“I don’t think amateurism is going to be a useful word here.”

I think it’s safe to say that things didn’t go all so well for the NCAA at yesterday’s O’Bannon hearing.  For one thing, the parties are finally going to trial.  For another, the judge doesn’t sound like she’s buying a lot of what the NCAA is selling.

During the course of Thursday’s hearing, Wilken closely questioned the NCAA’s lead outside attorney, Glenn Pomerantz, about the association’s contention that the First Amendment and various case law protect live television broadcasts of sports events from claims related to improper use of the participants’ names, images and likenesses. She also asked Pomerantz about the various ways in which the NCAA says its limits on athlete compensation promote competition among its Division I schools and, thus, justify the existence of the restraints.

The First Amendment question revolves, in part, around the NCAA’s argument that college sports events are of such great public and news interest that athletes cannot demand that they be compensated for appearing in TV broadcasts of them. But Wilken asked at one point: “If the public is so interested, why can only CBS show” certain games? Pomerantz said, in part, the law allows the NCAA, a school or a conference to grant of an exclusive “right of access” to a specific broadcaster without losing the First Amendment protection.

Regarding the NCAA’s contention that the limits help with on-field competitive balance among the schools, Wilken asked: “Isn’t there a less restrictive alternative? Wouldn’t addressing coaches salaries or the money spent of stadiums” have the same effect? She also asked whether the NCAA could impose different revenue sharing rules to help schools or particular sports with their funding.

Pomerantz countered that the NCAA “is not saying we have perfect competitive balance” now, but that if limits on athlete compensation are removed, it would “make it a lot worse” because schools with greater financial resources would be in an even more advantageous position to attract top athletes.

Wilken also said she had “problems” with the NCAA’s contention that the limits on compensation promotes athletics’ integration with schools’ academic environment.

Give NCAA chief legal officer Donald Remy enough sense to avoid meeting the press after the hearing.  Instead he issued a statement that’s as detached from reality as the arguments questioned by Judge Wilken are.

“We believe strongly in the merits of our case and will continue to defend the interests of the hundreds of thousands of student-athletes not recognized by the plaintiffs. For them and for all student-athletes, the current model of college sports provides opportunities for success during college and beyond…”

Yep, the NCAA is defending the student-athlete.  Remy might be better served by paying attention to something else the judge said.

There is still a prospect that the case could be settled, and at one point during the hearing, Wilken told the sides: “If you want to compromise, I’m all for it – because I won’t be compromising.”

That’s a tell, guys.  Ignore it at your peril.

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27 Comments

Filed under It's Just Bidness, The NCAA

27 responses to ““I don’t think amateurism is going to be a useful word here.”

  1. Timphd

    The NCAA: the organization that brings you Cam Newton suspended for a few minutes despite the demand for money to sign, Johnny Manziel suspended for a half despite making thousands on his name, A.J. suspended four games for selling a jersey he OWNED and Oklahoma players pay $3.83 for eating too much pasta. Should there be any surprise they are clueless about the O’Bannon situation?

    • Every post someone brings up the A.J. case. And every time that happens, I’m just as pissed off as I was the last time. The A.J. case taught all colleges what happens when you try to do the right thing with the NCAA. Screw them.

  2. 202dawg

    Wow, it’s like you studied law or something…

  3. simpl_matter

    I love this stuff. Thank you for the coverage and enlightened commentary Senator. Just hoping the case stays contentious & lasts through the end of July.

  4. Lrgk9

    Like the Jan Kemp debacle. The risk of loss is too probable and too detrimental to adjudicate. NCAA is a barnacle on the side of College sports and now needs to be removed. Needs to be settled for 144 Times what it would have taken before court.

    • Scorpio Jones, III

      Too bad Fred never seemed to understand the danger, and like that case, this one keeps opening doors into inner sanctums.

      Senator, I assume you agree this thing could have serious consequences for college football…beyond paying kids for the use of their names, etc.

      • Of course it does. Which makes the NCAA’s decision to blow off settling this relatively cheaply early on both arrogant and stupid.

        • Arrogant and stupid, yep that’s par for the course with them.

        • Scorpio Jones, III

          Arrogant and stupid…yep, there was a lot of that going around Old College before Jan Kemp went into litigation.

          Apparently there is a tendency for bureaucracies, over time, to come to believe their world view is the only world view and that all challenges are essentially meaningless, pointless and silly.

          It seems to me at the end of the hunt, the NCAA is doomed, I just hope it does not take college football with it.

