LOUISVILLE, Ky. (WDRB) -- For the NCAA, this time is different. Even if it manages to skirt past its latest legal challenge -- a class-action lawsuit headed by former UCLA standout Ed O'Bannon over player likenesses and compensation from EA Sports video games -- the winds of amateurism are changing.
And the NCAA helped stir them.
A steady drumbeat for player compensation has begun, and it's difficult to see how the NCAA will turn it back. On Thursday, the NCAA's co-defendants in the O'Bannon suit -- Collegiate Licensing Corporation and EA Sports -- settled with the class in an arrangement that has yet to be made public but likely will result in significant money being paid to more than 100,000 former NCAA athletes and presumably some current ones.
Public calls to compensate players are growing. Twenty-eight players from three different schools sported the letters "APU," for "all players united," in various ways on their uniforms during games last weekend. The move was orchestrated by the National Collegiate Players' Association, an advocacy group whose math may be fuzzy but whose goal is not -- to obtain players a share of the growing college sports pie. The action received national publicity, and further sparked the debate over compensating players -- a debate that only gained steam with the Johnny Manziel autograph controversy and an expose at Oklahoma State by Sports Illustrated.
How did the NCAA get to this point?
For most of its history, the courts have respected the role of the NCAA in governing college sports and in providing a level playing field behind the principles of amateurism and education.
The first crack in the NCAA's hold on its membership came in 1984 when it was sued over its iron-fisted control of college football television broadcasts. The U.S. Supreme Court found it had restricted trade and violated Antitrust Law. To that point, the NCAA had seemed immune from antitrust concerns.
The case, however, established an interesting precedent. The courts differentiated between the NCAA's role in establishing rules and its role in "purely commercial" interests. A distinction was made between commerce and competition. Writing for the Marquette Sports Law Review in 1999, Richard Hunter and Ann Mayo pointed out, "The Supreme Court noted that in the absence of any special circumstances, 'competition rules' would be uniformly upheld by a court, but those dealing with 'commercial issues' would come under careful judicial review."
Since that ruling, and in fact, that law review article 14 years ago, the actions of the NCAA have been driven to a great degree by commercial interests. When the Supreme Court broke the NCAA's grip on college football television money, the media revenues that trickled in at first have today grown to a flood. Texas has its own network, as does the Big Ten. The Southeastern Conference and ESPN have agreed to network terms and for all of the major conferences, the revenue over time runs into the billions of dollars. The NCAA itself negotiated a 14-year, $11-billion deal for its men's basketball tournament just three years ago.
Simply put, there's too much money involved now to justify the level of compensation that players are receiving. When the revenues were modest, the idea of players receiving money was ridiculous. With revenues now in the hundreds of millions, the idea of players receiving money seems only right.
For the NCAA to navigate this threat, it will have to convince the court that its handling of its financial affairs isn't just a commercial responsibility, but one tied to its very role in keeping a level playing field.
For instance, the NCAA in 1997 placed a limit on what athletes could earn per season in outside jobs apart from their scholarships. To remove that limitation, as ESPN's Jay Bilas and others have suggested, would be one way to deal with calls for a more fair system. It also could open the door to widespread abuse by the power schools whose boosters are willing to pay big money for bogus jobs. The NCAA, then, will have to defend this commercial move by tying it to a competitive governance necessity.
"The U.S. Supreme Court and numerous lower courts have determined that the NCAA's amateurism rules are fully consistent with the nation's antitrust laws," the NCAA wrote in a legal brief in March.
But if players begin to aggressively pursue their rights, defending the NCAA's traditional position may be more difficult, given the amount of money involved and the increased commercialism of its operation.
The NCAA hasn't always helped itself. Listen to some of its court statements.
Donald Remy, NCAA executive vice president and general counsel, on O'Bannon et al: "Plaintiffs want the court to believe that student athletes are the same as professional athletes and unionized employees – which is pure fiction. We are confident that plaintiffs will find no more success in this case than they have in past cases."
There's a tone of arrogance in the statement.
Erik Christianson, NCAA director of communications: "To claim the NCAA profits off student-athlete likenesses is . . . pure fiction."
