O'Bannon Stuff: Actual Judge, Actual Lawyers
OR: Hear, hear, let's have a hearing
![simpsons-lionel-hutz[1]](https://mgoblog.com/sites/mgoblog.com/files/images/UV_B933/simpsons-lionel-hutz1.jpg "simpsons-lionel-hutz[1]")
People stood in front of a judge and talked yesterday, which happens all the time but only rarely is it the Ed O'Bannon case, which has been going on for years and will continue to go on until the sun is a feeble red dot in the sky* and people come to the conclusion that the NCAA is nuncupatory.
O'Bannon and his crew are trying to get a class certified, which would take their case from a few irritated dudes to everyone who has or is playing NCAA sports right now. Results are unknown at the moment, but the gist of it is that the NCAA is in trouble. The judge asked why the O'Bannon folk didn't have any current athletes as plaintiffs if they were trying to certify a class of NCAA athletes; O'Bannon's lawyers said flat-out they would add one. Cue the obvious reference:
The Curt Flood of major college sports is probably on a campus somewhere in America right now. He's probably participating today in some "voluntary" summer weightlifting or conditioning session. His head coach probably makes seven figures, and his school's conference probably signed a megabucks television deal in the past few years.
Curt Flood lost, which no one not actually employed by an athletic department wants to see happen here. The plaintiffs have been saying they have current guys interested for a while but have left them out so far because they didn't want to expose them to retaliation, which… honestly, would be the best possible thing for them. Can you imagine if a kid was added to the lawsuit and the NCAA took away his eligibility? The resulting war would make Helm's Deep look like a Kentucky home game.
SI says legal experts believe the class will be certified, and highlighted a Lionel Hutz argument from the NCAA:
"If you go in front of a camera and know you're going in front of a camera ... you're fair game for TV," Curtner said. "Cheerleaders, mascots, lots of people appear in these broadcasts, and there's a uniform practice in this country that these rights are not individually sold."
Curtner, in turn, drew a skeptical chuckle from the judge when Wilken subsequently asked, "So what is it the colleges are selling when they sell rights to show their games?"
"They are selling exclusive access to their stadium or arena," Curtner responded. "They're telling CBS, you can come in and broadcast this, and no one else can. ... That's all they're selling. They're not selling individual [players'] rights."
Sonny Vacarro said that's the dumbest thing he's ever heard, and while I've been on too many Ohio State message boards to concur it's up there.
The NCAA is going to lose this, right? I can imagine no other way it goes when almost a decade ago various people within the organization itself were asking the same question I have: when literally every move you make is focused on increasing revenue to the detriment of tradition and even common sense, how can you argue that amateurism is, like, a real thing?
"The biggest concern I have is that such a position really does allow for the maximum commercial exploitation of the [student-athlete] and if that occurs, will it be long before we can defend not giving them a piece of the profits?"
But weird stuff happens with lawsuits, I guess. If they do go ahead with the whole-enchilada lawsuit with current players and everything, it is a higher-risk strategy than going with the slow-and-steady approach other reformers have undertaken. But with NCAA correspondence consistently acknowledging the plaintiff's argument, risk seems a relative term.
"off the record, most of those I've spoken to at the NCAA and CLC are in favor of the players being more identifiable not less." –EA sports guy
*[astronomically incorrect, yes, I know.]
The word "nuncupatory" doesn't actually mean anything that works there, does it?
Correct. Doesn't work there at all. Which probably means it's some super-meta joke that we're just not getting.
It would also help if the student was an NFL prospect near his first eligible draft...again, like Clowney next season-ish. That way if the NCAA DOES retaliate like dicks and take away his eligibility, the war would ensue on principle, but the kid would just bolt for the NFL and not get completely screwed.
Almost all employers put some standard in before they will hire people, whether that is a number of years of experience, a college degree, a graduate degree, whatever it may be. Unless of course you are working at McDonalds, in which case not so much.
He lost because the NFL is a "closed shop" where all players belong to the NFLPA and collectively bargain with ownership. The players and owners had bargained for the 3 year rule, and it was included in their CBA- the contract between the owners, collectively, and the players. Thus, the court would not disturb the "unique bundle of rights" that was agreed on by the parties to that negotiation, as it was one (important) term in a contract where everything is haggled over. The only unfair thing is that the NFLPA can bargain away the rights of not only current players, but future ones as well.
