Antitrust, Basketball, Football, Sports

Why The NCAA Didn't Really Lose Yesterday

Judge Claudia Wilken's decision ripped the NCAA but didn't offer much to the student-athletes.

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Most everyone is talking about how the NCAA got crushed in the antitrust case headlined by former UCLA star Ed O’Bannon. Some have compared it to a top ranked team getting upset by a scrappy mid-major because sports analogies are obligatory when talking about sports cases. That analogy is not really apt. It’s more like the NCAA was a top ranked team that narrowly eked out that win. The mid-major team is rightfully pleased with its effort and the top team can breathe a sigh of relief.

But hanging ominously over the field is that the top team done got EXPOSED. And every team remaining on the schedule is psyched.

Judge Claudia Wilken’s 99-page opinion reads like a body blow to the NCAA — and then her order is a light knee scrape. But everyone else gunning for the NCAA has a lot to quote here….

The NCAA’s practice of denying student-ath-o-letes any compensation for the use of their names, images, and likenesses (NIL rights) violates the Sherman Antitrust Act. When the NCAA tried to justify its rules, it got ugly.

Amateurism, the gold standard of bulls**t arguments for the NCAA, got thrashed beyond the point of recognition. The NCAA would be best served not to trot that one out again. Judge Wilken locked in on the constantly shifting definition of amateurism:

A Division I tennis recruit can preserve his amateur status even if he accepts ten thousand dollars in prize money the year before he enrolls in college. A Division I track and field recruit, however, would forfeit his athletic eligibility if he did the same. Similarly, an FBS football player may maintain his amateur status if he accepts a Pell grant that brings his total financial aid package above the cost of attendance. But the same football player would no longer be an amateur if he were to decline the Pell grant and, instead, receive an equivalent sum of money from his school for the use of his name, image, and likeness during live game telecasts. Such inconsistencies are not indicative of “core principles.”

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Well, no, that doesn’t seem like a “core principle.” The NCAA also tried desperately to prove that amateurism makes the sport more popular using an opinion poll. A really shoddy opinion poll:

In addition, numerous respondents provided internally inconsistent responses to different survey questions. Eighty-three of the respondents who said that they favored paying student-athletes also stated that they would be less likely to watch, listen to, or attend games if student-athletes were paid. Another thirty-three respondents stated that they opposed paying student-athletes but said that they would be more likely to watch, listen to, or attend games if student athletes were paid. These responses suggest that some respondents did not understand or did not take seriously some of the survey questions and illustrate the limits of Dr. Dennis’s conclusions.

This was the best the NCAA could do. Remember the premier defense expert wrote a textbook calling the NCAA a “cartel.” There are many defense attorneys on this case and most of them apparently went pro in something other than trial prep.

But while she eviscerated the NCAA’s arguments, Judge Wilken’s opinion offered tepid relief:

1. The NCAA can’t prevent schools from offering scholarships that cover the full cost of attendance. Right now schools can’t give students money for the incidentals. So no more hearing about players unable to buy food away from the school cafeteria.

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2. The NCAA cannot prevent schools from compensating athletes for the use of their NIL rights via trust funds that pay the players after they leave school. BUT, the NCAA can put caps on how much athletes can make as long as that cap is not less than $5000/year.

So… athletes will only make $5000/year. That cap will be in place within hours. Maybe the power conferences will fight for a higher limit that only they can afford, thus giving themselves a(nother) permanent recruiting advantage over everyone else, but let’s not underestimate pure greed.

Judge Wilken declined to wander down the road of allowing the players (or intermediaries) to pursue group licensing of NIL rights. She said there was no evidence that a competitive market would exist for those rights basically because the game would need to secure rights from every team and students wouldn’t compete against each other to sell their rights because they’d all have an interest in getting the game made. She kind of misses the whole point of O’Bannon’s suit here because what kicked this whole thing off was Ed O’Bannon specifically complaining about the NCAA licensing him in a game almost 20 years after the fact. Videogames may need all the NIL rights of current squads, but a game doesn’t need to have every “Classic Team.” The 1995 Bruins players absolutely would demand a higher price to be in a basketball game made today. The NCAA restrains that market.

There are more lawsuits on the horizon. Jeffrey Kessler’s suit is going for the NCAA’s jugular. Even though Judge Wilken’s decision is limited, her thorough evisceration of the NCAA’s stock arguments will be peppered throughout Kessler’s filings from here on in.

And dicta like this:

Such assurances might constitute conversion by the schools of the student-athletes’ rights, or otherwise be unlawful, but they are not anticompetitive because they do not inhibit any form of competition that would otherwise exist.

The federal judge who just watched the most comprehensive trial on NCAA practices felt obliged to just, you know, volunteer that she has a sneaking suspicion that the NCAA is engaged in theft.

That doesn’t bode well.

Judge Wilken’s complete decision is available on the next page…

What Everyone Should Know About The NCAA Trial [ATL Redline]

Earlier: Dumb Broad Judges Ruin Sports Best
NCAA Bigwigs Threaten To Slash College Sports If They Can’t Have Free Labor
NCAA Scores Victory In O’Bannon Suit
Current Real Players Join The Lawsuit Against NCAA, They’ve Always Been In The Game
Amateur Athletics Is A Sham. Girlfriend Don’t Care.
Ed O’Bannon Might Kill the NCAA But Not The System

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