SBD/August 11, 2014/CollegesPrint All
NCAA President Mark Emmert yesterday said the organization "will appeal" U.S. District Court judge Claudia Wilken's ruling in the Ed O'Bannon case that the NCAA cannot stop players from selling the rights to their names, images and likenesses. Emmert said, "Yes, at least in part we will. No one from our legal team or the college conferences' legal teams think this is a violation of antitrust laws and we need to get that settled in the courts" ("This Week with George Stephanopoulos," ABC, 8/10). NCAA Exec VP & General Counsel Donald Remy in a statement said, "We remain confident that the NCAA has not violated antitrust laws. We will also be seeking clarity from the district court on some details of the ruling" (LATIMES.com, 8/10). In N.Y., Marc Tracy notes the clarity the NCAA seeks "most likely concerns the substance of Wilken’s injunction." That ruling "bars the NCAA from prohibiting any university from compensating athletes with at least grants-in-aid, or through trust funds the athletes would gain access to after their playing careers, in which payment could be capped by the NCAA at levels as low as $5,000 a year per athlete" (N.Y. TIMES, 8/11). Sources said that the NCAA, its member schools and conferences are "weighing whether to request from Congress exemption from antitrust laws" if Wilken's ruling ultimately holds. Emmert said recently that he "believes there may be enough political backing to support such a request" (WALL STREET JOURNAL, 8/11).
EXPANDING THE IMPACT: USA TODAY's Steve Berkowitz reported Michael Hausfeld, the plaintiffs' lead attorney, is "already looking at ways to expand the ruling's impact." Hausfeld's team is "examining other legal claims they could make, including challenges on behalf of athletes in sports other than football and men's basketball and on behalf of individual athletes." Hausfeld also is "considering increased involvement in the case now before the National Labor Relations Board" concerning Northwestern Univ. football players' efforts to unionize. Indiana Univ. Law School dean emeritus Gary Roberts said Wilken's ruling "will not be the definitive statement of the case," as the 9th Circuit Court of Appeals "will hear the case" (USATODAY.com, 8/9).
LOOKING FOR CLARITY: In N.Y., Strauss, Eder & Tracy noted Wilken in her 99-page ruling gave NCAA officials "hope that any required changes might not be the death knell that seemed imminent." She said that the limit on payments to athletes "could be as little as $5,000 a year." By Saturday, university leaders and conference commissioners were "trying to sort through the ramifications of the ruling," and so far, the NCAA "has not had a lot of answers for its members, as the organization seeks further clarification." Most schools and conferences are "particularly interested in understanding how" suggested trust funds might work. Former Univ. of Georgia President Michael Adams said, "You'll hear more calls for an antitrust exemption. I think you'll see Congress take another hard look at all of this" (N.Y. TIMES, 8/10). The TIMES' Strauss & Tracy in a front-page piece noted the ruling "does not mandate that players be paid," but it "could allow universities to engage in bidding wars for the best athletes." However, the NCAA would "probably try to prevent that by capping payments, which Judge Wilken said was permissible." Wilken added that she "fully expected the universities to shoulder the additional costs." Wilken wrote, “The high coaches’ salaries and rapidly increasing spending on training facilities at many schools suggest that these schools would, in fact, be able to afford to offer their student-athletes a limited share of the licensing revenue generated from their use of the student-athletes’ own names, images, and likenesses." Strauss & Tracy reported Wilken's ruling "allows universities to provide athletes trust funds, as well as annual payments that reflect the full cost of attending school." Advocates for student-athletes "declared it a major victory" (N.Y. TIMES, 8/9).