However, the message is that the courts really don't want to meddle in a CBA if they can avoid it, and the freedom of contract/a massiive labor contract between two large, sophisticated groups (they both have tons of lawyers) trumps the individual right of prospective members of one of those groups. From the opinion:
See Clarett v. Nat'l. Football League, 369 F.3d 124, 135 (2d. Cir. 2004).
Link to pdf of 2nd Circuit ruling: news.findlaw.com/hdocs/docs/nfl/clarettnfl52404opn.pdf
Scholarly article on the case: http://scholarlycommons.law.hofstra.edu/cgi/viewcontent.cgi?article=1444&context=hlelj&sei-redir=1&referer=http%3A%2F%2Fscholar.google.com%2Fscholar%3Fq%3Dclarett%2Bv%2Bncaa%2Bcite%26btnG%3D%26hl%3Den%26as_sdt%3D0%252C14%26as_vis%3D1#search=%22clarett%20v%20ncaa%20cite%22
But this case isn't being done for us. It's being done for the people who actually sweat for our entertainment.
It's becoming increasingly clear (the EA sports quote is a good example) that the NCAA gives negative fucks about exploiting its student-athletes. If nothing else, they could use a good kick in the teeth for their greedy gall, even if it changes the landscape of college sports.
I guess I'm just one of those people who think they're sweating for their paid-in-full education and living expenses. The fact that it entertains me is a bonus. Pro athletes sweat for my entertainment, which I feel is actually less entertaining, and where college football would to go if this won.
I really wish there were semi-pro leagues for football and basketball so the kids who don't give a shit about college can go pro whenever they want to (like in baseball and hockey).
I would love it if there were a semi-pro league so that the super-talented players who just want to play football/basketball can go there and make their money. An 18 year old kid who is the best high school player in the nation isn't thinking about going to college to get a 4 year degree and go into the workforce in accounting/engineering/teaching. He wants to play football/basketball and get paid the big bucks as a professional. He should have the option of getting paid that money, but not when he's in college as an amateur athlete.
I would still watch college football if the 5* players aren't on the field because I watch the games for the teams, not for individual players who make up the team. Michigan/Oklahoma/USC/Notre Dame football is still going to draw the crowds whether they have the superstars on them or not.
Basketball players have options. There is the NBDL. I don't think it gets enough publicity as an alternative to college. There also are many, many overseas professional basketball leagues. And of course they can just wait a year and then enter the draft.
I agree that football could use its own development league though.
I agree, and it wouldn't be many players either. If you took the best 3-4 players off of every BCS conference team, the on-field product wouldn't be a whole lot different. You wouldn't have the absolute beasts like Clowney, but you'd still have a bunch of really good players.
Has it occurred to you, as you busy yourself with being the protector and savior hero of the trammelled classes... that the majority of college athletes like them too?
"Sweat for our entertainment" is both a hilarious and oblivious description. College athletes love playing the game, love the fans, love what they do.
I think the majority of them would like a stipend (a significant, meaningful one) of some type, and I think that's long overdue. But crushing the system is only going to strip these opportunities away from the majority of them.
I think I'm just overly optimistic that this case wouldn't completely fuck up the entire system. Maybe I'm underestimating the greed at work here. After thinking on this a while longer, I'm hoping this gets successfully certified as a class-action suit, but then O'Bannon loses. That might be enough of a symbolic victory.
Yes, college athletes love playing the game. But not only will most of them go pro in something other than sports (WHOA that was cheesy), but in D-I, an awful lot is demanded of these kids. Regardless of how much they love it, they commit an awful lot of time and effort to sports, and it's because much is expected of the product on the field.
I've never understood the argument that the college presidents who make up the NCAA give "negative fucks about exploiting [their] student-athletes." For most of these guys, college sports is a money sink. Overall, college sports is a money sink. All the presidents can do is try to spread the cost as much as possible so as not to burden their non-athletic students with it.. And you call their efforts "greedy gall."
