The NCAA gets jiggy in the O’Bannon suit.

The NCAA warns the judge in the O’Bannon case that if the players prevail, a bunch of schools will just take their balls and go home.

Lawyers for the NCAA wrote in a federal-court filing Thursday that if the association’s current amateurism rules were lifted, as proposed in a lawsuit pertaining to the use of college athletes’ names, likeness and images, some schools might exit Division I or Bowl Subdivision football because of the financial and legal burden that would result from needing to share revenue with football and men’s basketball players.

The assertion was backed by written statements from a group of conference and university executives, including the University of Texas’ top athletics officials, the chancellor of the California State University system and the presidents of Utah State and Wake Forest.

Texas’ argument boils down to this:  Texas makes money.  Texas doesn’t want to share what it makes.

Texas “has no interest in a model that would force us to professionalize two sports to the detriment of the balance of the athletics department’s sports, fitness and educational programs,” says a statement from Texas athletics director DeLoss Dodds and Texas women’s athletics director Christine Plonsky. Dodd and Plonsky oversee a program that generated a college-sports record $163.3 million in 2011-12, according to its recent financial report to the NCAA report.

Let’s face it – that’s how the rich stay rich.  And if the ‘Horns have no interest, why should we expect that any school should?  Summary judgment, and be quick about it, my good jurist!

If that’s not clear enough, Wake Forest wants to make sure when the NCAA says prevail, it means prevail on any part, even if that results in twisting a few definitions along the way.

Hatch’s statement in Thursday’s filing said: “Instituting a pay-for-play model, even if the payments are deferred to after graduation would change the nature of the relationship Wake Forest has with its football and men’s basketball student-athletes. It would, essentially, turn those teams into professional squads. That would not be acceptable to Wake Forest.”

Now remember, first of all, the type of compensation the plaintiffs seek:

In seeking certification of their suit as a class action, the plaintiffs’ lawyers said that while they are seeking monetary damages on behalf of former athletes, they “do not seek compensation to be paid to current student-athletes while they maintain their eligibility” but rather “a less restrictive, namely that monies generated by the licensing and sale of class members’ names, images and likenesses can be temporarily held in trust” until their end of their college playing careers.

Calling that “pay-for-play” is a stretch.  What is being sought is that moneys being generated from use of players’ likenesses be shared between schools and athletes.  And we’ve really gone down the rabbit hole if players who are not being paid (because such payments are deferred until they’ve left college) are to be labeled professional, while student-athletes who were fortunate enough to be paid for their professional participation in sports other than the ones in which they’re engaged at college aren’t.  I think I’ll need a new dictionary.

And that doesn’t even begin to take into account that some of the revenues in question aren’t generated until the student-athletes have left college.

But here’s the best part of all from the NCAA’s legal eagles:

“The likelihood that at least some schools would simply stop providing athletics-based aid … either by eliminating their football or men’s basketball team, or by adopting a Division III model prohibiting all athletics-based aid means some portion of the class is better off in the real world … and therefore suffered no antitrust impact from Division I’s allegedly illegal rules.”

Get that?  In other words, players, you’ll lose by winning, because your schools will simply choose to walk away.  So it really doesn’t matter if there’s an antitrust violation now.

I guess this is how you define doubling down.  The question going forward will be whether the NCAA’s shrillness resonates with the judge.  If it doesn’t, and things go badly enough at trial, my bet is that eventually the NCAA goes fishing for an antitrust exemption.

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51 Comments

Filed under It's Just Bidness, The NCAA

51 responses to “The NCAA gets jiggy in the O’Bannon suit.

  1. Scorpio Jones, III

    I don’t have the Senator’s intimate knowledge of the legal system, but I certainly agree this suit is going to have long-term impact we may not now even begin to understand.

    So…under the proposed system, A.J. Green’s thousand-buck jersey funds would go into trust for A.J. when he turns pro…or is no longer eligible (I hope it is ok for me to use A.J.’s name in this example.) Which means, that like me when I go to the bank for a loan, A.J. can have the money when he no longer needs it.

    Nobody knows how this will all play out, but one thing is for sure…no matter what happens things are going to change. There is just too much money floating around college athletics for the student athlete not to get some of it…while they are still students.

