Arguments that don't add up. Unintentional courtroom comedy. More fun with the word "entitlement." Welcome back to the Laboratories of Hypocrisy, Sports on Earth's semi-regular roundup of the unfairness, dissimulation and sheer, head-shaking absurdity that characterizes amateur campus sports.
For the previous installment, click here. Otherwise, let's get started …
The biggest story in college sports -- perhaps in the history of college sports -- is the ongoing federal antitrust lawsuit filed by former University of California, Los Angeles basketball star Ed O'Bannon against the National Collegiate Athletic Association. Generally speaking, the suit makes two claims:
1. O'Bannon and other former college players, including fellow plaintiffs Bill Russell and Oscar Robertson, are entitled to a share of the millions of dollars in revenue the NCAA earns from video games and other products that use their names, images and/or likenesses;
2. Former and current athletes also deserve a share of the billions of dollars in television revenue the association, conferences and schools earn from selling sports broadcast rights.
On both fronts, O'Bannon and the other plaintiffs argue that college sports amateurism -- the no-pay-for-play system defined and enforced by a cartel of schools -- acts as an illegal price-fix, a trade-restraining, competition-neutering mechanism that prevents athletes from realizing their market value. The NCAA, unsurprisingly, argues otherwise. Two weeks ago, a federal judge in California held a hearing to help determine whether to certify the case as a class action -- a crucial decision, given that the potential damages to the association resulting from a class action loss could be enormous and landscape-altering, whereas a lack of certification likely would string out the status quo, forcing individual athletes to bring suits and go through trials by themselves.
A certification decision is expected later this summer. In the meantime, NCAA lawyer Donald Remy has accused the plaintiffs of engaging "in a process of throwing things against the wall to see if anything sticks." Impressively, Remy said this with a straight face. During the certification hearing and in court filings, the association has put forth a crazy-quilt series of defenses as hypocritical and confounding as amateurism itself. In legal circles, this strategy is known as "alternative pleading" -- offering multiple, simultaneous theories that don't have to square with each other.
To illustrate, imagine a dispute over a mail-order vase:
Defense 1: I never got the vase in the mail, so why do I owe you for it?
Defense 2: Moreover, once I got the vase, I returned it right away, unharmed, so actually you owe me a refund.
Defense 3: And anyway, the vase arrived at my house shattered into fragments, so how can you expect me to pay for it?
Back to O'Bannon. The NCAA's first -- and favorite -- defense rests on a 1984 Supreme Court case, NCAA v. Board of Regents of the University of Oklahoma, in which the court ruled that the association violated federal law by restricting the number of television appearances college football teams could make. What does this have to do with price-fixing for sports talent and the names, rights and images of college athletes? The ruling's majority opinion, written by former Justice John Paul Stevens, includes the following language:
… moreover, the NCAA seeks to market a particular brand of football -- college football. The identification of this "product" with an academic tradition differentiates college football from and makes it more popular than professional sports to which it might otherwise be comparable, such as, for example, minor league baseball. In order to preserve the character and quality of the "product," athletes must not be paid, must be required to attend class, and the like … (bold added)
As ESPN.com writer and Friend o' the Labs Tom Farrey notes, most legal scholars do not consider "three sentences in a 19,000-word brief, on a topic (player compensation) separate from the issue at hand (television contracts)" to be settled, ironclad federal law. After all, Farrey writes, "no testimony was taken on the question, no formal arguments made and tested. The lack of rigorous thought is reflected in Stevens' casual, almost off-hand language. What is the exact definition of 'paid,' given that checks are being written as part of scholarship contracts that can be worth hundreds of thousands of dollars? Does the ban on pay include endorsements from outside entities?"
Good questions. Questions the NCAA usually answers by referring to its voluminous rulebook, policing acceptable bagel toppings and defining amateurism as whatever the association says it is. Moreover, a halfway-intelligent person could read Stevens' aside as a no s-t marketing observation -- colleges sell college-affiliated football, duh -- and not as a court-decreed antitrust exemption for the entire college sports industry.
But never mind that. The NCAA long has argued that Stevens' language confers blanket immunity to conspire to not pay players for anything, including name, image and likeness rights -- a totally sweet and utterly un-American business practice -- with Remy recently stating that the current college sports system is both "pro-competitive" and "the law of the land."
Also, we have always been at war with Eurasia.