The NCAA isn't some external evil force that controls "its" players and gets a reward for greed. Its a bunch of committees made up of university and college presidents, plus a staff to serve them.
I'd also argue, independent of my argument that people remember what the NCAA actually is when they talk about what it does, that the NCAA should have no rights to use the images of players except in the original works (film and stills of games, practices, and press conferences). No games, no adverrtising (except using original works), etc. Unless the presidents agree to py the players.
The organization is a non profit organization and besides the coaches, most of them do not make that much money compared to their responsibilities.
No. I can't honestly say I'm rooting for O'Bannon. I think the world that he would create, whether purposefully or not, is one in which there is very little room for nonrevenue sports like tennis, soccer, track, swimming, or even semi-prominent ones like baseball, lacrosse, or hockey.
Let's face it: Football and basketball subsidize most everything else. I'm OK with the "exploitation"** of a few high-profile football players in exchange for there being tons of opportunities for non-football athletes to participate in their chosen sport. I really fear that if colleges are forced to compensate athletes in the way O'Bannon is demanding, most will slash "leech" sports left and right in order to be able to do so.
A perfect example is the way Title IX is approached. Title IX's champions like to say that think schools should pursue compliance by expanding opportunities and spending more money. In the real world, money is finite. So schools cut, rather than expand. Because they just don't have the money to offer 30 sports.
**If, in this day and age of rising tuitions, you can call free tuition, food, and health care "exploitation."
Pretty much how I feel. The deal of being a student-athlete is good for the vast majority of them, who aren't marketable and won't end up making pro sports money. It may be unfair for a small number but I don't know how you reform things without really screwing up the economics of the whole structure.
I'm with this crowd. There might be some who argue that a four-year scholarship with room and board isn't much, but as someone who's staring down 250k in student loan debt at 6.5-8% interest, I beg to differ. Four free years is more than adequate compensation, especially for those athletes (most of them) who will never go pro.
Also, we need to remember that Michigan is one of very few schools who operate in the black with regard to athletics. Can you see Maryland or Eastern Michigan paying their players when they're busy cutting non-revenue sports and stealing from the general fund? Not a chance.
This partly depends on the future of college tuition, which IMO is headed for a major crash in the next decade or so. As someone in a decent amount of debt for school, you do have a point about what constitutes "exploitation."
I guess I'm behind O'Bannon purely on principle rather than due to the effects of a win. The NCAA is appallingly crass in this matter. Their PR machine rambles on about their committment to not exploiting student-athletes only for televised games to feature promos for the EA video games and the announcers start calling the player avatars by the names of their real-life counterparts. So they're not just using student-athletes for their own purposes...they're using them for the purposes of corporations. And that's a bit sickening.
Brian's point that every move the NCAA's taken has been to increase revenue at virtually every cost stings me a bit, and this case is a symbolic opportunity to say "STAHP."
I don't see how tuition will ever crash. Schools have too many fixed costs, and they've got too many long-term obligations to meet to their faculty, for them to significantly reduce tuition. Schools would have to make some really ballsy cuts (which they are probably opposed to ideologically) for it to work. I don't see it happening. I think the rate of tuition increases will slow, but that's it. No one will ever be able to pay their U-M tuition by waiting tables again.
http://business.time.com/2013/02/08/schools-suing-graduates-for-defaulting-on-loans/
Some schools are actually starting to sue alumni who can't afford to pay back their financial aid. I think that with a tight job market and rising tuition, even the students who can afford it will be scared off by the risk of a costly lawsuit after earning their degree in addition to crushing debt. Alternatively, schools could cut back massively on financial aid to alleviate their own risk.
Either scenario (or both) could lead to a sharp drop in college attendance, which can only result in a drop in tuition to pull the students back.
I think that with a tight job market and rising tuition, even the students who can afford it will be scared off by the risk of a costly lawsuit after earning their degree in addition to crushing debt
But here's the problem: without a degree, that job market gets even tighter. It's become like a racket - colleges know that we need the degrees they offer, so they feel free to charge us exorbitant rates. I do think we may see an increase in community-college enrollment, but that only covers the first two years of school. There are the University of Phoenix and whatnot, but they're never going to have the prestige of a traditional four-year school. I think demand to attend schools like Michigan is pretty inelastic.
