By now, I assume you’ve learned of the appellate ruling on Judge Wilken’s order. If not, here’s the gist:
The N.C.A.A. may restrict colleges from compensating athletes beyond the cost of attendance, a three-judge panel of the United States Court of Appeals for the Ninth Circuit ruled Wednesday in an apparent victory for the college sports establishment as it fights efforts to expand athletes’ rights.
As college football and, to a lesser extent, men’s basketball have generated millions of dollars in revenue through television broadcast deals and merchandise sales, some critics, including former and current athletes, have lobbied for greater financial compensation. The appeals court bluntly said that limiting compensation to the cost of attendance in exchange for use of the players’ names, images and likenesses was sufficient under antitrust law.
The use of the word “apparent” in the first sentence shouldn’t be glossed over, because the plaintiff’s lawyers established the beachhead they were looking to take.
The ruling upheld a federal judge’s finding last year that the N.C.A.A. was, in the panel’s words, “not above the antitrust laws” and that its rules had been too restrictive in maintaining amateurism.
More specifically, the panel smacked down the main legal underpinning of the NCAA’s argument.
Since 1984, when a group of universities sued the N.C.A.A. over restrictions on their television broadcast rights in a case known as N.C.A.A. v. Board of Regents, the association has cited a passage written by Justice John Paul Stevens that declared that banning payments to athletes was essential to the “revered tradition of amateurism.”
That was kicked to the curb.
In the opinion, the panel acknowledged that “the Board of Regents Court certainly discussed the NCAA’s amateurism rules at great length, but it did not do so in order to pass upon the rules’ merits, given that they were not before the Court. Rather, the Court discussed the amateurism rules for a different and particular purpose: to explain why NCAA rules should be analyzed under the Rule of Reason, rather than held to be illegal per se. The point was a significant one.”
The appellate judges wrote that the 1984 Supreme Court case “did not approve the NCAA’s amateurism rules as categorically consistent with the Sherman Act. Rather, it held that, because many NCAA rules (among them, the amateurism rules) are part of the ‘character and quality of the [NCAA’s] product … no NCAA rule should be invalidated without a Rule of Reason analysis. The Court’s long encomium to amateurism, though impressive-sounding, was therefore dicta.”
So, the big question remains: where do things go from here? In the short run, there’s no doubt that this is a win for the NCAA and the schools, in that they’re not on the hook for anything more than what they’ve already agreed to pay out to student-athletes. (“This provides some level of uncertainty, but also a welcome level of certainty,” Mr. Bowlsby said…) But their problem is that the people they’re fighting with over amateurism aren’t playing a short game. That’s why Sonny Vaccaro was crowing after the ruling came out.
“They specifically went in and said the N.C.A.A. violated antitrust law,” said Sonny Vaccaro, a longtime N.C.A.A. critic who helped start the O’Bannon lawsuit. “That opens things up, and it’s tremendous.”
And Hausfeld, more interestingly, isn’t going to pursue an appeal.
O’Bannon attorney Michael Hausfeld said he was “thrilled” with the decision and has no interest appealing to the Supreme Court. He noted that it was Wilken’s idea to allow $5,000 per year to players, not O’Bannon’s.
“I think this is an even worse position than the NCAA has been in,” Hausfeld said. “Remember, the court did not strike down the unlawfulness of the regulation. They just said the relief wasn’t necessarily a less-restrictive restraint. So is there other relief? Now they’ve opened it up to us to propose reforms of relief. This opinion shakes up the entirety of the relationship that the NCAA has had with the athletes. They can no longer exercise economic dominion over athletes’ values. it clearly underscores the responsibility of the schools and the association to make sure athletic participation does not diminish academic success.”
If that’s the case, look out for Jeffrey Kessler, NCAA.