WHAT IT MEANS: The WALL STREET JOURNAL's Terlep & Cohen noted Wilken "stopped well short of giving schools free rein to cut big paychecks" to athletes. But the decision "opens the door for college players at the nation's athletic powerhouses to earn a cut of the hundreds in millions they generate for the first time in the 108-year history of the NCAA." The ruling creates a new expense that "many powerhouses can still afford." The injunction would "go into effect July 1, 2016." Plaintiffs' attorney Bill Isaacson said, "This is a significant step forward. She struck down the restrictions and is allowing the schools to do reasonable and decent things." Meanwhile, Tulane law professor Gabe Feldman said that the ruling "doesn't represent the worst-case scenario for the NCAA ... but it marks a departure from the legal system's historical deference" to the organization (WSJ.com, 8/8). In Pittsburgh, J. Brady McCollough wrote the ruling is a "death blow to the ideal of amateurism in college sports and has the potential to alter the athletic landscape on college campuses across the country" (PITTSBURGH POST-GAZETTE, 8/9). SI.com's Michael McCann wrote the ruling is a "significant, but carefully limited, legal victory for advocates of student-athletes." Wilken's "injunction of NCAA rules and policies seemed almost tepid." For instance, Wilken’s injunction "permits the NCAA to cap compensation to student-athletes at the cost of attendance." Wilken "similarly offered a restrained remedy in regards to NIL rights." She also "ruled that the NCAA can continue to prohibit student-athletes from endorsing products." Wilken provided a "de facto victory for television networks, media companies and video game publishers that profit from college sports." She reasoned these companies are "not obligated to negotiate group licenses with student-athletes." The NCAA’s "last step would be to petition the U.S. Supreme Court for review." However, the Supreme Court is "unlikely to hear the case, as it only grants cert to about one percent of petitions." If the appeals process fails, the NCAA would be "forced to fully comply with Wilken’s order." But the appeals process is "not the NCAA’s only legal recourse." The NCAA also could "petition Congress and President Obama to pass a law that would effectively reverse Wilken’s order." The odds seem "decidedly stacked against legislative intervention," and Wilken seemed "frustrated that she could not do more for O'Bannon under antitrust law" (SI.com, 8/9).
NCAA'S NEXT MOVE: In DC, Rick Maese wrote the NCAA's "course of action is unknown." Hausfeld said, "They're some of the most close-minded individuals I've ever comes across in almost 50 years of practice" (WASHINGTON POST, 8/10). ESPN.com's Lester Munson wrote the ruling could "haunt the NCAA in other litigation." Lawyers for other players "challenging other NCAA rules will argue that Wilken's rulings apply to all situations." Meanwhile, it is a "triumph" for student-athletes, but it is "far from the triumph the players and their lawyers envisioned when they began this quest five years ago." The "real victory" for the athletes will come in the scholarship case filed by prominent sports attorney Jeffrey Kessler when the Kessler team "asks for a court order that eliminates all restrictions on pay for performance." The "turning point of the trial was the testimony of Roger Noll, a retired Stanford economist who testified for the athletes and explained college sports to Judge Wilken." Munson: "Again and again in her 99-page opinion, Wilken relied on Noll's studies and expertise to support her decision" (ESPN.com, 8/9).
SUPREME RAMIFICATIONS: O'Bannon on Saturday said, "You want to go to the Supreme Court, let's go. I've got my ticket already." The AP's Tim Dahlberg wrote the ruling "did leave college administrators pondering its potential ramifications and how they might go about implementing such a compensation system." SMU AD Rick Hart: "It goes on the list of items that will need to be part of our budget projections. As we prioritize how we allocate resources we'll try to get a better feel of what this will represent." There are "plenty of questions to answer such as: Who will handle the trust fund? Could this money be taxable because it exceeds federal financial aid limits? Will paying one group of male athletes put schools in danger of violating federal gender equity laws covered by Title IX?" Hart: "There's not a lot of clarity" (AP, 8/9). Big 12 Commissioner Bob Bowlsby said it was a "very measured response from the court" that leaves the "collegiate model intact." But he said, "We still have a lot of questions. ... What impact will it have on Olympic sports? What are the implications for Title IX? There are many unanswered questions as we sit here three days after the verdict. But I think in large measure, this is good for student athletes" ("Mike & Mike," ESPN Radio, 8/11). O'Bannon said, "This is just the tip of the iceberg. I think that a lot of change is going to happen. This is just the beginning." O'Bannon said that allowing players to "receive compensation ... relieves pressure to leave after one year of college in the case of basketball stars, and three years in the case of football." O'Bannon: "I don't think that players will be in a hurry to leave (anymore) and test their professional status. Hopefully, they will stay in school a little bit longer" (ESPN.com, 8/9).
