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….”