Here’s an observation of mine from my post about the O’Bannon ruling:
Her ruling in this area may have bigger ramifications than its impact on the NCAA.
Michael Hausfeld, a lead attorney for the O’Bannon plaintiffs, said his team will now consider whether to take any legal action against networks for use of players’ NILs.
“It’s an open field right now because of the antitrust violation,” Hausfeld said. “We’re going to have to take a look at what our next letter might be to ESPN or CBS or Turner. We’ve been looking at it. For example, maybe we don’t go to the larger networks, but go right to the Big Ten Network or Pac-12 Network. Here you have a conference with a most direct relationship to an athlete. They’re clearly use the name, image and likeness.”
Larry Scott’s decision to go it alone on the Pac-12 Network looks more and more expensive every day.
So guess which conference commissioner has the most strident reaction to Wilken’s decision.
Mike Slive takes it in stride.
“We are pleased that the judge recognized the educational component of college athletics, and the importance of integrating academics and athletics in this decision. There are a number of legal questions of some significance that must be answered to fully understand the ultimate consequence of this decision, and how to comply with it.
Together with the change in NCAA governance that was approved just a day earlier, this decision reemphasizes the fact that we are going through a historic evolution of the landscape of college sports and it is incumbent upon all of us to be thoughtful and deliberate in building a better future for our institutions and our student-athletes.”
In other words, as long as nobody screws with autonomy, he can live with it.
Bob Bowlsby? Copacetic.
Bowlsby said the ruling did not move to anything that would be perceived as professional sports and that the “collegiate model” remains largely intact.
“This operates inside the higher education environment, and the fact that the payments for name, image and likeness can’t be manipulated prior to departure from school, I think is a pretty significant distinction,” Bowlsby said. “I don’t think it’s anybody’s perfect solution, but I think it falls short of having an open marketplace where the individuals are differentially compensated.”
So how about the guy who owns a network? He’s not too happy.
“We fundamentally disagree with the O’Bannon court’s ruling that the NCAA and our collegiate model violate anti-trust laws in any way. Our system provides untold opportunities and beneficial life experiences for the almost 7,000 Pac-12 student-athletes every year, and we are intent on improving the system to do even more to benefit young people for generations to come. While we plan to support the NCAA on their appeal of this ruling, we will be working with our institutions to develop next steps in the event the appeal is not successful.”
Maybe Larry’s just more concerned about student-athletes than his peers. But I bet his presidents are wondering if he’s as smart as they thought he was a year ago.
Get The Picture 
I suspect there are a lot of IQ test results being studied all across college football land this week…but for the first time, maybe its the bosses who are being asked to check the boxes.
I am not sure anybody could have seen all this change a-coming, but from the responses to all aspects of it the whole of college bossdom seem to have been caught flat-footed…wonder if Todd Grantham was calling the defense? 🙂
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We cannot question the intelligence of Michael Hausfeld. That guy just made millions on a case where he did not get a single penny in damages. That is some mighty fine lawyering!
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Sure maybe Larry’s less smart but the PAC-12 Presidents still have to like the way their Commissioner strenuously objects:
“We fundamentally disagree with the O’Bannon court’s ruling that the NCAA and our collegiate model violate anti-trust laws in any way.”
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Could the NCAA just have the universities include a section in the scholarship contract saying “the university and its affiliates have the right to use the players name/likeness” or something of the sort? Or would that be a violation to the anti-trust laws?
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Going further, I don’t see how it’s not already implied anyway after the mandate kicks in. Schools are going to be paying full COA plus $5k/year, specifically for the NILs. I don’t see why schools or the networks they make deals with are at risk here.
If anything this court ruling sets them free, for a measly $400k a year a school, or roughly 5% of the Big Ten Networks projected revenues.
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For reference – the NFL is paying 50-60% of revenue in player salaries, and for smaller rosters.
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Here’s where you lose me: why would the wholly owned Pac-12 network, made up of member schools, be at risk here when, in effect, those same schools are already paying their players for NIL rights directly (after the court mandate kicks in)? The O’Bannon case says the schools have to pay no more than $5k per player per year for their NILs, so what is a network doing wrong if they are marketing those NILs that they’ve already licensed?
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Wholly owned = bears all the risk.
Network isn’t the same as the schools. $5000 cap doesn’t apply to network. That’s one reason Hausfeld is thinking of going after the network.
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I understand the first point, but the $5k cap is payment deemed owed for NIL rights, which schools are now paying to own via that payment, which they can then legally license to the network. How would suing the Pac 12 Network be different than the NFLPA suing the NFL Network for NIL rights?
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How can the NFLPA sue? It’s signed an agreement.
There is no contract and there is no court order between any network and Hausfeld’s clients. And there aren’t any NIL payments yet, either.
Wilken didn’t say that $5000 is all the players are entitled to. She just bought that the NCAA’s argument that schools paying too much money to players would hurt the business model. NCAA didn’t make that argument about networks.