DAZED & CONFUSED: In San Jose, Mark Purdy wrote the ruling for now is "mostly a confusion bomb." Purdy: "This was a revolution! No, it was a disaster! No, it was a major or minor thrust in either the right or wrong direction!" (SAN JOSE MERCURY NEWS, 8/10). But SI.com's Andy Staples wrote Wilken despite "thrashing the NCAA for its pitiful defense of what it purports to be its guiding principles ... threw the embattled association a lifeline." It is a "thin one," but it "gives the NCAA a fighting chance." Wilken did "not fundamentally change the business model for major college sports -- even though she could have." This is a "defeat for the NCAA and the schools, but it could have been much, much worse." She "didn’t ban the NCAA from creating any rules that ban athletes from selling their name, image and likeness rights individually." However, she "did seem to put serious stock into statements by NCAA witnesses such as television consultant Neal Pilson and Stanford athletic director Bernard Muir that paying athletes a smaller amount wouldn’t change fans’ feelings as much as paying athletes a large amount would." At one point, Wilken also "mystifyingly seemed to agree with the NCAA that it must 'protect' athletes against 'commercial exploitation.'” The NCAA "lost the O’Bannon case, but its way of doing business survived" (SI.com, 8/9).
AMATEUR HOUR: SI.com's Zac Ellis wrote Wilken's ruling is "obviously a major hit to the NCAA's current model of amateurism." The ruling "shifts a bedrock principle of the NCAA's amateurism model: Student-athletes can now receive a form of compensation without being deemed ineligible." The O'Bannon ruling is "just the tip of the iceberg" (SI.com, 8/9). In N.Y., William Rhoden wrote the decision will "prove revolutionary for college sports." The "highly commercialized intercollegiate sports system that masquerades as an educational enterprise has been ordered to begin sharing its profits." Friday’s decision "may be equitable, but it will only escalate the so-called arms race in intercollegiate athletics." The "only flaw in the decision was when athletes would receive the money: when they leave college." Rhoden: "I would much rather have it designate 'when they graduate'” (N.Y. TIMES, 8/10). CBSSPORTS.com's Jon Solomon wrote Wilken's ruling "reflected caution and, perhaps, an incremental step for what the future may bring." No one has "debated the legality of the cap," and Wilken "seemed hesitant to do too much too soon" (CBSSPORTS.com, 8/9). Northeastern Univ. law professor Roger Abrams: "We can guess that, if things continue along this path, the NCAA will have the same influence as the AAU does now. Which is nothing" (NEWSDAY, 8/10). ESPN.com's Dana O'Neil wrote, "Athletes 1, NCAA 0" (ESPN.com, 8/9).
HIGHER ED-UCATION: O'Bannon said, “I want to be clear on a few things. I didn’t set out to be the bad guy, and we didn’t bankrupt college athletics. That was a big deal. That was a mainstay for us. Saturdays are still going to be special. Our tournaments in March will still have madness.” He added, "This has been a long five-plus years. Looking back on this lawsuit, there have been a lot twists, a lot turns, a lot of peaks, a lot of valleys, a lot of ups and downs. Through it all, I never wanted to be the bad guy. I wanted to help the best way I could the college athlete" (LAS VEGAS SUN, 8/10). More O'Bannon: "My biggest thing was to spark change, to spark conversation. ... I have said before that I went to class, I was there to play basketball and that sort of thing, and I did the bare minimum. I think the NCAA did the bare minimum. I think that a lot of ... college athletes are getting by on the bare minimum. I think there are billions of dollars being made and these rules that are in place have been in place for like 100 years and haven't been changed when it comes to respect to the money. Times have changed, the timing has changed, the game has change, and I think these rules need to change" ("Mike & Mike," ESPN Radio, 8/11).