  5. The only use of the word “amateur” in this case is to describe the NCAA’s mismanagement of this entire episode. Honestly, I hope this takes the whole organization down and Mark Emmert to go along with it.

    • NCAA has always been a selfserving entity. Advising the football schools to allow them to manage television rights least it destroy college fb was pretty devious. Not as slick as the “scholar athlete” label but impressive just the same. After Georgia and Oklahoma spearheaded the drive to gain control of making their own tv deals I have often felt the NCAA was underhanded in dealing the U of Ga. We all have our own conspiracy theories. If the schools would take over the March Madness $$$ that would go a long way toward pushing the NCAA out the door. It would slow down a lot of their office construction. It would also concentrate a lot of control into the hands of the SEC commissioners and university presidents. Yikes!

  6. “……..and will continue to defend the interests of the hundreds of thousands of student-athletes not recognized by the plaintiffs.”

    Question, is this a not-so-thinly veiled threat that if they have to start paying players in the revenue generating sports, then non-rev sports are likely to be cut? That would be an unfortunate consequence, for sure.

    • I don’t believe there will be a players union. I doubt we see the arm labels on players ever again. They won’t pay players but they will/should have to fund a post college health insurance to make sure any injuries are covered. IF they do they should ALL read it BEFORE they pass it. ;-)
      Some funding for continued scholarship towards completing that degree or even an advanced degree. Why not? Maybe fund some type of mechanism to help players later in life. A trust? 97% of college players will never see the pros. The last chance they have to capitalize on a lifetime investment in their sport will be from their college experience. Of course I really have no background in any of this. It just seems like common sense to help these young people out with regards to all that they bring to the University of Georgia. Regardless of what the NCAA wants to do with their money. We have some pretty hefty reserves of our own and some class rooms that aren’t used enough. Invest some of that largess in post player development. “Charity begins at home. Justice begins next door.”

      Coach Holtz responds to paying players in his usual eloquent manner. ;-)

  7. Always Someone Else's Fault

    Question: If the NCAA gets hammered with a massive judgement, what is to prevent conferences from abandoning the org altogether? Would the damages follow the conferences?

    • That’s not what will happen.

      What will happen is that the NCAA will go running to Congress for an antitrust exemption on whatever terms it can get.

      • I would imagine you’re right on, Senator. The problem is you mix the incompetence of the NCAA with the idiocy of federal government oversight, and the whole system collapses under its own weight. The NCAA isn’t too big or important to fail, but what about that has stopped Congress in the past?

      • But it seems the primary schools in terms of revenue are already dissatisfied with the NCAA, so what’s to keep them from just walking and reuniting again under a new organization? Would a ruling impact just the NCAA, or would the individual schools be liable as members of the group owing under the judgment?

      • Always Someone Else's Fault

        Probable or not, I get the feeling the NCAA lawyers are “all-in” on the legally weakest but economically strongest argument – and they know it. It’s almost as if they are playing with house money. Odd. Then again, the NCAA has forced its lawyers onto thin ice before and paid the price, so I guess the simplest explanation here is cognitive dissonance.

    • Darrron Rovelll

      Not a lawyer here but wouldn’t an NCAA loss open the door for litigation against each of the individual members who have also profited?

  8. 69Dawg

    This seems to be the actions of a desperate organization with lots of cash for lots of lawyers. Their hired guns don’t really care who wins since they get paid either way, The NCAA lawyers will fight on until the NCAA misses a payment. You can only settle if the client authorizes it so the blood is on the NCAA’s hands.

    • Exactly where it should be.

    • I beg to differ sir. “Hired guns” if they’re any good,(and that is very important) like to make sure you don’t get too shot up such that you are unable to continue to need them. They thrive on repeat business. Almost every dollar ( notice I didn’t say dime) I’ve expended on attorney fees has been well worth it. I’ll brag here and say that a small firm of 2 Georgia law dawgs, on my behalf, once went toe to toe with a firm of over 200 lawyers and ultimately had it dismissed with prejudice . I hate depositions. And I certainly understand the meaning of “a tell”. On another occasion and I shall never forget this, per a zoning request we went before the mayor and commission. During a break I spoke with my consigliore outside. With regards to certain concessions he said: “F*ck it… I got this, you tighten you seat beat and don’t interrupt me.” I kid you not. We carried the day and to this day I still think he was brilliant. Besides my youngest is a future member of the Georgia law class of 2017. ;-)