"This Final Four Could Turn The NCAA Upside Down"
The NCAA Tournament’s Final Four begins Saturday night in Arlington, Texas, where Kentucky, Wisconsin, Florida, and Connecticut will battle for the 2014 national championship. We broke down the Final Four match-ups Thursday, but while much of the focus will be on basketball, there are other issues facing the NCAA: the organization is facing a litany of major lawsuits that could reshape the landscape of college athletics forever.
There are more than four lawsuits, of course — for instance, the NCAA is facing a wrongful death lawsuit in which it has argued that it has no legal obligation to protect players, a deplorable statement that ignores the very basis of the organization’s founding. But we stuck with four in the spirit of the weekend and chose these because they pose the biggest threat to the NCAA in a variety of areas, from the value of scholarships to players’ ability to share in broadcast revenues to how the NCAA handles concussions to, finally, a case that seeks to totally change the NCAA’s business model. These are the “Final Four” lawsuits facing the most powerful collegiate sporting organization in America, if you will.
Ed O’Bannon’s Challenge on Use of Players’ Names, Images, and Likenesses
The oldest of the four cases here is former UCLA basketball star Ed O’Bannon’s antitrust suit against the NCAA, which argues that college athletes should share in the television broadcast, licensing, and video game revenues created by the use of their names, images, and likenesses (there’s also a similar case brought by former Arizona State quarterback Sam Keller). O’Bannon’s suit, a class action, originally asserted that the NCAA, the Collegiate Licensing Company (which controls licensing of most universities), and EA Sports conspired to fix the value of athletes’ names, images, and likenesses at $0 so that they did not have to give athletes a share of any revenues created. EA Sports and the CLC settled the suit outside of court, but the NCAA remains after multiple efforts to get the case dismissed.
O’Bannon and his co-plaintiffs, which include six current athletes, cleared a big hurdle in November, when federal judge Claudia Wilken partially certified class action status for the case. While she ruled that former athletes could not join the class, she found that current athletes could, meaning a total victory for O’Bannon and the plaintiffs could force the NCAA to spread broadcast and other licensing revenues among players.
The NCAA and its officials have argued that losing the O’Bannon case would cause massive financial damages that it could not sustain. That’s unlikely, but it’s easy to see why it wants to fight: the NCAA Tournament broadcast rights alone will bring the organization and its members more than $10.5 billion from the 14-year contract it signed with Turner and CBS in 2012.
The case is set to go to trial in June, but Wilken pushed the two sides into mediation in March in hopes that they would reach a settlement. The players still face a long legal battle and a tough road to total victory. The NCAA, meanwhile, has promised that it will fight the case all the way to the Supreme Court if it has to.
Shawne Alston’s Fight Against Caps on Scholarship Amounts
Shawne Alston, a former running back at West Virginia University, sued the NCAA and the five biggest football conferences in March, alleging that they had violated antitrust law by capping the amount of aid players can receive through athletic scholarships. Those caps, Alston’s suit says, result in players receiving less in aid than the cost of actual tuition, leaving them with shortfalls that aren’t covered by their scholarships. That’s supported by a recent study showing that the average athletic scholarship fails to cover $3,200 in costs, and Alston asserts in the case that he had to take out a loan to cover his costs.
Alston and his attorneys argue that these caps are a result of collusion, and that absent that improper practice, schools would compete to offer athletes more. Alston’s suit points to the fact that many of the largest schools want to approve a cost-of-living stipend to cover the shortfall as evidence that they would offer more if NCAA rules allowed them to.
“Our case contains a proposal that is designed to provide economic fairness,” lead attorney Steve Berman said when he announced the suit. “Numerous reasonable, less restrictive alternatives are available to Defendants’ current anti-competitive practices, including allowing incremental competition between Power Conference Defendants and against their co-conspirator conferences within FBS as to the financial aid terms that conference members will make available to college football players.”
“The NCAA will likely describe grants-in-aid as promoting, rather than harming, competition,” Sports Illustrated legal analyst Michael McCann wrote when the suit was filed. “Limits on the value of athletic scholarships, the NCAA will assert, ensures that universities with large budgets do not “buy” all of the best football talent. Without these limits, some Division I football programs may collapse, leaving fans with fewer teams to follow and thus harming the overall market for college sports.”
The NCAA, McCann wrote, has been successful with that sort of defense before. The Alston case seeks monetary damages and an injunction that would keep the NCAA from capping scholarships. It is in its infant stages and won’t reach a conclusion in the near future.
Consolidated Concussion Lawsuits
The NCAA is actually facing more than a dozen separate lawsuits related to how it has dealt with concussions, but in January, a panel of federal judges consolidated the cases to the Northern District court of Illinois, where the most advanced and biggest suit was filed. In that suit, which is a class action from former athletes, former Eastern Illinois football player Adrian Arrington and two other athletes allege that the NCAA has for years refused to acknowledge the dangers concussions pose to its athletes.
According to documents from the case, NCAA athletes suffered more than 29,000 concussions between 2004 and 2009, with the majority coming in football. But even though the NCAA has been aware of potential dangers from concussions for more than 80 years, it has failed to enact many policies recommended by physicians or trainers or policies similar to those adopted by other sports leagues and organizations. The NCAA has left concussion management to its member schools instead of instituting across-the-board standards, and though it has recently required schools to adopt “Concussion Management Plans,” documents from the case show admissions from NCAA officials that they did not intend to monitor implementation of those plans or enforce them. As this timeline shows, the NCAA has a long history of ignoring the dangers of concussions even as they were warned about how big a problem they posed to athletes — and even as organizations like the NFL were facing major lawsuits of their own. The NCAA, in fact, has fallen behind even the NFL in how it protects players from concussions.
The NCAA and lawyers from the Arrington case are currently in mediation talks trying to reach a settlement in a suit that could lead to a massive financial settlement with former athletes. And given that the NCAA’s failure to deal with concussions were a major complaint among the group of Northwestern football players that won the preliminary right to form a union last week, the case could (and should) lead to dramatic changes in how the NCAA approaches one of the biggest safety issues in sports.
Jeffrey Kessler’s Shot At NCAA Amateurism Rules
Labor lawyer Jeffrey Kessler, who has represented player’s unions in all four major American professional sports, filed a lawsuit on behalf of current and former college athletes last month that is similar to Alston’s antitrust suit but asks for no money. Instead, it’s focused merely on an injunction against the NCAA that would prevent it from capping the value of aid given to players, as it does now. That is a direct shot at the NCAA’s amateurism rules, and Kessler knows it.
“The main objective is to strike down permanently the restrictions that prevent athletes in Division I basketball and the top tier of college football from being fairly compensated for the billions of dollars in revenues that they help generate,” he told ESPN upon filing the suit. “In no other business — and college sports is big business — would it ever be suggested that the people who are providing the essential services work for free. Only in big-time college sports is that line drawn.”
Kessler, the lawyer partly responsible for bringing free agency to the NFL, just filed the suit, so it won’t reach any sort of conclusion for a long time. Some legal experts have questioned whether it’s a winnable case, and the NCAA has won antitrust suits before. Still, Kessler has a track record of success on issues like these, and McCann noted, Kessler also has the resources to make this a long, painful fight for the NCAA.
(Photo Illustration by Adam Peck. Images via AP)