And again, there's the issue of meeting fixed costs and obligations, which is the primary justification for lofty tuition rates at the moment. How do you pay for the upkeep of all those buildings and for your ex-faculty's retirement if you're slashing tuition? Also, colleges have a limited amount of space. A business can reduce prices and sell a lot more product, but a university with room for 40,000 students can't suddenly let in 60,000. The economics behind reducing tuition don't really work that well.
Even for entry-level jobs, a college degree isn't enough. Now you magically need five years of experience doing the same thing. I honestly the next generation just might settle for a fairly crappy job they can get with a high school diploma or an associate's from a CC rather than get saddled with $100K in debt and/or getting slapped with a lawsuit because the college degree didn't do what it was supposed to do.
Well in any event, I do hope you are correct because what's happened to the current generation of students and recent grads just plain sucks.
The NCAA is appallingly crass in this matter.
I do freely admit that siding with the NCAA feels like taking a huge bite of a dirt sandwich. When Alabama is putting waterfalls in the locker room, yes, there is too much money running around. The individual ADs and schools have sacrificed a lot on the altar of MOAR MONEYZ.
I would absolutely get behind certain other initiatives to rein things in a little. A salary cap for coaches would be a great start, and I would never miss the extra realism of wink-wink player representation in EA games. Or, perhaps a certain portion of jersey sales with a particular number on them can go toward a trust fund, which that player gets upon graduation. (And only graduation, not simply declaring for the draft.) You could even then put "Robinson" on the #16 jerseys to avoid the questions about what if the backup punter also wears 16. Things like that would be much better solutions than the sort of things O'Bannon is talking about.
There is too much money floating around to feel good about siding with the NCAA, and their arguments are often dumb. But I just can't shake the feeling that O'Bannon is being just as much a gimme-gimme as the NCAA. I don't think "the NCAA is greedy, so O'Bannon is justified in doing so as well" would make a good argument, and what I see out of O'Bannon is that he seems interested in only the "1%" of student-athletes, as it were.
Counterpoint: Couldn't college sports survive without the high coaching salaries and ridiculously expensive facilities paid for on the backs of a school's football and basketball players? Isn't that the real difference in the last 50 years?
Most schools don't have expensive facilities outside of football and basketball. And yes, schools could spend less there. But that is something that all of the athletes enjoy and use. Why is that a bad thing? I'm not sure I want our tennis team to have crappier facilities so that a few of our football players can get paid.
I wouldn't mind the NCAA instituting a cap on how much a school can spend on coaching salaries or capital investments in facilities. Wouldn't mind at all. But if the argument is that these things are proof of exploitation of college athletes,** I think the NCAA could severely undermine it by bringing in athletes to testify that their choice of school is often based on coaches and facilities. It would be hard to say someone is being exploited by fancy weight rooms and player lounges when the athletes freely admit they are productive recruiting tools.
**In the sense that their likeness is being used to enrich coaches and the school, which I believe is how the argument goes.
Most of those facilities are built with Alumni donations and in many cases those donations are mades specifically for building said facilities.
over the last twenty years, so the exploitation argument IS a little messy. And when most schools lose money on sports. . . it's hard to justfify much of any of it. Michigan is in a very lucky position. Fixing all this probably starts with a lot more of our taxes going for education, period, and dialing back some of the hyperprofessionalism that goes with it. Few of us, including me, would be tickled by some of the more common-sense solutions, and they aren't in the offing anyway. . .
I came to post this exact sentiment. I don't know that I necessarily want O'Bannon to lose, but I think that sports fans are cheering excitedly for him to win without considering that they have no idea what they will be getting in the post-O'Bannon world. Sometimes its really fun to pump your fist and scream anarchy, but it doesn't really mean you want to live in an anarchic society.
I have been of the same opinion for a long time and agree with you 100%.
I am generally against exploiting people and such, but you have to realize that maybe 20 ADs in the country make a profit. So, what we're shifting to is the high likelihood that for any school to remain profitable, they will just cut basically all of the non-revenue sports and get rid of thousands of scholarships for otherwise deserving student-athletes.
