Tuesday, October 4, 2016
Was there a net gain from the O'Bannon Case?
By Joe Nocera, Oct. 3, 2016,
The chances that the United States Supreme Court would ever agree to hear the O’Bannon case were always low. O’Bannon — named for the lead plaintiff, the former U.C.L.A. basketball star Ed O’Bannon — was the lawsuit brought in 2009 and tried in 2014 that offered the first serious legal challenge to the N.C.A.A.’s amateurism rules. The year after it was tried, the United States Court of Appeals for the Ninth Circuit made a ruling that left neither side happy.
On one hand, the appeals court panel agreed with Judge Claudia Wilken of the Federal District Court that “the N.C.A.A.’s compensation rules were an unlawful restraint of trade.” Yet, paradoxically, two of the three judges also concluded that preserving amateurism was an important goal and that any compensation athletes might receive had to be related to education. In effect, the court upheld the very compensation rules that it earlier described as a restraint of trade — just a slightly tweaked version. Both sides eventually appealed to the Supreme Court.
But the Supreme Court agrees to hear only around 1 percent of petitioned cases. Add in the facts that O’Bannon presented issues the Supreme Court had never before considered, that the court is short a justice because of the death of Justice Antonin Scalia, and that there are several other big N.C.A.A. cases coming up the legal pipeline — and, well, it was hardly a surprise that the Supreme Court turned down the case on Monday morning.
Nor was it a surprise that both sides were quick to claim victory. The N.C.A.A.’s general counsel, Donald Remy, said in a statement, “We remain pleased that the Ninth Circuit agrees with us that amateurism is an essential component of college sports and that N.C.A.A. members should not be forced by the courts to provide benefits untethered to education.” The lead lawyer for O’Bannon, Michael Hausfeld, noted in his statement that the court’s finding that the N.C.A.A.’s rules violated antitrust laws remained in force.
Now that the case is finally over, though, two questions still hang in the air. The first is: After six years of legal machinations and millions of dollars spent in legal fees, what did the O’Bannon case really accomplish? At first glance, it might not seem like all that much. But I would argue that O’Bannon has had an enormous effect; indeed, the legal rulings are the least of it.
As the first case involving athletes fighting the N.C.A.A. to gain any traction in court, O’Bannon reaped an enormous amount of publicity. (It didn’t hurt that the lead plaintiff was a high-profile former N.C.A.A. champion who was eloquent and highly credible.) Reporters and others began to take a closer look at the N.C.A.A.’s rules and discovered what a small group of critics had been saying for years: Many of the rules were unfair, trivial and, in some cases, idiotic.
This increased scrutiny put the college sports establishment on the defensive. And it began to make changes, at least on the margins, to improve the lot of college athletes. Some schools began offering four-year scholarships, instead of one-year scholarships that could be renewed annually (or not) at coaches’ discretion. There was increased focus on health concerns and the amount of time athletes had to spend on their sport.
Even before the courts ruled in favor of increasing benefits to cover the “full cost of attendance,” the five major conferences had begun moving in that direction. When Kevin Ware, the Louisville basketball player, suffered a gruesome leg injury during an N.C.A.A. tournament game in 2013, a number of sports columns were published asking whether the school would take care of Ware even if he couldn’t play again. It is unlikely that such questions would have been asked a decade ago.
The next year, at the Final Four, Shabazz Napier, a star guard for Connecticut, complained that he often went to bed hungry because of N.C.A.A. rules. The rules were almost immediately rescinded. Would Napier have been willing to raise that complaint before O’Bannon? Maybe — but more likely not. Would Kain Colter, the Northwestern quarterback, have tried to unionize the Northwestern football team a few years ago without O’Bannon? That seems unlikely, too.
Thanks to O’Bannon, the college sports establishment was forced to make life a little better for athletes. But it also raised the consciousness of many athletes, causing them to realize that the deal they had struck with the universities they played for was pretty one-sided.
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Finally, the fact that the N.C.A.A. has been labeled an antitrust violator, thanks to O’Bannon, is no small thing. That leads to the second question: What comes now?
The answer is that two more cases, which are both being heard by Judge Wilken, are also aimed at overturning the N.C.A.A.’s amateurism rules. One is known as the Jenkins case; it argues that the N.C.A.A.’s compensation limits have no justification under antitrust law. The other is the Alston case, which seeks damages for all the years in which athletes weren’t compensated for the full cost of attendance, even though they were entitled to it, according to the O’Bannon ruling.
The fact that the N.C.A.A. has been branded an antitrust violator is hugely advantageous to the plaintiffs. The N.C.A.A. knows it, too, which is why it wanted the Supreme Court to take the O’Bannon case: in the hope that the court would overturn that antitrust label.
“I’ve always thought the O’Bannon result was more advantageous to us than it was to them,” Jeffrey Kessler, the lead lawyer in the Jenkins case, said on Monday. “Ultimately, unless the N.C.A.A. gets an antitrust exemption, competition is going to win out.”
In August, Judge Wilken declined the N.C.A.A.’s motion to dismiss the cases. Although she is constrained by the Ninth Circuit’s ruling on compensation, she has also sounded sympathetic to the idea that athletes should receive more benefits than they do now. If she rules for the plaintiffs, it is likely that she will search for remedies that put more in players’ pockets.
O’Bannon may be over, but the legal fight it began — over amateurism and player compensation — remains a long way from being finished.