Still, maybe you're not convinced. No worries. At the certification hearing, lawyer Gregory Curtner also argued that the association isn't profiting off college athletes via television broadcast contracts, because it isn't selling their names, images and likenesses. Nuh-uh. Instead, the NCAA is simply peddling access to its facilities. Read that again. By Curtner's logic, networks like ESPN and CBS aren't forking over billions of dollars for the exclusive rights to show athletes performing, but rather for the exclusive opportunity to lug cameras and satellite transmission equipment into arenas and stadiums during scheduled game times. As my Sports on Earth colleague Gwen Knapp argues, this is completely ludicrous -- like asserting that ESPN's College Gameday crew is simply shooting Saturday afternoon footage of the turf at Michigan Stadium, and if a bunch of football players "keep wandering into the screen, well, what are you gonna do?" -- and when Curtner made his case, he seemed to prompt a chuckle from federal judge Claudia Wilken.
Note: I'm not a law school graduate, but I'm fairly certain that most legal theories are not designed to work equally well as Improv set material.
In order to certify college athletes as a class, Wilken must find that their common issues of law and fact outweigh their individual considerations, including potential damages. O'Bannon and the other plaintiffs assert that each player whose likeness has been used without compensation has suffered roughly the same loss. The NCAA counters that those losses -- assuming they existed, which they do not, because Curtner also argued during the hearing that athletes don't have name, image and likeness rights in the first place, at least not in certain states, never mind professional teams, and did I mention how alternative pleading works? -- would vary wildly. After all, a star quarterback's likeness is worth more than that of a second-string offensive lineman, which in turn is worth more than that of a walk-on long snapper. As Curtner said during the hearing:
… there's a handful of players who might have value, and there's the great bulk of the players who have no value. And so … the hold-out, the star quarterback, the [Texas A&M Heisman Trophy winner] Johnny Manziel could say, 'I'm only going to play if you -- the broadcaster gives me a lot of money, right?' And everybody else is going to get nothing …
Curtner isn't wrong: Manziel's name, image and likeness have lots more market value than those of his third-string backup, because Johnny Football is a much better and more celebrated player. As a NCAA argument against class commonality, this is pretty good; as a self-defeating argument against the association's entire position, it's even better. How so? Because by acknowledging that some college athletes have more market value than others, Curtner is tacitly admitting that amateurism prevents all players from realizing that value.
Consider Manziel. He can't profit from selling T-shirts. Or signing autographs. Or appearing in commercials. Neither he nor his teammates can negotiate for a cut of the television and video game revenues generated by the
on camera stadiums athletic contests they perform in. Instead, college athletes are strictly limited to scholarships -- anything more, like a free meal from the wrong booster, triggers a "suspension." Which is really an industry-wide employer boycott. The campus sports system stymies competition. It denies market outcomes. This is why antitrust law exists in the first place. Break down the association's arguments, and they go something like this:
Defense No. 1: College sports price-fixing isn't actually price-fixing, because the Supreme Court once said so, according to our self-serving interpretation of three whole sentences.
Defense No. 2: We have never conspired to fix the price -- at zero -- of any college athlete's name, image or likeness for broadcast purposes, because we only sells access to our facilities. Have you ever watched the sun set over an Arizona beach?
Defense No. 3: The athletes suing us for price-fixing shouldn't be certified as a class, because each individual has a market value that can vary wildly, the same market value our price-fixing system denies, and did we mention the Supreme Court?
What was it that Remy said? Oh, right: throw stuff against the wall. See what sticks. It's enough to make anyone chuckle.
The Curt Flood of College Sports?
Speaking of class certification, the O'Bannon plaintiffs dropped a quiet bombshell during the hearing: in order to include current college athletes in their proposed class, they plan to add at least one current player to their suit. This is a prett-ay, prett-ay, prett-ay big deal, for a number of reasons:
* As Sports Illustrated's Andy Staples points out, a class consisting of only former players makes the case about revenues deriving from archival video and video games, while a class that contains current players makes the case about broadcast rights, too. The latter is where the real money is -- add up bowl games, conference networks, broadcast packages and the men's basketball tournament, and we're talking about roughly a billion and a half dollars annually.
Here's how the legal maneuvering works: the case has two classes, a damages class and an injunctive class. The damages class involves claims for name, image and likeness use during live broadcasts and in rebroadcasts and video games. It does not -- and will not -- include current players. Potential damages for this could be large, but on their own, they wouldn't necessarily end college sports amateurism as we know it.
By contrast, the injunctive class includes current players. It does not seek a payout per se. Instead, it seeks an injunctive order that would forbid schools from price-fixing. The result would be an actual competitive market, which would almost certainly put amateurism out of its misery and result in current athletes getting a larger piece of the college sports pie.