    “Trust funds” for the athletes?….boy I can see that disappearing into the miasma of bureaucratic bookkeeping at the book store.

    I have probably said this before, but if I have not, I should have. Mark Emmert and everybody who is part of the NCAA legal eagle team needs to read the full transcript of the Jan Kemp trial.

    • Scorpio Jones, III

      Oh, and Senator, what exactly would a summary judgement do? (no snark)

    • Silver Creek Dawg

      I could see the “trust fund” being used as collateral for a bank to consider making a loan to a college athlete to funnel them the money early. How could the NCAA tell a bank who they can/can’t loan money?

      After all, it’s an asset that clearly exists and is tangible.

      • greeneggboy

        That was my first thought. They could just borrow against the future trust fund distribution. Might as well give the money up front so the kid doesn’t have to pay the interest.

      • Hogbody Spradlin

        Silver Creek: banks don’t like trust funds as collateral for various reasons. And you can draft around the possibility with spendthrift and forfeiture clauses.

      • They don’t tell banks that now. They tell the student-athletes accepting the loans endangers their eligibility as student-athletes.

      • James

        I’d have to double check but I’m fairly certain taking out a loan based on future athletic earnings cancels your ameture status, I have to think the same would apply to this trust fund.

        In fact this has to be the case, otherwise you’d see every projected first rounder getting loans based on their signing bonus/contract…from a bank’s perspective it’s a pretty safe bet that $100k to anyone in the top x is going to get repaid, yet we don’t see any of that.

        I don’t know of an NCAA example but this happened to Lebron on high school. He got a car loan (Hummer) based on his future NBA earnings. The OHSAA disqualified him and only after returning the car and saying he was really, really sorry was he able to play in the state tournament.

    • The other Doug

      Somewhere in Alabama and Auburn fan is dreaming of buying $180,000 worth of jerseys.

  2. Darrron Rovelll

    Okay – so we are supposed to believe that Texas is going to walk away from athletics? If there is one AD in the NCAA familiar with BS, it would be DeLoss Dodds. He just shoveled a big pile of Bevo dung on the judge’s desk.

  3. Chuck

    Just as a fun exercise in estimating, if something goes through that allows athletes to share the profits from their likeness, how much would Tim Tebow be due? Hershel?

    One plus that none of the schools talk about is that part of what makes guys like Teebs and HW so valuable is their basically wholesome image. Thugs just wouldn’t make as much. So there’s that.

  4. Cojones

    Since a CFB player depends upon his team to attain popularity such that fans want to buy his school’s jersey # (w/wo a name), how would you make payment equitable to all who shared in making the name and # famous? How do we figure out the equality of players supporting a single play’s importance in making a player famous? Who is more important for the success of a single player, i. e., AJ; the linemen who kept the QB protected who then had to make a toss within reach of the speeding player? ; or what about the downfield blocking and other WRs’s play that frees him up to catch the ball without getting killed?

    Such legislation would make CFB and CBB non-team sports.

  5. paul

    Since when has this suit been about what Texas has an interest in? Nobody is asking the schools what they’re interested in. We already know that. The suit is about what’s fair and what’s legal. The schools have painted themselves into a corner with their aggressive marketing to companies like EA Sports and apparently they’re just now starting to figure this out. So they’re trying to do what they do best. Obfuscate.

    • SCDawg

      Excellent point. They are trying the “parade of horribles” defenses out right now. Common strategy when you’re wrong on the wrong side of the facts or the law.

      And if you think Texas is going to stop playing football on Saturdays, I have some beachfront property in Arizona to sell you.

      • The984

        When the facts are against you, pound the law.
        When the law is against you, pound the facts.
        When both are against you, pound the table.

  6. AusDawg85

    Well the NCAA has certainly spent their money well on a new line of legal defense thinking. Future DUI defendants will just tell the judge & jury, “don’t you dare convict me, or I’ll just quit buying booze, cars, gas and such…”

  7. 81Dog

    So the NCAA’s argument boils down to “If you follow copyright law, our member institutions will just quit and chaos will ensue, so don’t follow the law.” I’m sure the smart guys they hired from Harvard and Yale phrased it ever so delicately, and wrapped it up in a bow from their walnut paneled conference room decorated with whimsical impressionist originals, but this is about the dumbest damn argument I have ever heard advanced, since the time I heard a lawyer (former Law Review swell) whose name the Senator would know suggest in court that a hot air balloon that was several feet off the ground was not actually in flight because it was “connected to the ground by a tether rope.”