Turns out, that Christianson statement in 2010 may have been the fiction. In 2013, NCAA president Mark Emmert had to backtrack when a simple search by Jay Bilas found that the NCAA was selling replica jerseys of current players on its own website. In ending the practice, Emmert said, "I think seeing the NCAA sell those kinds of goods is a mistake. It's not what the NCAA is about. So we're not going to be doing that any longer."
The players' cause has received a shot in the arm from the NCPA and Drexel University, with a 2011 study titled, "The Price of Poverty in Big-Time College Sports." It claims the average student-athlete owes as much as $3,222 per year above the cost of his or her athletic scholarship. Unfortunately, to call this a "study" is to give it more weight than it deserves. It vastly overstates the problem, and uses insufficient and sometimes downright incorrect data to arrive at revenue assumptions that are outright wrong. Moreover, its unfortunate use of "poverty" in talking about big-time college athletes is irresponsible.
Nonetheless, the drumbeat is getting louder.
I'm reminded of big tobacco. For years, it avoided costly verdicts from those who sought to prove that loved ones had been killed by cigarette use. Then it began to have to settle lawsuits. Then it began losing suits, and being hit with massive verdicts.
The NCAA isn't killing anyone. It may even prevail in its legal challenge from O'Bannon. At least, it will try. It has hired new counsel and dug in even as co-defendants have settled. But if it does not, it could face more, and more costly, challenges ahead.
What the NCAA can't do is win the public battle. While the "pay the players" movement may not yet be a majority of fans -- and that's an interesting debate in itself -- the number of fans dissatisfied with the NCAA who want to see players at least receive some type of compensation appears to be growing, and there would seem to be little the NCAA can do to curb it.
If the NCAA wishes to avoid having the courts set the terms of how players will be compensated, it needs to begin the process of determining that itself.
Everybody involved with college sports has been chasing the money for years. The NCAA does it. You can't walk outside an NCAA media room at a basketball tournament game unless your drink is in a cup provided by one of the NCAA's corporate sponsors. They post monitors to make sure of it. They have chased the money as hard as anyone.
Conferences do it. The latest round of realignment wasn't prompted by academic or competitive concerns, but by the ability to generate the most television revenue. ESPN, in fact, had a role in some of the realignment decisions, according to one ACC athletic director. Consider this. The Big Ten Network has 51 percent ownership by the Big Ten Conference, which pays no taxes, while the 49 percent owned by FOX is taxed as any business would be. What's the difference between the two entities? Why should one avoid taxes and the other pay them?
Universities do it. The behavior of college presidents throughout the realignment drama has been roundly criticized, and rightly so. They're as hungry for the media money as anyone.
The media does it. ESPN threw money at the major college conferences in order to secure their broadcasts. It owns most major college bowl games. When ESPN personalities complain that the system is not being fair to unpaid college athletes, the cry rings a bit hollow. ESPN makes the stars. It talks about Johnny Manziel ad nauseam. If his name and likeness have value, that value is in large part created by ESPN. If there weren't a Johnny Football, the network would find someone else to celebrate. It's one problem with the pay-the-players crowd. You could remove the players from Louisville or Kentucky's basketball roster and put new ones in their places, and the teams still would draw 20,000-plus on basketball game days. A recent study touting the average "worth" of college players at various schools is ludicrous. A few have worth that they could get on the open market. The vast majority of college athletes do not.
Coaches do it. Coaching salaries often dwarf the budgets of entire academic departments. And they continue to grow.
Is it any surprise, then, that if everyone in college sports is chasing the money, that players eventually would do the same thing? They're simply following the example set for them by the adults who run their sports.
College sports need a strong governing body. The courts have repeatedly agreed that the NCAA, as a voluntary organization of member schools, has the right to govern its sport and protect its competitive integrity. The challenge for the NCAA is going to be tying that role to its various financial restraints in a way that the courts will accept.
But the winds are changing. And the amount of money involved may have grown to so great a level that even the NCAA's long-held power may not be able to fight back public perception and organized player demands. If so, the NCAA and its member conferences are only reaping what they have sowed.
The NCAA has been reacting to challenges for years. If it wishes to remain in the forefront of college athletics, the time has come for it to get in front of this issue, or be run over by it.