* Is an injunctive class absolutely essential? No. And yes. Let me explain. Suppose no current athletes signed on to the case. Wilken likely wouldn't grant an injunction -- after all, neither O'Bannon nor the rest of the plaintiffs in the damages class are currently being harmed by the NCAA's price-fixing.
Now imagine that the case went to a jury. And imagine that O'Bannon and the other former players won damages. The NCAA would still be in trouble. Why? Because each and every year, a new class of college athletes would exhaust their eligibility and become former college athletes, now armed with a slam-dunk antitrust case against the association. Injunction or not, college sports would have to change, or else face annual losing lawsuits with trebled damages.
Of course, there's a way for the NCAA to avoid the above outcome: settle with O'Bannon before the case goes to trial. Buy off the former players. Silence their anticompetitive complaints. A settlement would be costly, but unlike a trial loss, it wouldn't create future liability. The next class of former college athletes would have to file an entirely new lawsuit, go through the same protracted legal fight and hope for the best. In the meantime, the association could keep on keepin' on with the college sports status quo, and perhaps get lucky with a more sympathetic federal judge.
An injunctive class makes all of that unlikely. It creates a duty -- either via settlement or trial outcome -- to current players. And that matters. A lot. As a friend and close observer of the case puts it, adding an active athlete amounts to "sell-out insurance." It prevents the NCAA from simply opening up its overflowing checkbook and making everything go away.
* National College Players Association executive director Ramogi Huma reportedly believes that multiple current players will join the suit. Will we learn their names? Hear them speak out? Hard to say. During the hearing, plaintiffs' attorney Michael Hausfeld expressed concern about possible retaliation by the NCAA -- a concern that could lead to active athletes being referred to as John Doe plaintiffs, which as Staples explains is actually less paranoid than it sounds:
… those on the plaintiffs' side have said for months that they have current players ready to add their names to the suit provided the NCAA guarantees in writing that it won't retaliate by threatening the players' eligibility. No one trusts the NCAA to do the right thing and allow the players to proceed unhindered. It was only April when several high-profile athletic directors asked for anonymity before criticizing the NCAA because they feared NCAA officials would take out their frustrations on their schools' athletes. As we've seen how some of the sausage was made in the NCAA's investigation into Miami's football program, we've learned that some NCAA employees don't mind doing things the organization considers unethical to achieve a desired outcome. An NCAA attorney said in open court that there would be no reprisals against players who joined the suit. The plaintiffs still want that guarantee in writing. That's probably sound reasoning.
If they get that guarantee, a player -- or players, depending on whether the plaintiffs want strength in numbers -- will step forward. Any player who does will get ripped in the media and by fans who want to cling to the illusion that sports with billion-dollar television deals are amateur enterprises. That player will have to be strong. Coaches and athletic directors will want him to fail, because money diverted to athletes means less money for them …
Staples is right: the college sports powers-that-be don't want amateurism to change, any more than Marie Antoinette wanted guillotines instead of brioche. And with the exception of occasional loose cannons like South Carolina football coach Steve Spurrier, the people inside campus athletics who desire a more equitable system are afraid to speak out.
A few years ago, former University of Massachusetts guard Rigo Nunez told HBO's "Real Sports" that prior to the opening games of 1995 NCAA men's basketball tournament, a large number of teams from across the country -- including UCLA and Wake Forest -- intended to walk to the middle of the court, sit down and let the ball bounce, a demonstration that would alter "the whole scope of amateur sports." Instead, the players got cold feet. They were afraid of getting blackballed by the NBA. Afraid of retaliation from their own schools. Some are still afraid: I've tried to speak with Nunez and other former players about the planned boycott. None of them will go on the record.
While researching a law review article on the viability of a college athlete union, lawyer Thomas Frampton ran into similar reticence.
"A few have alluded to having certain memories of that time period and the organizing that happened, but declined requests for interviews," Frampton told me earlier this year. "Or they weren't willing to go into any substantive detail. A lot of the figures who were on the teams that Nunez has talked about are now working as assistant coaches or in the athletic departments at various D-I programs. I can understand their wariness to go into detail about how they almost brought the entire house crashing down."
True story: during a private conversation last spring, I asked a major college basketball coach about pay-for-play. He spent the next five minutes eloquently describing how amateurism is, in a word, bulls-t. When I asked what it would take for him to say the same thing with my digital recorder turned on, he sighed.
"Maybe if I win four national championships," he said.
