It’s game time.

The O’Bannon trial begins Monday.

Andy Staples looks at some myths vs. truths about the case.  On the NCAA side, this should be the most troubling “truth”:

The deck is stacked against the NCAA in O’Bannon.

TRUTH: Perhaps the worst thing the NCAA’s attorneys could hear was this statement from Wilken during a hearing in February: “I don’t think amateurism is going to be a useful word here.”

In most arguments, the NCAA and member schools have held out the concept of amateurism as some sort of unimpeachable virtue that makes everything kosher. Amateurism was originally conceived in 19th century England to ensure rich people didn’t lose to poor people at sports, but that’s neither here nor there. Since the NCAA’s founding, the word has become tied to the notion of sports used to enrich academic pursuits. In some sports (football), that was probably never true at the highest levels. In others (any sport that doesn’t make money), that concept remains true to this day. Unfortunately for the NCAA, this case is only about the sports that generate money. NCAA attorneys could replace the word “amateurism” with the word “unicorn” and get about the same result.

Wilken also won’t allow the NCAA’s attorneys to argue about the possible negative effects that a plaintiffs’ victory would have on non-revenue sports. Her reasoning is that no one forces schools to sponsor teams that can’t financially support themselves, so she considers the impact on those teams irrelevant in the eyes of the law. This doesn’t leave much for the NCAA to argue except the pro-competitive aspects of its rules…

That ain’t much, indeed.

Many major-college football and men’s basketball recruits would have offers of at least $100,000 to attend certain colleges if the schools were allowed to use broadcast revenues to compensate athletes for use of their names, images and likenesses, lawyers for the NCAA said Thursday night in a filing related to a class-action anti-trust suit it is facing.

The NCAA’s lawyers wrote that when they present their case during a trial that is scheduled to begin Monday in U.S. District Court in Oakland, they will have experts present analyses showing a scenario under which “many recruits will have significant — in many cases, six-figure — incentives to attend schools with more revenue.

“In those circumstances, it is basic economics that allowing cash payments for (name, image and likeness usage) for the first time will tilt the distribution of talent and success towards colleges and universities with more cash to spend.”

The NCAA offered this assertion in a trial brief that will essentially serve as its opening argument in the case.

“For the first time”?  You guys shitting me?

What makes this especially rich – pun intended – is that at the same time the NCAA apparently intends to make this argument with a straight face in Judge Wilken’s court next week, the Big Five conferences are lobbying for some form of autonomy within the NCAA governance structure because, as Mike Slive so airily put it,

“I consider this period of time one of the historic moments that all of us are witnesses to — an evolutionary change where we put the student-athletes first and we build our philosophies on the student-athlete rather than the so-called level playing field,” Slive said. “I don’t know how this comes out, but I’m optimistic the evolution will continue.”

I hope one of the plaintiff’s lawyers asks Delany about that quote.

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19 Comments

Filed under The NCAA

19 responses to “It’s game time.

  1. The other Doug

    Is there any chance the Slive and Delaney have told Emmeret there will be no settlement as a way to force change? I know I’m getting into black helicopter territory, but it’s the only way I can see the NCAA not settling.

  2. John Denver is full of shit...

    Imagine if Trigga Trey received $100k to play for the dawgs…does this improve his behavior in the classroom?

    • Russ

      I’m thinking we’d be out a few hundred k due to the player attrition. Does that make it harder to dump troublemakers? I don’t know.

    • Krautdawg

      This is a great question.

      Here in the SEC, our schools have enough bargaining power to insert morality or behavior clauses into contracts, i.e. if you disrupt classes too much, you start losing money. The only question is whether SEC schools would use such clauses. I could see Nick Saban loving them (b/c it brings back a strong measure of control) and UGA’s administration loving them too (b/c we get to appear to put academics first, see also drug policy). But South Carolina? Florida? Auburn???

      Another interesting question would be whether the SEC could mandate classroom-demeanor clauses for athlete contracts. Doesn’t seem to be a restraint on trade (it’s not reducing salary) and even if it were it seems reasonable (you protect the learning environment for the rest of us).

  3. paul

    The good news is the NCAA is about to get bitch slapped. The bad news is, who knows how this eventually turns out. Emmert and his crew have been begging for this for years. Careful what you ask for.

  4. wnc dawg

    I think the “for the first time” refers to the cash payments, at least I sure hope so. I think it speaks volumes that we aren’t sure and that such poor sentence structure could be used.

    • Hackerdog

      I think you’re wrong. The NCAA is claiming that the awful consequence of cash payments will be tilting the playing field. If they acknowledge that the playing field is already unequal in terms of schools landing recruits, then what’s the big deal about giving money directly to kids, rather than spending it on recruiting coordinators, camps, and posh facilities? The result won’t change.

      No, the NCAA has staked its position out that the fact that Alabama lands better recruiting classes than Miss State is just random chance. If that seems farcical, it’s because it is.

  5. so… that means more blog posts that I can ignore.

