The class-action case, entitled “National Collegiate Athletic Association Grant-In-Aid Cap Antitrust Litigation,” went to trial late last year with little fanfare or media coverage, in part because of the likelihood the judge’s decision will go on hold pending an appeal.
But the awaited ruling could be as consequential as the landmark 2014 decision in Ed O’Bannon vs. NCAA — which also was tried in Oakland before U.S. District Court Judge Claudia Wilken — that concluded with a ruling, later partially overturned, that the NCAA had violated antitrust law.
The O’Bannon case, brought by the former UCLA basketball star, was more narrowly focused on the use of the names and images of players on TV and in video games, but struck at the same core issue of this case: whether college athletes deserve a larger portion of the billions generated by their sports.
In this case, the plaintiffs — more than 40,000 current and former college athletes — seek a ruling that would abolish NCAA rules capping compensation for athletes at the value of a college education, clearing the way for conferences to set their own rules.
A victory for athletes could create a world in which, for example, Southeastern Conference schools could decide to offer top recruits signing bonuses of $100,000 or more, and Pac-12 schools could decide to offer $25,000 bonuses per year of school completed, incentivizing athletes staying in school longer. Conferences less interested in offering cash instead could create other recruiting perks, such as lifetime health insurance or free graduate education. Less wealthy conferences, outside the so-called “Power Five” that controls college football, could continue offering full scholarships and nothing more.
In a statement, Donald Remy, the NCAA’s chief legal officer, denounced the athletes’ demands, and asserted they would sap money from sports subsidized by football and basketball.
“All of the Clemson and Alabama student-athletes taking the field in the College Football Playoff championship game are just that: students. However, the plaintiffs would rather see a world in which paid professionals would instead take the field,” said Remy, who earned $933,000 in 2017, the most recent year the NCAA’s nonprofit IRS filing is available.
“Replacing scholarships with salaries would professionalize college sports, de-emphasize academics and reduce future opportunities for incoming student-athletes,” Remy said.
Steve Berman, lead attorney for the athletes, said in a phone interview he and his clients aren’t seeking to force schools to pay athletes if they don’t want to, but are confident that competition between conferences, absent NCAA amateurism rules, would create a more equitable distribution of the billions generated by major college sports.
“I can’t think of any other business where there’s such a transfer of wealth where there is in this case; where the student-athletes are basically powerless, and everyone else in the system is benefitting,” Berman said.
At the bench trial late last year, lawyers for the NCAA and the conferences essentially made two major arguments: (1) Droves of fans would stop watching college football and basketball if they knew the players were getting paid, and (2) Allowing pay would “drive a wedge” between college athletes and their classmates, hurting “integration,” an essential goal of college sports.
The NCAA presented survey results that showed majorities of college sports fans opposed more pay or perks for athletes, while more than 30 percent said amateurism was a significant reason they watched.
Lawyers for athletes, meantime, highlighted the fact the NCAA’s survey expert acknowledged his results didn’t necessarily mean those same fans would stop watching. Surveys also have found majorities of baseball fans opposed to the salaries for MLB players, an economist for the athletes noted, but there’s been no correlation between rising pay for MLB players and decreased ticket sales or television ratings.
To counter the integration argument, the lawyers for the athletes put their clients on the stand, where they testified the feared “wedge” between them and their classmates already exists, created by demanding practice schedules, frequent travel, and high-end workout facilities and dormitories built exclusively for athletes.
Former West Virginia running back Shawne Alston testified he was told by academic advisors to take only easy classes that met in the mornings, so he’d maintain eligibility and not miss practice, and he spent his little down time with other athletes.
“We never built relationships with other people,” Alston testified.
Judge Wilken’s ruling is expected in the next 60 days. She could side with the NCAA and uphold the status quo, create an open market between conferences, or opt for a middle ground alternative. An appeal would send the case to the U.S. Court of Appeal for the Ninth Circuit, where experts expect a year or two would pass before a final ruling, which then could be appealed to the Supreme Court.
In the summer of 2014, Wilken found in favor of O’Bannon, and ruled that colleges could offer trust funds to athletes (they could be capped at $5,000 per player per year) that could be tapped after they left school. That decision came amid a series of legal challenges and rulings that seemed to point toward growing momentum for professionalizing major college sports in America. A few months before Wilken’s ruling, a regional official with the National Labor Relations Board gave Northwestern football players permission to form a union.
The union effort was thwarted on appeal, while Wilken’s trust funds were thrown out by a panel of Ninth Circuit appeals judges. But the cases likely prompted pre-emptive moves by college sports powers to improve conditions for athletes. In rapid fashion, the so-called “Power Five” conferences approved unlimited meals, “cost-of-attendance” stipends of several thousand dollars, guaranteed four-year scholarships, and expanded health insurance.
Last March, meanwhile, provided what could be considered a real-world experiment on how college sports fans’ behavior might change when they learn players are getting paid for their talents.
As an ongoing Justice Department investigation roiled college basketball with revelations that Adidas officials arranged bribes to players and families to get them to attend preferred schools, CBS reported ratings for the first full weekend of the men’s tournament: They were up by 11 percent.