Bring Out Your Dead Institutions: an O’Bannon Post-Mortem

Bring Out Your Dead Institutions: an O’Bannon Post-Mortem

Submitted by BiSB on July 3rd, 2014 at 9:35 AM

Stacks on stacks

Oh, hey there. We have to stop meeting like this.

We don’t meet. We’re the same person. I just hit Ctrl-B and I’m you.

So I’m Tyler Durden, and you’re… Robert Paulson? No, that was Meat Loaf. Wait, Edward Norton didn’t have a name in that movie, did he? Huh. I guess I never realized that.

And neither of us knows Helena Bonham-Carter. But watching Michigan football these days is like punching yourself in the face in a parking lot, so I guess that works.

I’ll be over here making soap if you need anything

Anywho, the O’Bannon trial ended last Friday, and it’s time to poke the corpse with a stick for a while. Many people spent the weeks and months up to the trial saying that the NCAA was probably screwed. Many of those same people spent the three weeks of the trial declaring that the NCAA was DEFINITELY screwed (and mocking them at every turn). And then came the last day of the trial, in which the plaintiffs had a bad day and some people declared that the NCAA was only mostly dead. So, to clear things up, I’ll make the following nuanced legal prediction:

The NCAA remains deeply and profoundly screwed. I think.

We shall delve into the ways, and the likely outcomes, but if you don’t want to read beyond the impending blather and the jump and the more blather, you may enjoy this Fourth of July weekend comfortable in the knowledge that Mark Emmert will, in short order, have a sad.

So why did everyone say the NCAA might not have to go on the cart?

Well, the thing about anti-trust law…

[returns to rendering fat]

…is that it isn’t the remedy for all ills caused by gigantic douchey monoliths. The plaintiff (O’Bannon) has the burden of showing violations of antitrust law, not just terrible behavior; the NCAA could have burned the entire 1995 UCLA Bruins basketball at the stake and it wouldn’t be an antitrust violation. As sports law and antitrust guru Michael McCann put it, antitrust law is “about protecting competition in the marketplace for the benefit of consumers and marketplace participants.” O’Bannon has to point to a specific defined market that the NCAA is harming, and to identify who the buyers are and who the sellers are in the market, as well as the specific harm created to consumers or market participants. If you can’t figure out how that works when we’re talking about college sports, you’re in the company of at least one federal judge.

The plaintiffs struggled to articulate these things at the weird closing argument Q&A the judge did, because it doesn’t really map to college football very well. But while it is understandable, if O’Bannon can’t explain how the NCAA is harming consumers in a specific market, the NCAA could skate.


Injunction Junction: What’s your Function

Injunction Junction: What’s your Function

Submitted by BiSB on June 13th, 2014 at 10:29 AM

NCAA Athletes Lawsuits

Alternative Title: O’Bannon… You Came And You Sued For Injunction…

Alternative Alternative Title: Selling Little Bottles of OLB #9

The O’Bannon antitrust trial started this week, and because trials are fun and listening to the NCAA’s lawyers is amusing as hell, let’s talk about it. To properly understand this, we have to go back to the year 1890 and the passage of the Sherman Antitrust Act…

Sweet tapdancing hell we are NOT doing this again. We’re not going back to freeking nineteenth century.

Oh come on, this stuff is interesting.

Plaintiff's attorney

I just died of boredom.

Fine. But we at least have to go back to the year 1995. Ed O’Bannon is the best player in college basketball; he averages 20.4 points and 8.3 boards and wins the Wooden award, and his UCLA Bruins win the national title. So that was cool. Then, a decade later,  a younger relative showed O’Bannon a copy of EA Sports’ NCAA 2007, which contained some classic teams, including the 1994-95 UCLA Bruins. O’Bannon noticed that (a) he was in that game, and (b) he hadn’t been paid anything for his appearance in the game. This, he deduced, was crap.

But he waived his rights to get paid for that, right?

Indeed. All athletes, before they play a single second, have to sign a waiver that relinquishes any rights they have in their likeness. The NCAA can use any player’s image for whatever the NCAA sees fit, and owes the athlete nothing. In fact, as you may know, if players DO get paid for their likenesses during their playing careers, they get suspended for an entire season. No, wait, that’s pot. You get suspended for one half of one game. But still, athletes can’t get paid.

There is, however, a way to get around that waiver. If the NCAA violated the law in forcing O’Bannon and other athletes to waive those rights, the waiver are invalid. If only such a law was passed during the Harrison Administration (NNTHA) that Bolded Disembodied Alter-Ego would let me discuss…

Sigh. Fine, just make it quick.