The NCAA D-I BOD last week voted to grant the Power Five conferences autonomy, but during deliberations, the supporters of the proposal "had to push back against a constituency that wanted to see more revenue sharing among schools, particularly the proceeds from football, the most lucrative sport," according to Steve Eder of the N.Y. TIMES. Rice President David Leebron, who voted for the proposal and was on the steering committee of eight presidents that conceived it, said that "sharing the wealth was a nonstarter." Leebron: “That’s not an issue the committee addressed or considered. It wasn’t in its mandate.” Eder reported a "major sticking point was how votes would be counted in a separate, newly established and powerful council that would promulgate policies for all of Division I, not just the Big 5." The council’s composition would "give significant additional weight to representatives of the Big 5." Delaware President Patrick Harker said, “We lost some influence in the council." He added that the council makeup "swayed his vote." Dartmouth President Phil Hanlon: "I voted no because I believe the proposed governance changes move in the direction of even greater spending and revenue growth in intercollegiate athletics and even greater disparity between the conferences" (N.Y. TIMES, 8/9). Arizona State VP/Athletics Ray Anderson said, "We're going to have to go out and essentially get revenue sources to support it. That's part of our challenge." Arizona AD Greg Byrne also said that the reforms could "result in future changes that could affect the athletic department's bottom line." In Phoenix, Ryman & Metcalfe noted UA has 20 sports, of which "two turn a profit: men's basketball and football." Byrne: "The money is going to have to come from somewhere. I hope we're able to make good, solid decisions that will still allow us to have all the opportunities we currently have" (ARIZONA REPUBLIC, 8/9).
WHAT IT MEANS: Ball State AD Bill Scholl said he thought it was "fine" for the Power Five conferences to have "some autonomy." He said, "What’s going to happen is some legislation is going to get passed, and then Ball State and the MAC and the other four conferences in our group are going to need to make decisions as to how we’re going to respond. In some cases, that certainly could cost, if we decide we want to follow suit, it certainly could cost some more money" (Muncie STAR PRESS, 8/9). Southern Miss AD Bill McGillis said, "With this change, there's no question that the higher resource conferences will have a greater voice, but whatever proposals, whatever legislation is adopted going forward, is for all of us and not just those five conferences. That's been lost in some of the coverage.” Asked what the vote means for his school and Conference USA, McGillis said, "I don't think it's going to result, in the short term, in a dramatic change in how we do business or on the competitive landscape" (Biloxi SUN HERALD, 8/9). UMass AD John McCutcheon said that he "expects the department to be able to handle the potential added cost." In Massachusetts, Matt Vautour noted McCutcheon estimated that increasing the value of basketball scholarships for both genders would "cost a combined $30,000." It would be $75,000 "for football scholarships and another $75,000 for other student athletes receiving full rides." McCutcheon: "It’s not an overwhelming addition to our overall scholarship budget. We feel we can deal with it if that situation may arise" (DAILY HAMPSHIRE GAZETTE, 8/8). In Newark, Steve Politi noted Princeton AD Gary Walters "blasted the power conferences for 'disguising self-interest with self-serving propaganda' and for being 'more answerable to the TV networks than the NCAA.'" Meanwhile, at Rutgers, Olympic sports "are in jeopardy … again" (NJ.com, 8/9).
MAKING WHOLESALE CHANGES? In N.Y., Joe Nocera wrote under the header, "This Is Reform?" with the subhead "The NCAA's Feeble Reform Impulse." The new D-I plan will "give the players some help that they haven’t had before," but these changes "hardly constitute wholesale reform." The "also-ran schools may be forced to rethink athletics entirely" (N.Y. TIMES, 8/9).
