By Christine Purewal – Thompson Rivers University 2L JD Student
One of the most sacred annual traditions in US sport occurs as winter wanes and spring looms on the horizon – March Madness. March Madness 2015 is a near-month long collegiate basketball championship tournament that brought in over 10 million views worldwide and more than $1 billion dollars in revenue.
Athletes participating in National Collegiate Athletic Association (NCAA) sports are not considered professional athletes. The 440 page NCAA manual refers to these student athletes as amateurs. Despite such a contentious characterization, March Madness brings in more revenue than the Super Bowl. Such high revenue and viewership is made possible because every aspect of the tournament is branded.
Despite such limitless branding, NCAA President Mark Emmert maintains that the NCAA is not a moneymaking industry. It is directly stated on the NCAA official website that “the association’s belief in student-athletes as students first is a foundational principle”. This principle has formed the basis of President Mark Emmert’s argument that amateur athletes should not be compensated for their participation in NCAA sporting events or tournaments. During his testimony for Wilkins v NCAA, President Mark Emmert stated that student athletes are not employees and to pay them would change the very nature of the game.
President Mark Emmert’s contention regarding the compensation of student athletes came under scrutiny when Ed O’Bannon filed a lawsuit against the NCAA for the use of images of its former student athletes for commercial purposes. District Judge Claudia Wilken ruled in favor of Ed O’Bannon and made several findings that would impact the future of the NCAA and its athletes. Firstly, she held that NCAA rules regarding restraint of trade were unreasonable and violated antitrust law. Secondly, she ordered that NCAA scholarships should be structured to include cost-of-living expenses, which were currently excluded. Finally, District Judge Claudio Wilken held that colleges should be permitted to put up to $5,000 in a trust for its athletes during each year of eligibility. The NCAA appealed Wilken’s ruling to the 9th U.S. Circuit Court of Appeals in San Francisco. No decision has been reached in the appeal.
Since the O’Bannon ruling we have seen a changing climate in the courtroom, whereby judges are increasingly questioning the NCAA’s stance and allowing more scholarship cases to be heard.
Most recently, in June 2015 Martin Jenkins, Nigel Hayes and Alec James filed a lawsuit against the NCAA and five major conferences. The injunction sought by the plaintiffs would allow a true free market for college athletes. However, in order to succeed the plaintiffs must challenge the NCAA’s argument that they comply with antitrust laws because they are functioning as a non-commercial entity with an educationally driven mission.
The NCAA’s declaration of being “educationally driven” began to unravel in 2015 when Rashanda McCants filed a class action lawsuit against the NCAA and the University North Carolina Chapel Hill. The lawsuit brings to light the decades-long academic scandal at UNC surrounding “paper classes”. McCants contends that student-athletes were directed towards programs and courses with little rigor in attempt to free their schedules for athletic commitments. In some instances, student athletes were enrolled in non-existent classes within the department of African and Afro-American studies. It is a combination of these factors which McCants claims deprived her of a meaningful education; a meaningful education being of the upmost importance since less than 2% of NCAA student athletes goes on to play professionally.
Given the emergence of these more recent cases, it appears that the climate for student-athletes has not completely changed following the O’Bannon ruling. Although there is a wider acceptance to hear cases regarding the NCAA and possible antitrust law violations, any substantial change to the structure of the NCAA will be a slow process. This is in part due to the flawed system in which the NCAA operates. The system is structured in such a way to maximize revenue through extensive branding and the exploitation of its athletes. It is a combination of these factors which have turned the NCAA into a moneymaking industry.