  6. Lrgk9

    Amateurism ~ Unicorns

    Equallity ~ Trust the NCAA

    Not settling O’Bannon ~ Jan Kemp

  7. Dog in Fla

    Slive jumps shark turning Monday’s hearing into even more of a Monkey Trial than it already is. The Donald objects to the Kangaroo Court on the grounds that it’s totally inappropriate, lewd, lascivious, salacious, outrageous and wants a real and spectacular trial citing Jacklie Chiles as authority

  8. reipar

    “Her reasoning is that no one forces schools to sponsor teams that can’t financially support themselves, so she considers the impact on those teams irrelevant in the eyes of the law.”

    While I think the NCAA argument on this point does not hold water I am hoping the Judge was taken out of context on this comment. I am pretty sure that is exactly what title IX does.

    • Gaskilldawg

      Actually it is not Title IX it is tax exempt status that could be argued to be the driving factor. I can see an argument that a sports department offering a lot of opportunity to a lot of students is consistent with a university’s educational purpose. It is harder to argue for tax exempt status if the only sports programs are million dollar businesses earning $20 million in profit and paying coaches and administrators million dollar salaries. What is the educational benefits to Alabama if its athletic department consists only of the Alabama football and men’s basketball businesses?

      • reipar

        Please explain? As I understand it if you offer a sport for males then you are required under Title IX to make similar allowances for females. I do not think Iowa State University dropped its baseball program in order to have a better tax exempt argument. They did it to make the various factors considered in determining compliance with Title IX add up.

        • Gaskilldawg

          You suggested that the NCAA ‘s rebuttal to the judge’s comment is that title Ix requires colleges to sponser sports that do not generate enough revenue to support themselves. Your focus on title Ix ignores that colleges elected to sponser sports that did not financially support themselves for decades before title Ix was signed into law in 1972. I was a UGA student before title Ix was implimented and UGA sponsored zero,women’s sports. The colleges, including my alma mater, sponsored s bunch of mens sports that did not financially support themselves. UGA probably did not make s dime off of cross country. Admission to tennis matches was free. Football was the only sport making money

          Why did uga sponsor men’s sports other than football? UGA believed it was path and parcel of the college experience for the cross country runners and swimmers and the students who followed them. The UGA AA could argue that with a straight face that the profits it generates supports the student experience of sport that benefits the educational experience and therefore it should be tax exempt.

          Now, change the landscape and say that colleges should jettison. Sports that aren’t. Self supporting. Leaves us with just football and men’s basketball. Then football profits are not going to benefit swimmers and fencers and hurdlers. Why would profits then be tax exempt if the huge dollars only benefit 100 students and thebalueof thosebenefits is a small percentage of the salaries paid to nonprofit administrators? The ads generating the big bucks from football neednonrevenuesports to fund to ensurethe tax exempt status. Doesnot matter what gender the swimmer is. Last thing mcgarity wants is to jettison thenonrevenue sports not because he loves cross country but because he can awoke paying taxes.

          • reipar

            The points you make about non-revenue sports existing prior to Title IX are true, but the tax exempt status has nothing to do with making money or not. They could jettison every non-revenue sport, make the arguments you made, and still have the same tax exempt status under the current codes. Title IX did not create non-revenue sports, but it led to the creation of a bunch more. For the Judge to say there is no requirement that a school support non-revenue sports means there is no requirement that a school have any sports. If you are arguing that you have to have non-revenue sports to be able to still be tax exempt that is not an argument that has never been made before that I am aware of and runs contrary to what the code seems to say.

            • Gaskilldawg

              You totally miss the point. The tax exemption revolves around whether the money the UGA A A raises goes to support the educational experience of a bunch of students who participate in sports. You are right in that if all of a sudden 90,000 UGA fans made $1000 contributions and bought $40 tickets to watch the UGA cross country team perform the fact that cross country made a profit would not affect tax exempt status . The real world is that of all the sports under the UGA AA umbrella only two are self sustaining, and those two combined have 100 scholarshipped athletes. The total paid out yearly in tuition , books, room and board, etcetera to those 100 totals less than the salaries of each of two nonprofit administrators. I will bet we put more into the reserve fund than we spend on those 100 each year, and if we eliminate the expenses of all teams except football and basketball the profit would be even greater .

              If we jettison the other sports that don’t make a profit (which in the real world is the rest of the UGA AA teams) them we have to convince the IRS that the AA is in the business of supporting education for those 100 kids and that the more than $26 million profit and millions diverted to the reserve fund (enriching the fund managers) is a reasonable expense of running a charity benefitting 100 kids.

              Think the IRS may say, “Deduct the benefit to those 100 kids and pay taxes on the remainder”? I bet the athletic directors are worried IRS might.

              Having a number of other sports so that the number of students benefiting is greater than100 is important to maintaining the argument that the $6.5 million dollar a year paid to one coach is a reasonable administrative compensation to an administrator of a nonprofit.

              Again, the key is that the tax exempt riches can benefit more that students playing two sports is important to justifying tax exempt status.

              Answer this. If we eliminate every UGA sport but football what the hell is the justification for tax exempt status of the UGA AA?

              • Reipar

                Nothing you just said is backed up by the code. As a matter of fact you use words like a bunch and try and qualify with percentages that are simply not supported by the law.

  9. Go Dawgs!

    Sad threadjack, but I just heard that Cecilia Seiler passed away in Savannah yesterday at the age of 80.