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There are contracts — the schools and players already have a scholarship agreement than hand over all NIL rights to the schools. All Wilkins said is that the NCAA can’t mandate schools to not allow cash payments as part of those agreements.
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I’m probably oversimplifying. The NCAA/Schools have said players can’t have NIL rights. Wilkins says they can’t say that. She also said they can’t be prohibited from receiving cash for them because schools have revenue generating agreements that license those rights.
I’m trying to figure out what the Pac 12 (or BTN, or ESPN, or CBS…) owe players on an ongoing basis when they’re legally licensing NIL rights from conferences, who are now playing players.
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Because (1) the schools haven’t been legally licensing those rights and (2) they aren’t yet paying players.
You really think Hausfeld is in the business of seeking blood from a turnip here?
BTW, by your rationale, why would EA have settled?
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I think that first point is debatable, if the networks get dragged into court, you don’t think that’s exactly what they’ll say?
EA settled because they hilariously never claimed to actually be using anyone’s likeness in their games, thus the whole “QB 11” charade. They were actually saying with a straight face that they were selling a football game that didn’t include references to any real people. That wasn’t going to hold up.
That’s not what ESPN et al are doing. They aren’t pretending to broadcast a bunch robots wearing school logos. They have a pretty good case that they thought they owned NIL rights.
I may start to be seeing what he means by “direct relationship with players,” I suppose he’s saying the PTN and BTN might not be able to make that claim, since they were on both sides of the transaction to some degree. But I fail to see how that shields the SEC/ACC/B12, since ESPN will probably turn over plenty of agreements that makes it look like the major conference were misrepresenting their position.
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EA settled because it knew the NCAA’s NIL claim wouldn’t fly.
As for ESPN’s case, you’re not accurate. The NCAA put Pilson up as a witness to claim that with regard to broadcasts, the players didn’t have any NIL rights to transfer. Wilken rejected that argument.
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You and I have a disagreement about what the conferences represented to the networks, and what that means legally, which is fine.
I don’t agree with that summary, Pilson’s entire testimony was contradictory and illogical, that’s what was rejected.
O’Bannon also presented this on Pilson: “The plaintiffs showed a deposition from Pilson in which he said that even without specific language, NIL rights are part of broadcast agreements.”
This is a section in the Big XII / Fox deal:
“The Conference shall be solely responsible for securing all clearances with respect to all officials and other persons participating in or otherwise connected with each Event, and such clearances shall include FOX having all rights or consents necessary or contemplated for the exercise of their rights under this Agreement, including, without limitation, all name and likeness rights of all participants, …”
My opinion is that clause protects the networks, and shows that any money owed to the players for NILs from broadcast was paid in good faith by the networks to the conferences, who claim to have owned those NILs and transferred them in exchange for cash. The cash related to the illegal activity here is in the schools’ bank accounts, not the networks’.
quotes: http://www.cbssports.com/collegefootball/writer/jon-solomon/24586549/ed-obannon-trial-suggests-tv-contract-rights-for-college-players
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You mean the one the SEC says players don’t have to sign?
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No, I mean the one where players agree to abide by NCAA rules.
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Then you’re back at square one. The NCAA was found to have violated federal law; whatever rule you think applies was voided by Wilken.
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” whatever rule you think applies was voided by Wilken.” If that were true, wouldn’t every current TV contract have been voided with the decision? She didn’t say the networks were in on a scheme to not pay compensation for NIL rights; she said there’s a submarket for those NIL rights, and acknowledged that networks are paying the schools for them.
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Why? The networks weren’t party to the lawsuit, first of all.
And second, it just means the networks owe the players damages for use of their NILs without compensation.
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Given this ruling, why wouldn’t the NCAA, the conferences, or the schools themselves consider establishing a royalty licensing model similar to MLB, NBA, or the NFL? Their model involves a pool of money spent on officially licensed merchandise being equally split between all participants. This could also alleviate the Title 9 (if taken far enough) and “what about the long-snapper” concerns. The professional players do not care about their individual jersey sales (that much). They only want more fans buying officially licensed jerseys (and other items) as they all will benefit. The bullpen pitcher is compensated on jersey sales of the starting pitcher and closer. If NIL’s are able to fall under the $5,000 floor being discussed; calculate the aggregate spent, divide a portion among the athletes, and compensate them for the use of their NIL. In addition, this would (1) preserve the existing reserve funds and (2) operational budgets as the compensation would cut only into profits from ancillary fan purchases. While only a few players would move the retail sales needle meaningfully, all involved stand to benefit equally. Gurley wouldn’t be Gurley without his OL. Teams would not win if blocks are missed, punts are blocked due to bad snaps, or punt-safe resulted in yet another fumble lost. More merchandise is sold when teams succeed. Allow each school to customize any (sport) jersey with any name and number combination. I’m not sure if this could / should be done at the NCAA, conference, or school level. Depending on whose side you are arguing, there are pros and cons to each delineation. This model serves the team (and protects other revenue sources) better than any other I have heard / read being discussed.
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