By Sangin Safi – Thompson Rivers University 3L JD Student
In the ever-continuing saga of Ed O’Bannon’s battle against the National Collegiate Athletic Association (NCAA), the United States District Court Judge, Claudia Wilken, delivered a judgment on August 8th, 2014 that has the potential to shake the foundation of NCAA’s principle of amateurism in sport (i.e. no compensation for its student athletes).
In the 99-page decision, Wilken issued an injunction against a ban on payments to players for the commercial use of their names, images and likeness (NILs) in things like video games. The ruling also allowed the NCAA to cap the payments at $5,000 per year. What this means is that athletes will now be able to share in some of the multi-million dollar revenues that the NCAA generates annually. Although the ruling definitely puts a dent on NCAA’s principle of amateurism, analysts and commentators are divided on whether the ruling completely shakes the foundation of the principle. Specifically there seems to be a divide with respect to the potential future implications of the decision.
On the one hand, there are commentators that claim the ruling completely destroys amateurism in college sports. For example, Forbes magazine contributor Matt Powell states, “…the Wilkens (sic) ruling clearly destroys the ‘collegiate model’ thesis. Any pretense of amateurism…is now over.” Powell believes that the $5,000 annual cap on compensation will not hold for long. He further believes that players will also be “freed from the silly enforcement rules like the prohibition of selling memorabilia on EBay” and he even contemplates whether player endorsements might be something of the future.
On the other hand, there are commentators that insist that the reach of the decision should not be overstated. For example, contributors at The New York Times maintain that although NCAA was the clear loser in the case, the decision should not be overstated. According to them, “[p]ost-O’Bannon collegiate athletics won’t operate according to free-market principles. Far from it. Players did not win the right to sign endorsement deals.” They also note that the NCAA may keep the $5,000 annual payments in a trust until players graduate or leave. Therefore, according to the contributors, although the NCAA will have to adjust to the new order, the decision does not completely destroy amateurism in sport.
Although the cautious position by The New York Times is a safe one to take, the August 8th ruling definitely clears a wide path for future litigation against the NCAA with respect to student athlete compensation. As Jon Solomon of CBS Sports notes, there is currently a looming lawsuit being brought by a prominent sports attorney, Jeffery Kessler, who is seeking a free market for college recruits. The O’Bannon ruling is surely to boost the confidence of Mr. Kessler in pursuing vigorous arguments in support of further student athlete compensation.
Furthermore with the August 8th decision, a federal judge has now confirmed that college sports are indeed a big money making enterprise; therefore it is inconceivable that the NCAA can continue to make multi-million dollars in revenue without sharing some of it with the value drivers of the business, the student athletes themselves. Indeed, one could sense the rise of a new area of unjust enrichment within the context of lex sportiva (i.e. sports law).
Although the NCAA is currently appealing the decision, the August 8th ruling definitely sends a strong message to everyone that the NCAA can’t hide behind the cloak of amateurism and continue to earn big money. As the saga of Ed O’Bannon continues, and likely to be followed by other lawsuits, the amateurism model simply cannot be sustained in college sports in the long run.