Other plaintiff's attorney

WOO. The Sherman Antitrust Act makes certain anticompetitive behaviors by entities that have dominant positions in a given market illegal. It’s not against the law to create a monopoly, but if you have one, you can’t use it to restrain trade or hurt consumers. If you’re Microsoft, you can install Windows on 80% of all computers, and that’s not a problem. If you use that 80% market share to bundle everything with Internet Explorer so people won’t use Netscape Navigator, that IS a problem.

Yes, the problems of the 1990s were bizarre in hindsight.

And what exactly are the plaintiffs whining about?

When athletes start playing, they have to sign a waiver that surrenders all of their name, image, and likeness (“NIL”) rights to the NCAA. The NCAA can then use those rights however they see fit without compensating the athletes in any way. Two ways they use athletes’ NIL rights are in licensing for video games and licensing for live television broadcasts of games, promos, etc.

For video games, it’s a pretty easy case to make. The NCAA used to grant EA Sports the right to develop and sell video games with all of the FBS teams and players, and in exchange EA Sports would add a little depth to the Scrooge McDuck coin vault swimming pool. The NCAA has tried, half-heartedly, to argue that it is a coincidence that the rosters of every college team have every player with the appropriate height, weight, position, number, skin color, athletic characteristics, and general appearance. This issue bleeds over into other not-about-Player-X-but-definitely-about-Player-X stuff like jersey sales; sure, Michigan wasn’t selling Denard jerseys. But they were selling Denard jerseys.

The other issue is television rights. Right now, conferences sign television deals with networks, networks televise games, networks pay conferences large sums of money, conferences distribute that money among the member schools, and member schools give players… uh… the satisfaction of a job well done. O’Bannon is arguing that part of the value of those broadcasts are the result of the NIL rights that the players have to sign over to the NCAA.

[AFTER THE JUMP: More of what we're talking about here]

Bust a CAPA

Bust a CAPA

Submitted by BiSB on March 27th, 2014 at 10:34 AM


Colter pulled a hamstring during this press conference

If you hadn’t heard, Northwestern’s football players won a court thingy yesterday. NLRB Regional Director Peter Sung Ohr ruled that Northwestern’s players meet the definition of employees, and can therefore form a union if they wish. You can read the ruling here, but why do that when I can summarize it for you with amusing banter?

Bring in the inquisitive bolded alter-ego!

Hey, you can’t tell me what to do. You’re not my boss.

Well that’s the question, isn’t it?

God you are insufferable. Okay, fine. I’ll play your game. GEE WHIZ, WHAT HAPPENED?

Well, to understand fully, we need to go back to 1935…


…when Congress passed the National Labor Relations Act. Under the NLRA, private sector employees have the right to join unions and to collectively bargain for stuff like wages, salary, better candy in the vending machines, and for the boss to stop using words like “synergy” and “Tiger Team.” The catch is that it only applies to employees. The NLRA, for example, doesn’t give students the right to form a union. A person is an “employee” if they perform services in exchange for payment, and are under that person’s control. What the NLRB regional board ruled was that Northwestern’s players do football stuff for Northwestern, as directed by Northwestern* (in the form of the coaches), and in return are compensated with a scholarship and things. In short, Northwestern’s football players are employees of the University.

MIchigan Union
Kind of.

*other than the defensive secondary, which the NLRB noted “did not seem to understand what a ‘deep half’ was supposed to look like, and displayed an utter disregard for the coaches’ directions to, quote, ‘just look for the other color jersey and guard someone, anyone, goddammit.’”

But the players aren’t paid. They just got to go to school for free and eat some free food and stuff. How are they any different than a normal scholarship student who does biology things the way the biology department says?

That was the University’s main argument. They claimed that the players were more like Graduate Assistants, who aren’t considered employees under a previous NLRB decision (Brown University, 342 NLRB 483 (2004)). The court said that the difference was that GAs aren’t employees because their relationship to their various universities is primarily educational. In other words, your PoliSci GA is simultaneously teaching and studying PoliSci, so they don’t count him as an employee for the teaching part.

The ‘work’done by  football players, on the other hand, is completely unrelated to the educational mission of the school and to the athletes’ studies. The university doesn’t get any educational advancement from what football players do (though Northwestern seriously tried to make the argument that playing sports enriches the student experience, and sports are therefore educational, which is exactly as bad of an argument as it sounds).

Instead the school receives gigantic piles of money from what football players do. The school’s interest is economic, not educational. Moreover, they said that the players are not “primarily students,” as they spend up to 50-60 hours per week** on football duties.


Cool to see so many people excited about education

**Real hours. No one other than the NCAA gives a flying crap about the hilarious differentiation between “countable hours” and “non-countable hours.” Mike Rosenberg still sucks.

[AFTER THE JUMP: More union talk. Plus a Sad Pat Fitzgerald GIF]