Mark Emmert’s legacy

I’m sure the NCAA president would like it to be about the way he handled Penn State or the reforms he’s been pushing, but Andy Staples points to a very different area:

When federal judge Claudia Wilken ruled in January that the O’Bannon plaintiffs could proceed with the class certification process, the panic level among the people who actually run college sports on a daily basis — the athletic directors and commissioners — rose to DEFCON 2. The plaintiffs have altered their legal strategy so that this case isn’t just about the use of former athletes’ likenesses in video games and DVDs. Now, it’s about whether the NCAA and its schools have the right to market the likenesses of former and current athletes for big money. If the class is certified in June, the NCAA would be fighting for its life in an antitrust trial that, if won by the plaintiffs, could bankrupt the NCAA. The other option is to settle, but that would also require a paradigm shift. To get the plaintiffs to drop the suit, the NCAA would have to allow athletes to get a chunk of the massive television money now flowing into college sports. That probably would require the big-money conferences — at the moment, the ACC, Big 12, Big Ten, Pac-12 and SEC — to at least form their own division within the NCAA and could force them to break away and form their own organization. Even at the top of the food chain, schools would have to change the way they budget. Instead of building a new weight room, a school might need to hold back on capital improvements to meet payroll. Such a settlement would get messy, but it would finally stick a knife in the NCAA’s sham notion of amateurism in major college sports.

This case could have been settled long ago for relative peanuts.  Instead, due to arrogance and greed, Emmert may go down as the guy who killed college amateurism.  That’s not exactly the kind of legacy that gets buildings named after you (assuming schools could afford new athletic buildings if the NCAA loses).  Although I imagine the plaintiffs will raise a few toasts in Emmert’s direction if they win.


Filed under It's Just Bidness, The NCAA

23 responses to “Mark Emmert’s legacy

  1. HVL Dawg

    Coaches have just a couple years to get their retirements funded up before wages start to fall sharply.

  2. JRod1229

    What prevents the school from including a clause in the scholarship offer that allows them, and the NCAA, to use likeness, etc without payment to the athlete indefinitely?

    • mp

      I believe that’s what they make athletes do now. However, one issue with the case is whether or not the athlete has the option not to sign away his rights. I’m no lawyer, but I believe the argument is if the athlete has no choice but to sign the document, it’s some sort of coercion and/or collusive behavior.

  3. The other Doug

    Can you imagine what will come out in discovery? lol.

  4. Hogbody Spradlin

    The old Genie out of the bottle.

  5. Monday Night Frotteur

    This could just be the first of several successful antitrust suits against the NCAA member schools. The whole structure is appallingly anti-competitive.

    Seems like a terrible time to be investing heavily in non-revenue sports, like a few major programs are doing right now (e.g. Michigan). Those programs will never pay any bills; building expensive palaces for them is a luxury that wouldn’t be possible in a competitive environment.

  6. wnc dawg

    I’m no fan of Emmert, but what is the settlement for peanuts that could’ve been made? I don’t really agree with the NCAA’s position, but I do understand their mindset of fighting against the slippery slope. You could argue a series of decisions against them would provide a more gradual shift to the model instead of the potential hydrogen bomb of the O’bannon suit. But if the O’bannon case got settled, wouldn’t it just be the start?

    • 69Dawg

      Better a slippery slope than a trap door.

    • The other Doug

      They could have settled the suit before it was filed, kept the terms confidential, and stopped using the likeness of former players.

      • Darrron Rovelll

        If they agree to stop using the likenesses of former players then it severely limits potential revenue streams for the NCAA and its institutions. A big part of the licensed merch market are heritage items.

        • James

          These are two different things. They settle and agree to stop selling the exact height, wt, skin color, speed and position of current and former student athletes to EA.

          I don’t see how that also precludes them from stopping the sale of merch that uses “likeness”; all they’re really selling are jerseys with TMs the school 100% owns and then putting trending numbers on the back of them. That’s a very different level of likeness (especially when different people have warn the same numbers), and my non-legal opinion is they should be smart enough to recognize that difference, concede when they’re wrong, and not bring down the whole house with arrogance.

          But Emmerts’s actual legacy, boiled all the way down, is doing that last thing over and over again.

          • James

            Also — you know I’m not a lawyer b/c I messed up a double negative there.

          • Darrron Rovelll

            But it goes beyond EA and video games. Part of O’Bannon’s frustration is that the NCAA and schools can sell all sorts of heritage stuff and bank on his and his teammates legacy without paying them a dime.

            • James

              I’m honestly not that familiar with the suit other than what I’ve read about EA — does the suit include claims on revenue from merch too?

              • Darrron Rovelll

                If I am remembering O’Bannon’s story correctly, he first became interested in a lawsuit when a co-worker or co-worker’s kid asked him how much $$ he received from appearing with old footage, behind the scenes interviews, etc in a UCLA Basketball documentary that appeared on CBS before the Final Four and was later sold as a DVD. Plus later his kids(?) were playing the EA NCAA basketball game and then he saw his likeness there so he really got mad then.

                The lawsuit is not just EA Sports but television rights etc.

  7. AthensHomerDawg

    Seems like there may be a new “bubble”.

  8. Emmert = Idiot = Stipulated

    I still don’t see how players legally connect the issue of selling jerseys with their name on them to collecting TV dough. It would require a series of interpretations of current business law that I just cannot see our Supreme Court, as currently configured, endorsing.

    I get the problem. I just don’t see this lawsuit as any sort of solution.

    • Dog in Fla

      “cannot see our Supreme Court, as currently configured, endorsing.”

      Shorter Supreme Court: Build a bigger wall around the Plantation. And top it off with razor wire.

  9. Bobby

    A few questions for the Senator and others who might know:

    What type of class are the named Plaintiffs attempting to certify? Is class certification being decided this year or next year?

    Who are the alleged co-conspirators along w/ the NCAA? I know EA is being sued, but who else? Are individual member-schools being sued as well?

    Senator, is there any way that you could post the Complaint? Or perhaps do a write-up about important litigation dates on the court docket?

    I found this article, which I think may have been posted on this blog before:

    It’s helpful in explaining the basics, but I’d like to see a slightly more in-depth analysis of the plaintiff’s theory, particularly w/ respect to the issue of “how the NCAA forced players to relinquish their likeness rights.” What was the alleged market collusion/conspiracy that effectively denied atheletes of any meaningful alternative to signing such a waiver? From the article posted, it seems like a pretty creative theory. How creative, though? Are the plaintiff’s pushing the frontiers of price-fixing law?

    Surely, somebody on this board has at least taken an antitrust class in lawschool. Any insights would be appreciated. I’m interested.