Colorado State Univ. AD Jack Graham, the "man behind the plan to build an on-campus stadium at CSU," was fired Friday, according to Kelly Lyell of the Ft. Collins COLORADOAN. CSU President Tony Frank in a statement said, "While I am grateful to Jack for the energy he's brought to CSU in establishing a culture that expects excellence within Ram athletics and his actions in hiring great coaches and staff, there have come to exist some substantial differences in our views." CSU Exec Dir/Public Affairs & Communications Mike Hooker said that Graham will "continue to receive his salary and benefits for 90 days under terms of the 'termination for convenience clause' in his contract." He will "continue to receive his annual salary of $260,000 in monthly payments, minus any money he might earn through subsequent employment, through the end of his contract," which goes through November '16. Hooker said that those payments will "come from private funds" (Ft. Collins COLORADOAN, 8/9). The AP noted Graham was leading the campaign to raise $110M by October to "get the go-ahead" for the proposed $220M on-campus stadium project. Frank plans to report to CSU's BOG in October "about the project and will discuss the impact of the leadership change as part of that presentation" (AP, 8/8).
BLOW TO STADIUM PROJECT? The COLORADOAN's Lyell noted Graham's firing could "be a blow" to the stadium project. Graham is the one who "first pitched the idea" to Frank in '11 and received approval based on the understanding that at least $125M -- half of the estimated construction costs at the time -- "had to be raised through private donations before ground could be broken." Frank insisted that the firing was "unrelated to the stadium project" (Ft. Collins COLORADOAN, 8/10). Frank said that it had "become clear" that he and Graham "had irreconcilable differences of opinion about the direction of the department" (DENVER POST, 8/9). In Colorado, Miles Blumhardt wrote Graham's firing "sent shock waves" through the stadium project. Blumhardt wrote of Frank, "Fort Collins is an affluent community. Just say it like it is. You finally figured out that CSU completely botched selling the community on the project, and anti-stadium proponents effectively derailed the project. ... Making music with Graham wasn't working, and you decided to save your reputation and let Jack go because Jack wasn't giving up his dream" (Ft. Collins COLORADOAN, 8/10).
The Univ. of Maryland and the ACC on Friday "finally agreed on the terms of their messy divorce" -- the school will pay $31M of a $52M exit fee the conference sought, according to Jeff Barker of the Baltimore SUN. The settlement figure is the "amount the ACC already has collected by withholding shared conference revenues -- without Maryland's consent -- to make sure it got at least a portion of what it demanded." After "nearly 21 months of litigation" in Maryland and N.C. courts, each side "can walk away." The $31,361,788 settlement and the $52,266,342 exit fee are "both steep, relative to other separations in recent years." Experts on Friday said that the settlement was "expected and preferable -- for both parties -- to continued, expensive legal wrangling and a possible trial" (Baltimore SUN, 8/9). ESPN.com's Andrea Adelson wrote this is a "win for both sides." UM ended up "paying less" than $52M to exit, but it also "just paid the largest buyout fee in recent realignment history" (ESPN.com, 8/8). In DC, Roman Stubbs noted the ACC's suit "sparked a contentious two-year legal battle between the league" and UM (WASHINGTONPOST.com, 8/8). In Raleigh, Andrew Carter noted the "end of the legal fight between the ACC and Maryland allows both parties fresh starts after the end of a partnership that spanned six decades" (Raleigh NEWS & OBSERVER, 8/9).
SCHOOLEXIT FEECONFERENCE Maryland$31.4MACC to Big Ten West Virginia$20MBig East to Big 12 Texas A&M$12.41MBig 12 to SEC Missouri$12.41MBig 12 to SEC Rutgers$11.5MBig East to Big Ten Louisville$11MBig East/American to ACC Nebraska$9.5MBig 12 to Big Ten Syracuse$7.5MBig East to ACC Pittsburgh$7.5MBig East to ACC Colorado$6.86MBig 12 to Pac-12