Tag Archives: O’Bannon

The Death-Sentence of Amateurism in the NCAA?

December 13, 2015

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By Kyle Sandulescu – Thompson Rivers University JD Student

When the NCAA was established in 1906, it was designed to entrench the principal of “a sound mind in a sound body” at institutions of higher learning in America. The bargain was that NCAA agreed to protect the health and well-being of its student-athletes, on the agreement that the student-athletes withdraw their right to profit from their athletic endeavours in any way. In short, the NCAA was established under the belief that men and women could enrich their lives through the amateur student-athlete experience.

Over 100 years later, the NCAA has become an oft-criticized figure of manipulation and a far-cry from an ambassador of amateurism in sport. The NCAA is an apparent hoax; a regulatory body designed to protect student-athletes while dealing at arm’s length with commercial enterprises who profit from their marketability.

The late Myles Brand, director of the NCAA from 2002-2009, defended the economics of college sports by claiming that they were simply the result of a smoothly functioning free market. However, the market is not free because there is unequal bargaining power between the NCAA and the athletes who provide the NCAA with its product.

The argument to be made is that the NCAA has clearly been overcome by the commercial forces that surround college sports to the detriment of the student-athlete. Lawsuits have exploited the NCAA’s unwillingness to protect student-athletes who suffer from long term injury, while the NCAA throws its rulebook at its athletes for even the most minor infractions resulting in a “profit” from their college athletic careers. Evidently, the NCAA has balked on protecting athletes from commercial exploitation because they are afraid to bite the hand that is their sole source of authority – the member institutions.

Section 2.9 of the Division I Manual of the NCAA states the principle of amateurism rather amiably: “student participation in intercollegiate athletics is an avocation, and student-athletes should be protected from exploitation by professional and commercial enterprises.” However, it is hard to understand the rationale for the principal of amateurism when the NCAA signs mega-broadcasting deals worth over half a billion dollars for NCAA football and basketball while major sponsors hammer on the doors of member institutions to ensure that the top programs and players are hyping their brand.

The outspoken Taylor Branch once said in his now infamous article, The Shame of College Sports: “The tragedy at the heart of college sports is not that some college athletes are getting paid, but that more of them are not.”
Adopting Branch’s position, it is hard to make a straight-faced argument that the principal of amateurism is being abused to serve a commercial purpose. In recent memory the courts have been more willing to confront this issue head on. The US Court of Appeals for the Ninth Circuit in O’Bannon v NCAA upheld a district court’s decision that NCAA amateurism rules violate antitrust laws saying that “the NCAA’s rules had significant anti-competitive effects within the college education market.”

O’Bannon makes it clear that the NCAA’s principle of amateurism is being used to regulate a commercial activity, while the NCAA has continued to rely on the decision in NCAA v Board of Regents of the University of Oklahoma, which stated that “to preserve the character and quality of the product, athletes must not be paid.”

Criticizing the NCAA’s principal of amateurism should make us uneasy because it largely epitomizes a departure from the ideal that the outcome of the sport was determined by the skill of players and not the cheque books of their institutions. Given the evolution of college sports into the mega-industry it is today, the NCAA would be wise to take advantage of the opportunity to legitimize the concept of amateurism in the wake of commercial realities.

At stake for the NCAA are billions of dollars in revenues and licensing fees if the NCAA cannot demonstrate that it is capable and willing to protect the health and well-being of student athletes. The principal of amateurism can therefore be re-tooled to reflect the need to protect athlete’s from injury, perhaps deflecting the accusations that the NCAA has essentially sold out the health of their athletes for the commercial interests of member institutions.

 

 

 

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March Madness or March Sadness

October 5, 2015

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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.

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Does the O’Bannon decision shake the foundation of the concept of amateurism in sport?

October 22, 2014

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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.

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