The O’Bannon Case

I finally got around to reading all of Judge Claudia Wilken’s 99 page verdict in the O’Bannon v. NCAA case. You can entertain yourself with it here.

By now everyone knows that the NCAA lost and that the NCAA will appeal the decision. What this means for the long term structure of the NCAA and Division I universities’ relationships with athletes will likely not be clear for some time. I just wanted to comment on a few of the findings:

  • The judge found that there was no viable alternative to Division I athletics for the recruits. She diminished the role professional European Leagues have begun to play in competing for basketball players straight out of high school. This trend started with Brandon Jennings and is most recently evidenced by Emmanuel Mudiay’s decision to skip college in favor of playing professional basketball in China. I don’t totally disagree with the Judge’s opinion, particularly with respect to football, but high school basketball players do have the legitimate option to join professional leagues rather than play Division I basketball.
  • On page 22 of the opinion, the Judge states that after the “recruit’s decision to attend and play for a particular school, the school provides tuition, room and board, fees, and book expenses, often at little or no cost to the school.” Yes, the schools do provide these things for the athletes but they also provide other amenities, academic support, training, equipment, counseling, etc. that simply aren’t available to the general student population. To act as if there is no other benefit for the athletes other than tuition and room and board is naive at best.
  • Apparently the NCAA did a terrible job presenting their evidence. The Court tore the survey the NCAA conducted, in an effort to show people liked Division I sports because of amateurism, to shreds.
  • After the plaintiffs satisfied their initial burden, the NCAA had to show, among other things, the regulations placed on universities regarding the benefits they can give athletes have the effect of balancing competition. The Judge did not buy the NCAA’s argument at all: “The only quantitative evidence that the NCAA presented related to competitive balance is a cursory statistical analysis … comparing the levels of competitive balance in [Division I] to the levels in the NFL and NBA….his analysis does not suggest that the NCAA’s challenged rules actually produce the levels of competitive balance he observed.” p. 36. The Judge stated that instead of spending money on the athletes, the colleges spend the money on recruiting budgets, coaching salaries, and facilities. She believes that this “cancels out whatever leveling effect the restrictions placed on student-athlete pay might otherwise have.” I have to strongly disagree with her on this point. While it is not in front of the court, if there were no salary cap, what it is in effect, then the elite of the elite would create even wider gaps between the conference bottom feeders and non-power 5 schools. In my opinion, you would wind up with Alabama, Texas, USC and schools of that ilk being completely dominate. While those schools might have nicer weight rooms and facilities, there is only so much value a recruit can place on that. Instead, if the recruit were offered a 5k dollar stipend to go to Mississippi State and a 50k dollar stipend to go to Alabama, there is little question that the money difference has the ability to change the recruit’s mind more than any difference in facilities. On page 63, the Judge recognizes that without the current restrictions, “schools would compete against one another by offering to pay more for the best recruits’ athletic services….” However, she did not find that such bidding would create unfair competition. I find that conclusion naive as well.
  • Along the same line, the NCAA’s expert failed to convince the judge that competitive balance even had an effect on the popularity of college sports: “his analysis did not show that consumer demand for [Division I sports] would decrease if [the] teams were less competitively balanced than they currently are.” p. 84. Obviously the NCAA’s expert failed in convincing the judge that a substantial portion of the popularity is due to the parity of the sports. I also find this conclusion unavailing and unrealistic.

Some of the Judge’s highlights and lowlights:

  • “In short, non-FBS and non-Division I schools do not compete with FBS and Division I schools…on the football field….”p. 53. She obviously missed Georgia Southern’s upset of Florida in November.
  • On pages 80 and 81, she bashes the NCAA for their inconsistency pointing out that a tennis player may maintain his amateur status even though he accepts up to 10k the year before enrolling. Yet a track and field athlete would forfeit his eligibility by doing the same.
  • Although the NCAA maintains this rule promotes competitive balance, the Judge notes on page 91, that a more simple way to do this would to be to spread the money between Division I schools equally. Instead, “its current formula primarily rewards the schools that already have the largest athletic budgets. This uneven distribution of revenues runs counter to the association’s stated goal of promoting competitive balance.”
  • The Judge states that the schools and the NCAA are converting (stealing) athletes’ rights by selling the right to use the athletes’ names, images, and likenesses to television networks: The schools give the networks assurances that they have the legal right to sell the likenesses and “Such assurances might constitute conversion by the schools of the student-athletes’ rights, or otherwise be unlawful….”