    Some guys are just too smart for their own good. I guess the NCAA should have hired someone on the front end who was smart enough to warn them about appropriating the commercial likeness of another for profit BEFORE they did it.

    It’s interesting to me that no one at the NCAA is saying, “Well, if we lose, we will just have to stop licensing these deals, because we dont want to pay players.” That would mean THEIR hands have to come out of the cookie jar, and those handmade silk suits and Italian loafers dont just pay for themselves, boys.

    • I guess the NCAA should have hired someone on the front end who was smart enough to warn them about appropriating the commercial likeness of another for profit BEFORE they did it.

      There are communications that came out in discovery that indicated some folks did have misgivings about it. The NCAA just went ahead and did it anyway.

  8. reipar

    Well at least the NCAA attorneys did not whip out the ole “it is a slippery slope” argument. I mean they do have that going for them I guess. Which is something I suppose.

    • Alkaline

      That sarcasm? Wake Forest, in particular, sounded pretty whiny about the future of where amateurism would go if this happens.

      I’m not siding with the NCAA here, but I don’t know why everybody is so generally down on the slippery slope. Human history is full of various slopes travelling in one direction or the other.

  9. Skeptic Dawg

    Senator, I would like to say thank you for keeping us up to speed on this legal drama. While, I am not a lawyer and certainly have no idea where this will lead college football, I do enjoy reading your updates and thoughts on this matter. Thanks!

  10. Dog in Fla

    The smell of corndogs lingers from this morning. LSU boys go in dumb and after coming out of the HLS of East Baton Rouge Parish with a couple of government entitlement gigs along the way become general counsel to Mark Emmert’s continuing incompetent enterprise:

    “The new guy, 44-year-old Donald Remy, had been vice president of litigation at Fannie Mae from 2000-2006. In 2006, the national mortgage giant revealed it had made billions of dollars worth of accounting errors. Some blamed Fannie Mae for the financial collapse.

    None of that bounced back on Remy, an LSU grad….Obama…yada yada….

    Off to the side of the podium where he spoke to media that day, Emmert expressed full confidence in Remy….

    Some of the balls Remy has inherited, some he has watched being thrown since taking his position in 2011….

    • An ongoing lawsuit regarding players’ rights to their likenesses threatens to become a landmark case not only in NCAA history, but legal history.

    “I’m not particularly concerned on any of those,” Remy said. “I believe we’re right on the law and the facts.”

    http://www.cbssports.com/collegefootball/story/21563406/potential-landmark-cases-make-these-perilous-times-for-the-ncaa

    Wait until the Donald gets a load of what happens just as soon as class action certification occurs. Plantation owners and overseers lose. Big Time. To stave that off, Deloss bets that Judge Claudia does not want to declare war on Texas because there will be consequences. Not only that, the whole concept simply would not be acceptable to Wake Forest (Big Tobacco Plantation). So unacceptable that the Demon Deacons may have to drop out, the consequences of which could be as disastrous to college sports as Tulane dropping out of the SEC in days of yesteryear was to the SEC.

    • Always Someone Else's Fault

      You want to see plantation/overseer forces at work? Take a trip down the south end of my county and spend a day talking with moms and dads at the community college working two jobs and taking night classes trying to get a leg up. We can talk about economic fairness in the world of college athletics, but I am getting sick and tired of hearing it compared to slavery. These kids have an opportunity that most Americans (still richest country in the world, last I checked) will never, ever have.

      Love your posts. Sorry for the rant.

      • Dog in Fla

        Thanks! I can’t do anything without hyperbole although I did think the corndog, LSU, and Plantation/overseer thing tied the room together pretty well with the coup de grâce of course being class certification. At least, until now, I didn’t violate the Rule of Godwin today

        http://xkcd.com/261/

      • I’d agree with the opportunity, if it weren’t so exploitative and kids being encouraged to major in “eligibility”. Prop 48, a need to make “progress towards a degree”, etc, etc, etc kind of kills the idea that they are giving an “opportunity” as much as just trying to keep the sham and profiteering from being exposed for what it truly is.

