Some thoughts as the O’Bannon vs. the NCAA case opens

As the Ed O’Bannon case against the NCAA opens in California, it appears the outcome is more a game-changer than a foundation-shaker. That’s probably a good thing for all involved.

While there was a period of time when the potential for huge damages hung over the heads of the NCAA and its partners, the goal of the plaintiffs has shifted to determining if players have been getting cheated out of profits garnered from TV broadcasts, video games and more over the years and then figure out how to fix that.

This is the No. 1 issue that the NCAA could have and should have gotten out in front of without truly changing its model to a drastic degree (despite what they say). Yet it also seems like the one it is least interested in addressing aside from actual direct salaries for players. It also happens to be the best possible compromise for both sides, not to mention the many millions who sit on the sidelines either as fans, media, sponsors or entrepreneurs.

I think all of these parties should be considered not from from a legal standpoint but a practical one. That’s because without the latter there is nothing for the two parties in court to argue about.

The NCAA does not seem to see a difference between paying players a salary and allowing them to profit off their image (which for this purpose means appearance, reputation, etc.), and that could be a fatal mistake, perhaps more because of other cases it faces than this one.

While the O’Bannon case has been characterized as many things, it has boiled down to the area where the NCAA could most easily call for a truce and get out with a relatively similar model to the one it has already been maintaining for decades.

There have been those who call O’Bannon bitter for not being able to make it in the NBA and thus needing to hit the NCAA to make up the shortfall he might feel his talents deserved. Those people are missing the point. In fact, they zoomed right by it. O’Bannon, a college star who never did much in the pros, is the perfect example of the relatively small percentage of athletes who do genuinely end up getting a raw deal in this whole college arrangement. His example is also noteworthy because he would not have been such a big deal in college (maintaining name recognition more than a decade later) if he hadn’t played at and delivered a national championship to a school that is so steeped in a tradition of winning.

I maintain the great majority of players end up getting more out of their scholarship (when considering the education, the experience and the various other benefits) than they are really worth to the school, and many of those who outperform the value of the scholarship are still made whole by multimillion-dollar contracts signed at the age of 19-22, contracts (with not only their pro team but also endorsers) that are in many cases more valuable than they would have been without the opportunity to perform on a college platform that has often been developed over many years and affords much greater effect than any available alternative that exists or could reasonably expect to be formed.

It’s been said before, but it’s not the NCAA’s fault the NFL hasn’t created a minor league or that the NBA’s domestic minor league doesn’t pay enough to make it an attractive option for those who don’t want to go to college or even avoid going overseas. It’s also not the NCAA’s fault the public isn’t interested in attending or watching the D-League or it’s NFL alternative, but that’s something that should not go overlooked.

Now, a victory by O’Bannon would change things in some significant ways for college athletics. There is no denying that. But without having to worry about taking a huge financial hit up front, the schools that make up the NCAA would have the opportunity to redraw budgets to account for distributing more of their revenue directly to those teams that generate it, and that time should allow for figuring out ways to move around their money without taking away too many opportunities for athletes in other sports.

In their rush to rail against the current college athletics model, many ignore the fact just about all of the money college teams bring in is spent by the athletics departments on athletics teams and therefore its athletes. However, anyone who has toured a college facility recently knows there are plenty of places they could be just a bit less lavish to save money to spend on the lacrosse and track teams without significantly hurting the experience of the football and basketball players.

Are the players better off with a few more bucks in their pockets than they are having the school spend lavishly on them in the form of facilities, training, food, tutors and publicity? I’m sure that would vary some by case, but I’m not going to make that overall argument either way because it probably won’t affect the outcome.

Of course, NCAA schools can probably open the door for athletes to market themselves without losing much of anything they bring in now. Let the market bear what it will for them while continuing to refine their experience with better food, better training, better health care and enough money to cover the full cost of education (all things that seem to be on the way already). That makes whole those who are notable enough in college to be able to argue they should get significantly more than they already do without taking anything away from the 85th man on the roster. It provides some insurance to players such O’Bannon or maybe even a Michael Sam or a Troy Davis or Colt McCoy or Troy Smith who can dominate in college but might not have the skill set to make it big in the pros. Guys like those can and do profit off their likeness for years to come after college is over, but it stands to reason there is more to be made while the iron is hottest.

This whole debate is really important because I do get the impression from fans on social media, our message board and beyond that their appetite for supporting college sports would be diminished if the players became true employees who were bid on by teams openly like players in the NFL, MLB, etc. This is a debate that has been going on since scholarships first became offered and regulated many decades ago, and truth be told compensation is compensation in my book. If athletes were paid a salary instead of a scholarship, it would not make much difference to me. I do believe they are being compensated for a service, and so in that sense are employees (even though I think the arguments applied in the Northwestern case don’t fit that definition as compared to other examples of college students’ experiences, that’s a legal debate, not a common sense one), but apparently that is not a consensus. And if there is a consensus out there indicating the market for college sports will dry up if the players become true employees, even if the overall experience is basically the same in its essence but looks different from the outside, then the idea of change should not be taken lightly. Whether it is the players or the colleges risking the slaying of the golden goose doesn’t matter. In many cases, practicality overrides morality, and this could be one.

Of course, the possibility exists that even letting players do endorsements could turn off the general public, but that has not happened with Olympic sports. Does the general public care that Olympic athletes are not paid, per se, for competing, or does that even register in their perception of what is going on? Maybe the Olympics, like long-famous colleges, simply trump all from a marketing standpoint thanks to their tradition and the same would be true in college athletics regardless of how the athletes are further paid. I’m not sure it’s worth finding out or necessary, but maybe there won’t be a choice.

One thought on “Some thoughts as the O’Bannon vs. the NCAA case opens

Leave a Reply