EDIT: And only a few schools could really put out enough money to attract athletes in revenue sports.
This is a pretty good point. I think this comes down to the plan for what happens if O'Bannon wins. The following and more are all on the table:
-Salaries of coaches and staff get cut
-Non-revenue sports get cut
-Scholarships get "cut," but the revenue that goes to the students as a result of the class action funds effective scholarships
-NCAA stops being greedy twats and using student likenesses to increase revenue. This includes telling EA to F off
-Revenue sports turn into pseudo-minor leagues
That's the catch - in principle, the idea of paying players is fine to some (still not for me, but that's not important). It's the how that gets tricky, even for those backing O'Bannon. Like you said, that money has to come from somewhere, and it's likely that it gets taken from someone we don't want it to be taken from. Coaches will still make bank, because that's supply and demand. And "NCAA stops being greedy" isn't really feasible.
The money could come from the TV rights, or the jersey sales, or the video game rights, or ticket sales, or consession sales...
Schools already get that money now. And even with it, most are unprofitable.
That money is already in the budget though. The choice you'd need to make, is what expenditures you're not going to make, in order to make additional ones.
Let's say school A makes $10 million dollars. That means they also spend $10 million, Now you want to add $1 million in expenditures, without the revenue part moving. So you need to take $1 million away from something else. What is that something?
That probably depends on why the players would be getting the money. If it is a royalty from jersey or video game sales, the money would probably need to come from those profits. If it is money for services rendered then then the money would probably best be drawn out of funds that would otherwise go to compensate coaches and staff (although that's probably not realistic)
To make a more general point, my personal opinion is that scholarships should be increased to cover the full cost of attendance, not just tuition, fees, and books. I think this solves a lot of the issues regarding how much to pay players. I do think, however, that players should get a share of the royalties from products that cash in on their likeness. I don't think that either of these things would brake the bank at any major university.
It doesn't depend on "why." A University makes a certain amount of revenue from athletics. Some of that revenue comes from royalties and video games. To use any portion of that money REQUIRES a University to spend less elsewhere. In general, Universities are not making profits from their athletic departments. In fact, most athletic departments are losing money. They cannot simply stop hoarding the cash. To give away money, most athletic departments will be losing MORE money. They have to make cuts. There is no emotion or reasoning that matters. It doesn't matter "why the players would be getting the money." It's just plain, simple math. If the athletic department loses money, they have to take the money from the budget of the rest of the University, or they have to take money from other areas of the athletic budget.
You don't think that the ADs budgets are line-itemed in such a way that they know exactly where all of the money comes from? Yes it all ends up in one big pot at the end of the day but it absolutely matters where the revenue comes from. For example losing X amount of money from jersey sales is different than losing the same amount from ticket sales because the entire jersey sale revenue doesn't go to the university. Part of it goes to the store that sold the jersey and part of it goes to the clothing company, etc. It's entirely possible that a school doesn't have to absorb as much of a loss from jersey sales as it would from, say, ticket sales where almost the entire thing is profit for the university.
Also, I don't think we should necessarily assume that that cutting players into this business is a zero-sum proposition. It's possible that universities would be able to sell more stuff (and make more money) if you could actually attach a players likeness to a product. I'm sure Dave Brandon would have loved to sell Denard Robinson action figures, posters, and just about anything else he could put 16's face on.
No one is saying that the Ad doesn't know exactly where the money is or comes from. The point is that even if they know that 10% of money came from jersey sales or video games they can't AFFORD to give that money up.
It's funny that some people on here think that just because UM does very well as an AD that we aren't nedcessarily the majority. Many AD's can't make ends meet as it is so simply taking giving money to players that comes from jersey sales makes it that much more difficult to operate, thus cutting other sports, decreasing scholarships etc would become a necessity.
To close I will just say I'm in the camp of those who think saying players get no compensation is ridiculous. When I graduated from medical school I was one of the lucky ones who only had about 150,000.00 of debt while many classmates were well over 250,000.00. That's a hell of a lot of money to many people. Also, the comment someone made that implied players deserve more than tuition and all the other things that go along with an athletic scholarship because they work hard is a little off putting too. I would argue that I put just as much time in "working" during my years attaining my degree as any athlete did. Sure it wasn't the physical work they do, but I would rather do that any day that sit around studying all day. My point is all students (well most anyway) work really hard while at university.