        • Always Someone Else's Fault

          Some kids major in eligibility. Others get all the way into a graduate program during their time on campus. That issue is all about academic progress, not compensation. Separate issues.

        • Puffdawg

          Exploitative? My God you make it sound like they’re making shoes in a sweatshop when they aren’t practicing. These guys are getting a free education and free room and board for being big and fast. And they’re the big men on campus, treated like royalty (seen the Rankin S-A study hall)?

          As for buying the Moreno jersey, for every Knowshon Morenos, there are 15 Dontavius Jacksons. Nobody wants to talk about the risk/reward aspect here. As ASEF mentions, you people buying jerseys are still ultimately buying them because they are UGA jerseys, NOT because they are Knowshon jerseys. If Knowshon suddenly transferred to GT, you wouldn’t buy his GT jersey, would you? Why shouldn’t the University profit from the risk they took in investing in Knowshon, especially when so many of the other investments DON’T turn a profit and yet their scholarship is still honored for 4-6 years…?

          • Bobby

            I think the argument is that the way they went about taking the risk involved anticompetitive measures, i.e., the antitrust violation.

          • James

            How many UGA jerseys would you buy if all the players were at a D3 skill level? You need good, unpaid players to be a successful football program and thus sell UGA jerseys. That knife cuts both ways.

            Also, the second you start taking about UGA making “investments” and having a right to “turn a profit”, you lose this argument before it even starts. If that’s what UGA is doing, then ameture status is by default profit-motivated and thus a sham.

            • Also, the second you start taking about UGA making “investments” and having a right to “turn a profit”, you lose this argument before it even starts. If that’s what UGA is doing, then ameture status is by default profit-motivated and thus a sham.

              +1 to that. Especially when what we’re talking about here is denying players the right to profit off their own names, as everyone else in this country, including the schools themselves, can.

              • Puffdawg

                Are you mad because the players aren’t allowed to profit off their name or because the schools are?

                Do you put no stock in the line of reasoning that the players in fact ARE being compensated by way of tuition, room and board? Why don’t we eliminate scholarships and LET the players profit. How well you think THAT will work for the 99.5% of college student athletes who wouldn’t make a penny?

                • Are you mad because the players aren’t allowed to profit off their name or because the schools are?

                  The former.

                  Do you put no stock in the line of reasoning that the players in fact ARE being compensated by way of tuition, room and board?

                  None. Zip. Nada. All scholarship players receive that, regardless of whether their names have value on their own.

                  • James

                    Fun exercise on that last part about how players should take what they’re given in a monopolistic system and stop complaining: compare the full value of 85 scholarships to the University of Alabama (never mind the fact that the school incurs almost zero actual incremental cost to have 85 extra people on campus) and compare that to the cash bonuses the Alabama staff received after winning the BCS Championship. Guess which is bigger?

                    But we can’t regulate the salaries of ADs and coaching staffs, that would be anti-competitive.

  11. This is basically the argument the baseball owners made to the arbitrator in the 1970s to preserve the reserve clause/continue to deny free agency. It’s “forget about the law, the system that benefits us so greatly will have to change if you rule against us, and since that would really make us sad, you can’t possibly do that”

    And like the baseball owners, I’m sure that argument sounds compelling to the NCAA suits. They should not, however, be shocked if the judge finds it significantly less so, as was the case in baseball.

    Because that’s really all it is. It isn’t: “here’s a strong legal argument.” It isn’t: here’s a compelling public policy argument, such as “the enemy will learn the sailing times of troop ships.” It’s just: “we like the way things are and we’d like to keep it that way.”

  12. Always Someone Else's Fault

    This does strike me as one of those problems where the cure can easily be worse than the disease.

    Let’s say that…
    1) …Texas takes all player names off jerseys sold. Does that eliminate the “likeness” issue? Or recalibrate the school/player cut?
    2) …Texas jersey #12 (McCoy et al) becomes a top-seller. Does Colt get a cut of that in perpetuity?
    3) …Texas promises jersey #12 to a 6-star QB recruit. It is, after all, a top seller and generates serious a revenue stream, guaranteeing said recruit far more marketing dollars at Texas than, say, Baylor.