Follow-up on the “Baseball Rule”

Last week I posted about the recent Georgia Court of Appeals case revolving around a fan being injured by a foul ball. This led me to do some investigation of some similar claims.

In 2003 the Georgia Court of Appeals held that neither the Braves nor Andruw Jones were responsible for a ball thrown by Jones into the outfield stands between innings.

In reaching their decision, the Court cited a case from 1949 which stated “[O]ne who buys a ticket for the purpose of witnessing a baseball game and who chooses or accepts a seat in a portion of the grandstand which his own observation will readily inform him is unprotected, voluntarily assumes the risks inherent in such a position, since he must be presumed to know that there is a likelihood of wild balls being thrown and landing in the grandstand or other unprotected areas.” Dalton v. Jones, 260 Ga. App. 791, 792 (2003) (citing Hunt v. Thomasville Baseball Co., 80 Ga.App. 572, 56 S.E.2d 828 (1949)).

In other words, the plaintiff assumed the risk that a ball may be thrown into the stands and cannot recover for an injury sustained by such a throw. Will the Court differentiate a thrown ball from a batted ball? Or differentiate between the location of the seats?

As I head out to the ballpark tonight, I hope nobody in attendance has to confront these questions!


Georgia Court of Appeals Refuses to Adopt the “Baseball Rule”

On July 11, 2014, the Georgia Court of Appeals allowed a suit against the Atlanta Braves to proceed.

The suit centers around a Melky Cabrera foul ball that entered the stands near the third base dugout and fractured the skull of a young girl. At this juncture of the case, the Court declined to adopt the “Baseball Rule”.

The “Baseball Rule”, which has been adopted by courts and legislatures in some other states, allows the owner of the stadium to escape liability for foul balls entering the stands as long as the owner screens the most dangerous section of the field (the area directly behind the plate) and provides enough seating in the screened area for patrons who may wish to sit there (see footnote 3 of the opinion linked below).

While the Court  refused to adopt “Baseball Rule” at this stage of the litigation,  it is unclear whether they will do so should this case return after trial.

There is no question that the area the plaintiffs were sitting was dangerous. Should the patron assume the risk of sitting in such places at a ballpark or should the club be required to take more steps to protect the fans? It will be interesting to see if this case goes to trial and, if so, what direction the Court will take should the verdict be appealed.

The other  night at the Greenjackets game I sat in a similar place to where the girl was sitting. There isn’t netting and I know it is dangerous. I feel as long as there is the opportunity to move from to an area behind the netting around home plate that a stadium shouldn’t be required to protect me from foul balls or bats that enter the seats.



Football and the USPTO

As football season approaches, I was reminded of a Trademark Trial and Appeal Board decision of 2013 involving the University of Alabama, Bear Bryant’s son, and Houndstooth Mafia Enterprises. Houndstooth Mafia sought to have the mark shown below officially trademark. Alabama and Bear Bryant’s son opposed the petition on the basis that they extensively use the houndstooth pattern in their marks and particularly in promoting Bear Bryant’s legacy. The TTAB sided with the company, and found, among other things that Bear Bryant never used the houndstooth pattern as a trademark. Until now, last year was the last time I thought about “Houndstooth Mafia”. After running a search recently (and expecting to find houndstooth mafia merchandise), I was surprise to find that Alabama filed a suit in federal court in Birmingham to try to reverse the TTAB decision. Apparently the parties have settled the matter and Alabama now holds all rights to the Houndstooth Mafia mark. Here is an article about the settlement. I am sure there are many disappointed Alabama fans that were hoping to become part of the exclusive houndstooth mafia this football season. Are there any enterprising individuals out there willing to create the Orange Pants Mafia for Derek Dooley?