* edit- Also, aside from the financial things that the athletes get they also get exposure to top rate facilities, coaching, medical staff, a huge stage to showcase their talent etc to help them get to where they want to go.Imagine what the millions of unpaid interns around the world would give for that opportunity. What they receive for their time in university should never be considered nothing.
I completely understand what you are saying. The point I am trying to articulate (apparently unsuccessfully) is that you and a number of other people on this board are making arguments that rely on assumptions that you have not shown any evidence for
You are saying that schools have a set number of dollars and if they are forced to pay players they will have to pull that money out other programs.
I have not seen anybody make an argument that this needs to be the case. Why is it so unreasonable to believe that if a school could actually profit off of a player's likeness the school might actually generate considerably more revenue, thereby breaking out of this dichotomy that you have established? Every 12 year old Michigan fan would love to have as much stuff as they could get with Denard Robinson's face on it. Imagine how much money Florida would have made if they could have sold more Tim Tebow products. This isn't just limited to big name superstar players at major schools. Every school has passionate fans who would probably be willing to shell out more money for more stuff.
Having to pay players would give universities more leverage in negotiations with athletic apparel companies. Adding another expense would give Michigan a justifiable reason to demand a better deal with Adidas than they would otherwise have. This is why I keep insisting that it's important to consider the source of all of the ADs revenue.
I also don't totally understand why you and others are assuming that the first thing to go will be non-revenue scholarships. We've seen an explosion in television revenue in recent years but not a corresponding explosion in new varsity sports. What makes you think that a restriction in revenues would lead to a reduction in scholarships instead of, say, a slowdown in the construction of new buildings or a reduction in support staff? Before you give a knee-jerk "nobody is going to voluntarily cut their salaries" reaction consider the PR headache that a university would have if they cut scholarships but continued on their building binges and out of control payments to coaches and staff.
Regarding your point about not thinking that athletes deserve any extra money, I think you're confusing fairness with economic reality. Graduating from Medical School and becoming a doctor is extremely admirable and very impressive, more impressive than anything I've ever done, but the argument for increasing scholarships isn't really about how hard athlete's work but about the econmic value of their work. Michigan is going to pay a Physics professor more money than an English professor because the physics professor is going to generate more revenue for the university and therefore has a higher market value. How hard the English professor works compared to the physics professor is sort of irrelivant.
Medicine is certainlly more important to society than sports, but sports is a much bigger business and therefore can demand bigger payouts. That's completely unfair but it's also a reality that isn't going to change anytime soon.
I think you're out of your mind if you think Doctors are less valuable than athletes. If you're talking strictly in terms of money and what they make than yeah, for some reason society has seen fit to pay athletes way more money than Doctors. But if you're taking about their value to society or even a University with the money they can bring in than I have to disagree. My post would be more difinitive if I had read the entirety of your last post, but as I found it tl;dr, it isn't.
* edit- After going back to read your post (I thought it disresepctful that I commented without reading the whole thing) I can see you weren't talking about a physicians value to society, so I apologize for that. What I still disagree with is your assertion that healthcare is smaller business than sports. I mean, you do understand that every person in our country utilizes the healthcare system to some capacity right? And when they do that it generates money for the institutions?
I know there are a lot of sports fans around but literally everyone at some point pouors money into the multibillion dollar industry that is the healthcare system. When you think of how select a group professional athletes are and then consider that the healthcare system (at least in my country) is one of the biggest employers in the country you begin to see how huge the budgets are in relation to sports. In healthcare it isn't just doctors but nurse of all kinds (of which there are many), cleaners, physiotherapist, occupational therapists, maintenance, sterile processing, receiving, shipping, I could go on for hours (and that is for virtually every hospital. In our country we have roughly 35 million clients, many of whom will access the healthcare system multiple times per year. In your country there is what...350,000,000 clients?
When you consider exactly what it is you're asserting when you say that sports is bigger business than healthcare I think you'll agree you misspoke.
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