O'Bannon Ruling: NCAA Loses

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A federal judge has ruled in favor of the plaintiffs in the Ed O'Bannon v. NCAA antitrust case, knocking down the restrictions against college athletes profiting off their name, image, and likeness.


U.S. District Judge Claudia Wilken's 99-page decision is at the bottom of the page. Here's the money quote:

Consistent with the less restrictive alternatives found, the Court will enjoin the NCAA from enforcing any rules or bylaws that would prohibit its member schools and conferences from offering their FBS football or Division I basketball recruits a limited share of the revenues generated from the use of their names, images, and likenesses in addition to a full grant-in-aid.

This isn't a day of jubilee, though:

The injunction will not preclude the NCAA from implementing rules capping the amount of compensation that may be paid to student-athletes while they are enrolled in school; however, the NCAA will not be permitted to set this cap below the cost of attendance, as the term is defined in its current bylaws

The order nods in the direction of what has become the consensus solution to the athlete-compensation issue: a trust fund, payable to the athletes when they leave school or when their eligibility is up. This idea has the support of a number of NCAA critics, among them Ramogi Huma, founder and president of the National College Players Association, but its embrace—and its cameo in Judge Wilken's decision—is a little distressing to people who abhor the paternalism at the heart of the NCAA model. Here's Wilken:

The injunction will also prohibit the NCAA from enforcing any rules to prevent its member schools and conferences from offering to deposit a limited share of licensing revenue in trust for their FBS football and Division I basketball recruits, payable when they leave school or their eligibility expires. Although the injunction will permit the NCAA to set a cap on the amount of money that may be held in trust, it will prohibit the NCAA from setting a cap of less than five thousand dollars (in 2014 dollars) for every year that the student-athlete remains academically


And at one point, in the manner of many would-be reformers, the judge all but takes the vulnerable young athletes under her wing to shield them from "commercial exploitation," as if that horse wasn't already out of the barn and starting at safety for Alabama.

Plaintiffs' third proposed alternative, however — allowing student-athletes to receive money for endorsements — does not offer a less restrictive way for the NCAA to achieve its purposes.

Allowing student-athletes to endorse commercial products would undermine the efforts of both the NCAA and its member schools to protect against the "commercial exploitation" of student-athletes. Although the trial record contains evidence — and Dr. Emmert himself acknowledged — that the NCAA has not always succeeded in protecting student-athletes from commercial exploitation, this failure does not justify expanding opportunities for commercial exploitation of student-athletes in the future. Plaintiffs themselves previously indicated that they were not seeking to enjoin the NCAA from enforcing its current rules prohibiting such endorsements.


There will be an appeal, and the welcome and long-overdue half a loaf on offer here might get cut up even further. But remember that there are other very big antitrust cases in the pipeline. Let's end on this: a sort of dunk reel in which judge tomahawks all over the face of the NCAA and its principle of amateurism:

The historical record that the NCAA cites as evidence of its longstanding commitment to amateurism is unpersuasive. This record reveals that the NCAA has revised its rules governing student-athlete compensation numerous times over the years, sometimes in significant and contradictory ways. Rather than evincing the association's adherence to a set of core principles, this history documents how malleable the NCAA's definition of amateurism has been since its founding.

The association's current rules demonstrate that, even today, the NCAA does not consistently adhere to a single definition of amateurism. A Division I tennis recruit can preserve his amateur status even if he accepts ten thousand dollars in prize money the year before he enrolls in college. A Division I track and field recruit, however, would forfeit his athletic eligibility if he did the same. Similarly, an FBS football player may maintain his amateur status if he accepts a Pell grant that brings his total financial aid package above the cost of attendance. But the same football player would no longer be an amateur if he were to decline the Pell grant and, instead, receive an equivalent sum of money from his school for the use of his name, image, and likeness during live game telecasts. Such inconsistencies are not indicative of "core principles."


Wilken NCAA Order