Spend a bit of time around college sports, and what's striking is the pervasive sense of powerlessness. Of learned helplessness. Coaches, players and even administrators know the status quo is unfair. None of them believe they can do anything about it. And these are mostly a bunch of alpha males. Of course, they're mistaken. The people who constitute the NCAA's product -- particularly the athletes -- have the power. All of it. Without them, there's nothing to sell. (Besides stadium access, of course.) In 1969, former St. Louis Cardinals outfielder Curt Flood challenged Major League Baseball's reserve clause. He was ripped by the public. Ostracized by the sport. He lost his case -- but by going public and refusing to stay silent, he also inspired his peers, ultimately ushering in the era of professional sports free agency. Staples writes that active players joining the O'Bannon suit could make a similar impact. I hope so. I hope they speak out, too, and forego John Doe status. Other athletes might follow. Someone always has to be the first.
Cruella De Plonsky
Regular readers may remember University of Texas women's athletic director Christine Plonsky, an ongoing Labs
punching bag favorite. When we last checked in on her, she was arguing against giving college athletes multiyear scholarships because guaranteed educations are the last thing NCAA schools should be handing out willy-nilly. (By the way, did you know that most athletic scholarships are annually renewable contacts that can be revoked at any time, like when John Calipari recruits new players who are better at basketball than his old players? Fun fact.)
"Who gets a four-year, $120K deal guaranteed at age 17?" Plonsky wrote in an email to The Chronicle of Higher Education. "The last thing young people need right now is more entitlement."
Guess what? Plonsky is at it again. Still flogging the "entitlement" chicken. Soon after O'Bannon filed his lawsuit, the New York Times reports, Plonsky exchanged a series of emails with then Big 12 commissioner Dan Beebe:
… "has our NCAA board decided not to defend the notion that playing NCAA sports is not forced?" Plonsky wrote. "It is a voluntary sign-up. We're like a version of the Army."
Referring to student-athletes, she added: "We have things we have to do a certain way to raise funds and pay for the scholarships and other things that [student-athletes'] and their parents expect. I view these cases as being the result of the entitlement attitude we've created in our revenue sports" …
Right. That makes complete sense. By which I mean: it's utterly dunderheaded. For one, the Army involves shooting people. Travis Waldron of ThinkProgress says it best:
… whether participation in college athletics is compulsory is irrelevant. Employees in other occupations aren't forced into their jobs either, but that doesn't mean they don't have a reasonable expectation of compensation for their work. The comparison to the Army is especially odd, since the U.S. government pays members of the military. And other voluntary employees have the ability to bargain for fair compensation too, because they have the option to take their services to another employer.
College athletes can't do that, first because the NCAA has unilaterally determined that a scholarship constitutes fair compensation and that anything above that is a violation of its rules. And in addition, no competitor organization, with different rules and different compensation, exists …
Oh, and since we're already discussing "entitlement attitudes," a few questions for Plonsky:
Do college athletes and their parents expect Texas to have a separate women's athletic director making a reported $359,000 annually, a salary and position that likely wouldn't exist without athletic department gold-plating?
Do they expect the school's men's athletic director, DeLoss Dodds, to clear more than $1 million a year, even though he apparently can only handle working with one gender at a time?
Do they expect Dodds and Plonsky's combined salaries to be in the same ballpark as the $1.8 million Texas spent to cover total scholarship costs for 85 football players in 2011-2012 -- never mind that the school's athletic department boasted a $25 million operating surplus (read: profit) that same year, thanks largely to $103.8 million in football revenue?
Heck, do they expect Plonsky and Dodds to at least risk Army-style physical damage -- in this case, getting hit in the head without a uniform concussion protocol -- in exchange for that much money?
If Plonsky is truly concerned about the freedom-killing scourge of hands-out entitlement run amok, then perhaps she should invest some of her sizable earnings in a mirror.
"Police Academy" 8: Mission to Indianapolis
Weakened by staff turnover. Stung by public criticism. Looking in vain for leadership. Weary of embarrassing scandals. According to recent reports by Sports Illustrated and Yahoo! Sports, the NCAA's enforcement division is a reeling, wheezing mess. And according to Yahoo's Pat Forde, that means one thing:
… ready, set, cheat. That's the tacit message the NCAA currently is sending to its membership. The time is now to break the rules.
If you're an agent or runner looking to pay your way into a player's inner circle, go for it. If you're a coach looking for a corner-cutting advantage in recruiting, take a shot. If you're a player or recruit seeking an impermissible benefit or an academic quick fix, no time like the present …
Open cases are wallowing in limbo. There is almost no street chatter about new cases underway …
Forde makes this sound like bad news. And it is. It's bad news for NCAA president Mark Emmert. For his demoralized staff. For anyone and everyone who thinks the association's enforcement of amateurism is as vital as, say, the Food and Drug Administration's enforcement of bacterial contamination standards for beef.
