Strong Sauce: Amateur Hour; The Lawsuit That Could Change College Athletics Forever

Saturday, March 15, 2014 - by Michael Lawson
As we gear up the March Madness machine, with all of the hyperbole that the desk jockeys at ESPN can muster and the undecipherable noises that pass for commentary from the likes of Bill Raftery, something on the horizon looms large in consequence. There are two sides to the coin that is The NCAA Men’s Basketball Tournament, and really, college athletics in general. On the one side…it is a place and event where dreams come true…where David can slay Goliath…where the little school that could gets the opportunity to show if it truly can. The drama, the drive, the desperation of “lose and go home”…or win and the impossible becomes a less hazy maybe. It’s a beautiful spectacle of a human play thrown out before us in real time…with all of the emotions that we carry with us in our lives…love, passion, closeness of kinship, pain, joy, elation, failure, loss, and victory. This is why we watch. This is why so many of us watch. But there is another side to it that exists…and it is directly because so many of us watch this passion play of sport that it does. When millions of people pay acute attention to something, their dollars follow with them. Millions of viewers turn into billions of dollars, and the business of the art becomes a thing unto itself. Couple this with the inestimable business that is college football and you have a national power player in the NCAA organization whose reach transcends sport into politics and law. That relationship and reach is currently being tested in courts through a lawsuit that few have heard of or understand. The central question of this lawsuit strikes at the heart of what college athletics is supposed to be about….the student-athlete. How do we define “amateur”? Should players get paid to play?

Before we get into the specifics of the case, which I’m not even sure I can do justice here, let’s acknowledge that there are no easy answers to this problem or question. Depending on one’s experience and background, opinions will vary. At the heart of this issue is the question of whether student-athletes deserve of piece of the money pie. Should the kids who bust their butts every single day be rewarded monetarily for their hard work that brings billions of dollars to the NCAA, and tens of millions of dollars to their respective schools, funding university bank accounts and seven figure salaries for Administrators, Athletic Directors, and Coaches, or should they be happy with a free education and the security of a future that most students do not enjoy? That’s it. That’s the question. Seems simple, but it isn’t. When this topic is broached with my friends or colleagues on 101.3 FM, lines are drawn and positions are defended with vigor and moral certainty. This is the “2+2” version of this question, however, and the pending class action lawsuit is a polymorphic algorithm that could redefine the whole equation.

Ed O’Bannon and his brother were an integral part of the 1995 NCAA Men’s Basketball National Championship team. He didn’t have much of an NBA career, and had pretty much receded back into anonymity and personal life. Apparently, one day he was playing a video game, as most do these days, and was amazed to see his face, number, and name on the game as his 21 year old self at UCLA. The game, produced by EA Sports, through an exclusive contract with the NCAA, had a “legends” function so the gamer could play with his or her favorite champions from yesteryear. As a fan, I loved this function…I could be Domonique Wilkins and win a championship.  O’Bannon, from reports, was both surprised and dismayed. How could EA Sports, and the NCAA, use his likeness, and make tons of money, without getting his consent or offer compensation? In short, this was the catalyst for the current courtroom conflagration.

The lawsuit, as one might imagine, is so much more complicated than the simple issue of should players get paid. It addresses the byzantine and draconian array of rules and regulations that govern the relationship between the student-athlete and his or her university. When one plays an NCAA sport, the athlete is required to sign a waiver that relinquishes his or her right to make money off of his/her likeness as an NCAA athlete. On the face of it, that sounds reasonable. Who wants people like Johnny Manziel or Tyrann “The Honey Badger” Mathieu on TV hawking everything known to man just because they play college football? I don’t. We get enough of them as twenty year olds, as it is, thanks to 24 hour sports coverage. Yet, none of this, most likely, would be an issue if the NCAA had only used images of current players. What’s the likelihood of a current fully funded student-athlete suing the very organization that decides eligibility? Not likely. Yet, the NCAA and EA Sports got greedy, and decided to include former players in its game, as well as current players…and here’s the rub.

As with most things where litigation is involved, the issue has widened and deepened from its original scope. The central question now is…who owns a person’s image?  How long do they own it and who gets to decide how much that image is worth? There are also questions involved, more legal in nature, where the answers are incredibly important. The Sherman Antitrust Act of 1890 was passed with the hope of ensuring that people get paid what their work is worth, among other things. O’Bannon is arguing that, if the NCAA didn’t force him to sign said pledge, he could have been compensated from other video game companies for his image. The fact that he couldn’t meant that the NCAA fixed the value of his image at zero, and that would seemingly contradict our Antitrust laws. In addition, there are Title IX issues involved. Title IX is a part of the Education Amendments of 1972, and later amended in 2002, that was written to prevent discrimination, based on gender, in sports. Because some sports make more money than others, some schools are ending minor men’s sports to comply with Title IX regulations establishing an equal number of men and women’s sports teams on campus. If we define how much each player is worth, based on how much money they bring in, where does that leave women’s field hockey, for example? Under Title IX do they have cause if the members of a men’s basketball team each get more money, if paid for their work? If we affix a value to the work and image of current players, and play them accordingly, do they then become employers of the school and/or state? If so, do OSHA work place laws go into effect? Do schools then have to comply with new regulations like the Affordable Care Act (sometimes referred to as Obamacare)? Big questions with answers that only lead to more questions.

 This will all be decided beginning June 9, 2014, as the case moves to court, since the presiding judge has denied attempts to stop the case from moving forward. The outcome of this case, and the wording used in the judgment, will affect college athletics forever, yet fans seemingly have no idea. The media has done a poor job in reporting this, in my opinion. The questions involved are questions that go well beyond what happens on the field or court, but are the kind that could morph what we’ve adored and loved for so long into a completely different thing. Should these kids get paid? I don’t know, really. It seems unseemly that old men get rich off of a business on the backs of 18-22 year olds, while most of the kids fade away after college is over. Very few of them play sports professionally. On the other hand, a fully funded, first rate education at an American institution of learning is valued somewhere around One Hundred Thousand dollars. That’s significant, and something that most students wish were their reality. How this issue is resolved, and the response by the NCAA to whatever judgment is handed down, will affect any and every college sport you may enjoy…and the relationship between who we are, how much we are worth, and who deserves it, is the key. Heavy questions for a thing that is supposed to be fun…and amateurish.  As the great Bob Dylan wrote, “Money doesn’t talk…it swears.”

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