Lack­ing fore­sight, NCAA once again play­ing de­fense

The Morning Call - - SPORTS - By Ralph D. Russo

The NCAA is on its heels again, play­ing de­fense of its ar­chaic am­a­teurism rules af­ter miss­ing an op­por­tu­nity to get out in front of an is­sue.

Five years ago, a fed­eral judge ruled against the NCAA in an an­titrust law­suit brought by for­mer UCLA bas­ket­ball star Ed O’Bannon, who claimed the as­so­ci­a­tion and its mem­ber schools and con­fer­ences had been in­ap­pro­pri­ately prof­it­ing from ath­letes’ names, im­ages and like­nesses with­out com­pen­sat­ing them.

The NCAA took an L, but it was far from a death knell for col­lege sports. In fact, the NCAA ral­lied. An ap­pel­late court over­turned Judge Clau­dia Wilken’s rul­ing that schools should be per­mit­ted — though not re­quired — to pay ath­letes up to $5,000 per year for the right to com­mer­cial­ize their names, im­ages and like­nesses.

Turns out that was a pyrrhic vic­tory. The de­ci­sions from O’Bannon did not pro­tect the NCAA from fur­ther at­tacks on its rules against ath­letes be­ing paid for be­ing ath­letes.

“There was never a pro­hi­bi­tion on that,” Michael Haus­feld, who was the lead at­tor­ney for the plain­tiffs in the O’Bannon case, told The As­so­ci­ated Press. ”There was just si­lence. [The court] just said the schools can’t pay. That’s ex­tremely im­por­tant. But the en­dorsers can.”

Last week, Cal­i­for­nia’s gov­er­nor signed into law a bill that pre­vents col­leges and univer­si­ties in the state from pro­hibit­ing its ath­letes from mak­ing money from things like en­dorse­ments or au­to­graph sign­ings. Politi­cians in other states, who have taken note of grow­ing pub­lic sup­port for col­lege ath­letes be­ing able to cash in on the bil­lion-dol­lar busi­ness their work and tal­ent makes pos­si­ble, were quick to jump on board.

In th­ese di­vided times, politi­cians are reach­ing across the aisle to take down the NCAA.

By the end of the week, law­mak­ers in at least 10 more states had said they would fol­low Cal­i­for­nia’s lead — some more ag­gres­sively than oth­ers. Cal­i­for­nia’s law is set to take ef­fect in 2023. A bill filed in Florida on Fri­day would go into ef­fect next year if passed.

The NCAA ear­lier this year formed a work­ing group, led by Ohio State ath­letic direc­tor Gene Smith and Big East Com­mis­sioner Val Ack­er­man, to come up with a way that ath­letes could be com­pen­sated for their names, im­ages and like­nesses.

“You now see prob­a­bly what in physics would be the most de­layed re­ac­tion to an ac­tion,” Haus­feld said.

Ack­er­man and Smith’s group is sched­uled to present a re­port later this month to the univer­sity pres­i­dents that make up the NCAA’s Board of Gover­nors.

“You al­ways want to be more proac­tive on any of th­ese is­sues,” NCAA Pres­i­dent Mark Em­mert told the In­di­anapo­lis Star last week. “Do I wish it had been started 10 years ago? Sure, but the fact is we were not in a place where we could do it.”

It is im­por­tant to point out the NCAA is the schools. The rules are made and passed by school ad­min­is­tra­tors and univer­sity pres­i­dents. Em­mert does not have power to en­act pol­icy and there is not a ca­bal of bu­reau­crats in In­di­anapo­lis pulling the strings. The one time Em­mert did try to get out in front of some­thing was in 2011, when he pushed for a $2,000 a year cost-of-at­ten­dance stipend for ath­letes. Mem­ber­ship re­belled. Wilken later ruled the NCAA could not pro­hibit cost-ofat­ten­dance stipends, and now most schools are pay­ing more than they would have un­der Em­mert’s plan.

Em­mert and oth­ers will point to other court cases work­ing through the le­gal sys­tem as the rea­son why name, im­age and like­ness could not be tack­led sooner.

But for­ward-think­ing lead­er­ship in col­lege sports is lack­ing, and it wor­ries many ath­letic di­rec­tors who don’t see al­low­ing ath­letes ac­cess to a free mar­ket as an un­man­age­able prob­lem. The prospect of a wide re­ceiver, point guard or mid­fielder be­com­ing a so­cial me­dia in­flu­encer, start­ing a side busi­ness giv­ing lessons in their sports or mak­ing $25 a pop for leav­ing fans per­son­al­ized voice mes­sages is not keep­ing ad­min­is­tra­tors up at night.

There will be chal­lenges. Es­pe­cially, as it re­lates to re­cruit­ing in the most high-pro­file sports. But ath­letic pro­grams are al­ready fac­ing those chal­lenges and it’s pos­si­ble a reg­u­lated free mar­ket could eat into a black mar­ket of pay­ments to play­ers that is near im­pos­si­ble for NCAA en­force­ment to dis­rupt.

Get­ting an ad­min­is­tra­tor to say any of this pub­licly th­ese days is dif­fi­cult. No one wants to be seen as putting forth a con­tra­dic­tory mes­sage, es­pe­cially when the NCAA could find it­self back in court try­ing to fend off nu­mer­ous state laws.

“You have an en­tity that has been found guilty of vi­o­lat­ing the an­titrust laws, re­strain­ing in­ter­state com­pe­ti­tion, then seek­ing to as­sert that the states are in­ter­fer­ing with in­ter­state com­pe­ti­tion that is al­ready be­ing re­strained by the NCAA,” Haus­feld said. “I don’t think they un­der­stand that that ar­gu­ment is com­ing back at them.”

The NCAA has spent nearly $150 mil­lion in le­gal fees over the last three years. The prospect of drop­ping an­other $50 mil­lion — give or take — on lawyers to solve a prob­lem that has been loom­ing for years seems like an­other ex­am­ple of the NCAA pay­ing full price for day-old bagels.

The chances Smith and Ack­er­man de­liver a so­lu­tion that will sat­isfy law­mak­ers seem un­likely. More likely the group pulls some­thing from the re­cy­cle bin.

In­stead of al­low­ing ath­letes to ac­cess a free mar­ket and earn some­one else’s money, what ad­min­is­tra­tors in col­lege sports ex­pect is a plan to give ath­letes money re­lated to li­cens­ing agree­ments on things like ap­parel. The schools could es­sen­tially buy the name, im­age and like­ness rights from ath­letes, build it into the cost of a schol­ar­ship and cover any Ti­tle IX eq­uity is­sues by giv­ing ev­ery­one the same cut.

It is hard to find fis­cal sense in that. In­stead of per­mit­ting the quar­ter­back to make a five-fig­ure deal with the lo­cal mu­sic hall to pro­mote con­certs on his In­sta­gram, a school would be dol­ing out thou­sands of dol­lars a year to ath­letes who would oth­er­wise be lucky to earn more than beer money on their own.

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