But if you don't buy into the college sports status quo? This is wonderful news. Akin to learning that your local traffic camera -- you know, the one that tickets cars for going 32 miles per hour in a 23 mph zone -- is on the fritz. Schools conspire to deny athletes basic market rights, creating a vibrant underground economy. They then attempt to police said economy with all the unshakable professionalism and steely competence of Hightower and Mahoney. Oh noes! The NCAA turns a silver-platter investigation of amateurism violations involving the University of Miami into an epochal botch job? Good. Enforcement cases that generally lead to a reduction of available athletic scholarships -- punitively culling the very same educational opportunities the association otherwise touts when defending restraint of trade -- are now "wallowing in limbo?" Even better.
Forde seeing things differently, lamenting that it's "harder than ever to catch a cheater." He blames Emmert for being a glory hound. (Not coincidentally, Sports Illustrated reports that association staffers call him "King of the Press Conference.") He faults newspapers for abandoning investigative sports reporting. He argues that the association needs to offer higher salaries in order to attract better investigators. Ominously, Forde warns that the "temptation to cheat without getting caught" is growing and that "cheaters are continually getting smarter":
… coaches are using "burners" -- cheap secondary cell phones -- to make phone calls that skirt the rules. They're buying pre-paid gift cards for small amounts for players and recruits. They're buffering themselves from agents and bag men through third parties. Money is changing hands through relatives and friends of athletes instead of the athlete himself …
Much like the NCAA, Forde seems to regard the above economic activity as a problem. Something to be stamped out. Like cancer. This is a misapprehension. The college sports black market isn't a disease. It's a symptom. The underlying pathogen is amateurism. Get rid of the association's beleaguered cops -- and the rules that make them necessary -- and the burners and bag men go away. They become superfluous. You know why student employees at campus cafeterias don't attract runners and aren't compensated for their work with pre-purchased gift cards? Because it's not illegal to give them paychecks.
Napoleon -- Bonaparte, not Dynamite -- once said that "one should never forbid what one lacks the power to prevent." They still teach French history at colleges and universities, don't they?
* * *
The Beginning of the End
No matter what happens in the O'Bannon case, amateurism is dead. Finished. Might as well be chasing Brad Pitt around the streets of Philadelphia. Only don't take my word for it. Ask the credit rating agency Moody's, which recently threatened to downgrade the NCAA's debt -- not because the association is hurting for cash, but because its entire business model is unsustainable.
Thing is, the people who run big-time college sports aren't dumb. They see the train coming. They know they're running a shell game. In a recently unsealed O'Bannon deposition, Horizon League commissioner Jon LeCrone referred to scholarships as "some sort of salary." A fixed salary. Other O'Bannon documents show former NCAA president Myles Brand essentially admitting that the entire system is a sham: "The presidents have been professing that they do not want (to) support commercialism, most especially when student athletes' images are involved," Brand wrote in an email. "Of course, the conferences and schools are already doing that -- for example, the Pontiac ads that they complain about are a staple in the fall football season, which they control. The presidents want it both ways: they want to be able to rail against commercialism and they want the revenue that comes from corporate ads." In a shameless legal maneuver to rival anything pulled by Lionel Hutz, Big 10 commissioner Jim Delany submitted a statement to the court claiming that if athletes end up getting a cut of television revenues, the schools in his conference might drop to Division III --- and after ample and deserved ridicule, he later admitted he didn't even write his own declaration.
All of this begs a question: why is the NCAA fighting so hard against the inevitable? Strip away amateurism, and schools stand to lose money. Power, too. No question. Moreover, athletes stand to gain. Still, it's not as though anyone involved is about to go broke. Not when the Pac-12 is scheduled to earn $3 billion in rights fees over from ESPN and Fox over the next 12 years. Not when the Big Ten Network could eventually earn an extra $200 million annually just by adding Rutgers University and the University of Maryland to its cable subscriber footprint. So what's the holdup? Sheer greed? Fear of change? Unsinkable faith in the amateur ideal? (Editor's note: Ah ha ha ha ha ha ha ha. Ha.). The Olympics gave up the no-pay-for-play ghost years ago. The Games have never been more lucrative or popular. Alabama fans care about watching football. They won't care if the school's athletic department pays top-ranked recruits more and coach Nick Saban less. Dump amateurism, and the entire tacky, unsavory, disingenuous morass exposed by the O'Bannon case disappears. Like magic. Poof. No more convoluted legal arguments. No more embarrassing emails. No more Keystone Kops policing. No more LOL moments in federal court. Just college students playing sports, and earning a market rate for the hard work of making the rest of us happy.
Would that really be so terrible?