    No one asks these questions, but these are the sorts of issues the NCAA or an FBS-regulatory-agency-to-be-named-later would have to deal with Day 1.

    The current situation isn’t fair, no questioning that.

    • Cojones

      Agreed. And much more can be added to your list. The heart of my problem with this is that someone should have researched and presented problem solutions before opening Pandora’s Box out of a sense of fairness. The end scenarios probably won’t justify the means(rip it open now and see where the pieces fall- screw CFB).

      If it all could fall only on the TV games (i.e., EA Sports) side of the issue, then we could proceed with athletes being responsible for their images. Why not wait until they enter pro sports and/or graduate? But don’t touch it while they benefit already from the college scene.

      Coaches and fans alike would like players to have spending money such that every once in a while you only lose 3-4 players to petty robbery ( :) ). Most of us register an insensitivity toward someone not having money to spend while in college. While many of us know what it’s like to have little college spending money(unless you made enough in summer jobs to carry you through to next summer), still, I realize that many of these athletes come from low-income families and part of the NCAA’s funds are shared in separate school programs to help ease that difficulty.

      After college I don’t care how they negotiate their rights with EA because then my school won’t be involved. Using school equipment as a part of that right is a different matter.

    • Are names on jerseys now? The #24 jersey I got my wife several years ago doesn’t say Moreno on the back. And it didn’t have to. But there was a reason that was the one I could by, and not #77, #91, #52, etc.

      • Always Someone Else's Fault

        But you were going to buy one no matter what, right? Moreno just helped you focus on a number. If Moreno had gone to GTech, it’s not as if you were going to switch allegiances. Moreno wasn’t the Ipod or the sports car. He was just your favorite color.

    • James

      (Not directing any of this at you, but…) It’s almost as if we need to create an organization of incredibly high-salaried people to figure out the details.

  13. Krautdawg

    Antitrust exemption??? The administration that would have lent executive-branch support to that left in 2008. And what’s the exemption argument anyway? Of major sports, only Major League Baseball is antitrust-exempt. And it’s only exempt because SCOTUS wanted to uphold its “aberrational” 1930s ruling that major-league baseball is nothing more than a local “exhibition” even though it had become a major interstate business since then. Now — besides the fact that the teams are loosely connected to schools instead of cities & the games don’t require drunkenness to tolerate (we get drunk because we WANT to), how is SEC football fundamentally different from the MLB?

    Answer: SEC stadiums hold more spectators.

    And don’t give me this educational mission BS to make us look like we’re a nonprofit serving a higher purpose. Sure, in the 1910s, college football may have been an amateur exhibition for the students (although after reading Ferrol Sams I doubt it). Nowadays it’s a money machine attached to a school because the school’s name & the (current) conference’s tradition are the best value drivers it can find. Don’t believe me? Ask West Virginia, Nebraska or Mizzou. These nonprofits will jump ship at the drop of a hat at the promise of … larger long-term operating profits.

    Not saying I can’t see an antitrust exemption winning — SCOTUS loves saving state budgets — but if it wins, I’m buying new dictionaries for everyone in this thread!

    • pantslesspatdye

      I agree with the validity of most of what you write. However, the law and interpretations of such are disregarded on a regular basis in the legislature and judiciary for various reasons by all involved. If the NCAA takes a lobbying tack that an interruption of its income stream will damage Title IX sports, I could see an antitrust exemption resulting.

      • And it will, not because it has to damage Title IX sports, but because administrators will take that money from other sports instead of taking it out of their own pockets, or out of the ever-rising coaching salaries, among other areas of excess that could be cut without their farsical “we can’t continue our mission” sham.

  14. The best analysis of the NCAA’s position is not legal …it’s poker… they’re bluffing. Ain’t none the these boys taking they’re ball and goin home. They’re just a bunch of whiny ass bitches who don’t like to share.. I’m confused is Texas going to play with themselves or not play at all.?

  15. Aaron Smith

    I think what they mean to say is Schools will walk away from the NCAA after they realize how useless a entity it is. And that is what scares and the s%♧☆ out of them.