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FENNO: Ed O’Bannon lawsuit ruling could hasten end of NCAA model
Pop quiz. Who wrote this?
"[The NCAA is] firmly committed to the neoplantation belief that the enormous proceeds from college games belongs to the overseers (the administrators) and supervisors (coaches). The plantation workers performing in the arena may receive only those benefits authorized by the overseers. The system is so biased against human nature and simple fairness in light of today's high dollar, commercialized college marketplace that the ever increasing number of primary and secondary NCAA infractions cases ... emerge in the current environment as mostly an indictment of the system itself."
So, the author of the most concentrated, damning, to-the-point takedown of the NCAA ever confined to one paragraph? Another reform-minded scribbler? A disgruntled former college athlete? A litigation-hungry attorney?
No, the verbal napalm came from none other than Walter Byers, the NCAA's executive director from 1951 to 1988. The father of the modern college athletics. The man who coined the student-athlete dodge to avoid classifying them as employees, then wrote a 1995 book excoriating the organization he helped guide into the $871.6 million behemoth it is today.
A meeting room is named after Byers at the NCAA's Indianapolis headquarters (recently augmented by a $40 million expansion). That's no small irony given the federal court challenge the organization faces that revolves around the idea of simple fairness.
On Thursday in U.S. District Court in Oakland, Calif., Judge Claudia Wilken will hear arguments on certifying Ed O'Bannon's long-running litigation against the NCAA into a class-action lawsuit. That could expand the lawsuit over the use of athletes' likenesses to all current and former Division I basketball and football players and lead to a trial with the possibility of damages running into the billions. The changes to the structure of college athletics could be seismic.
We're talking about a decision, expected later this year, that could forever separate the NCAA from the shroud of amateurism that cloaks every game, every tournament, every dollar. The shroud that allows the NCAA to avoid worker's compensation and payroll taxes for its pool of unpaid labor. The shroud that has led to six-figure salaries for administrators (seven figures if you're president Mark Emmert or coach basketball or football at any ordinary top-25 university) and a Cold War-esque arms race of ornate stadiums, weight rooms and practice facilities. The shroud that forces would-be athletes to sign rights away in exchange for a college scholarship that, in most cases, is renewed annually at the university's prerogative.
"This is the best chance for college athletes to finally secure basic protections and freedoms afforded to other Americans," Ramogi Huma, executive director of the National College Players Association that advocates for reform, wrote in an email Wednesday. "There is zero credibility in the NCAA's self-serving version of amateurism. It's time that college sports be modernized and the judicial system is the most realistic avenue for that to occur."
This is what the NCAA's idea of amateurism buys. Before competing, each athlete must sign a "Student-Athlete Statement" to be kept on file for six years. No negotiation. No option not to sign. The statement affirms, among other things, that the NCAA owns the rights to the athlete's name and image. Bylaw 12.5.
O'Bannon, for instance, sued after he found his image used in an NCAA-licensed video game long after his UCLA basketball career ended. The NCAA got the money from the game. He didn't. This is the sort of hypocrisy Byers railed against, as the NCAA, founded to protect the physical well-being of athletes, squeezes every last dime from them under the guise of education.
If athletes were to share in the proceeds from their on-field endeavors, well, the NCAA would have you believe college athletics will resemble some post-apocalyptic, zombie-infested wasteland. A slew of athletics directors, university presidents and conference commissioner asserted as much in a series of declarations filed earlier this year on behalf of the NCAA in the case.
Jim Delany, the Big Ten commissioner, insisted, for example, that even a hypothetical 50-50 revenue split with athletes would force his conference to adopt the Division III model without athletic scholarships. Each of his universities received over $25 million in payouts from the conference this year. The conference's television network is a veritable money-printing machine that will push the total higher in coming years.
More court records filed in the case revealed the Pac-12 pulled in $185 million from its television deal with ESPN and Fox in 2013, a total that will rise 5.1 percent each year through 2024.
T-ball is amateur. This isn't.
Suggest sending more of that windfall toward athletes, toward the product providing the value and — watch out! — the sky is tumbling down. The same tired arguments emerge, too, of one powerful, entitled group trying to keep resources away from another group with little voice and even less recourse.
The ruling from Thursday's hearing (the judge can certify all, part or none of the class) could pull down this rotted system. A system indicted by the man who helped create it. A system, really, indicted by itself.
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About the Author
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