a sport, not a business.

The O’Bannon trial has passed its mid-point and based on witness testimony and documents introduced to date, the prediction here is that the NCAA will lose, at least at the trial level. The governing body appears to be pinning its hopes on an appeal, hoping that higher courts will ignore the facts and decide in its favour based on the law. That strategy may prove successful, but so far the NCAA has taken one hit after another, none more devastating than the ones delivered by its own Grand Poobah, Emmert.

When asked by one of plaintiff’s attorneys why the NCAA couldn’t pay student athletes, Emmert responded: “To convert college sports into professional sports would be tantamount to converting it into minor league sports,” according to the AP. “And we know that in the U.S. minor league sports aren’t very successful either for fan support or for the fan experience.”

The response was a faux pas of monumental proportions, all but handing the plaintiffs a win. Emmert’s comments suggest that college sports are more “successful” than minor league sports because they have greater fan support and a better fan experience. If “amateurism” is about the student athlete, then academics should come first, not fan support and fan experience. Instead of focusing on the student athlete, Emmert highlighted the financial success and commercialization of college sports. The clear inference is that the NCAA is all about money, not the educational experience of the student athlete. Emmert’s testimony shows he doesn’t even know his own legal strategy.

Emmert’s comments regarding minor league sports set off a firestorm, particularly in Minor League Baseball. Pat O’Conner, President and CEO of Minor League Baseball, was quick to respond. Through a press release, O’Conner said that MiLB has annually drawn more than 41 million fans for almost a decade, a total greater “than the NFL, NBA, NHL and MLS.” O’Conner further noted that a family of four can attend a MiLB game for approximately $63, far less than the cost of attending a college football or basketball game.

O’Conner also emphasized that, “Minor League Baseball gives back to its communities. In 2013, MiLB and its teams contributed approximately $26.6 million in cash, in-kind and fundraising donations to deserving charities and groups.” I can confirm from firsthand experience that O’Conner is right; Emmert doesn’t know what he’s talking about.

Of course, not every minor league team in every sport is successful. However, the same can be said for college sports. For Emmert to claim that minor league sports are unsuccessful compared to college sports shows how out of touch with reality the NCAA is. And why prevailing in the O’Bannon case is a long shot at best.

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: Jordan can be reached at

© Copyright 2014 Tanna K, All rights Reserved. Written For: Tinytown Unleashed