Former UCLA basketball player Ed O’Bannon’s lawsuit against the NCAA returns to court Thursday, when a federal judge in Oakland, California will hear arguments over whether the case can continue as a class action complaint. Class action status would allow O’Bannon and the plaintiffs to represent college athletes as a whole in the suit, which asserts that current and former athletes have a right to share in the profits and revenues gained through the sale of their likenesses and images for broadcasts and video games.
There are a wide range of opinions about whether O’Bannon’s case will be successful, both in this specific suit, and in terms of more general precedent. But regardless of the legal merits of the claim to broadcast and video game rights fees, the central tenet of the current NCAA system — that athletes are amateurs and not uncompensated participants in a business — is one NCAA officials are desperate to protect. And their arguments continue to strike me as tenuous. Take, for instance, the argument the University of Texas’ Christine Plonsky made in an email, reported by the New York Times today, to Big XII Commissioner Dan Beebe when O’Bannon filed his suit:
“Has our N.C.A.A. board decided not to defend the notion that playing N.C.A.A. sports is not forced?” Plonsky wrote. “It is a voluntary sign-up. We’re like a version of the Army.”
Referring to student-athletes, she added: “We have things we have to do a certain way to raise funds and pay for the scholarships and other things that [student-athletes]’s and their parents expect. I view these cases as being the result of the entitlement attitude we’ve created in our revenue sports.”
Whether participation in college athletics is compulsory is irrelevant. Employees in other occupations aren’t forced into their jobs either, but that doesn’t mean they don’t have a reasonable expectation of compensation for their work. The comparison to the Army is especially odd, since the U.S. government pays members of the military. And other voluntary employees have the ability to bargain for fair compensation too, because they have the option to take their services to another employer.College athletes can’t do that, first because the NCAA has unilaterally determined that a scholarship constitutes fair compensation and that anything above that is a violation of its rules. And in addition, no competitor organization, with different rules and different compensation, exists. So the NCAA, as historian Taylor Branch has argued, operates like a cartel, a de facto minor league for professional leagues and a system in which athletes (particularly football players) must participate if they hope to continue their careers professionally. That has allowed the NCAA to determine their own price for labor without any input from athletes, even as the organization turns millions of dollars in revenues off of their services.
Meanwhile, colleges and universities like Plonsky’s Texas are using their revenues to fuel massive increases in coaching salaries and huge investments into facilities, not on “scholarships and other things” athletes “and their parents expect.” At Texas, for instance, the athletic director, football coach, and men’s and women’s basketball coaches make a combined $9.8 million each year. That’s the story across college sports, where schools are paying out huge salaries and making multimillion dollar investments into stadiums, scoreboards, and other facilities. There are definitely schools that couldn’t afford to compete in a system that compensates athletes, but for reasons I’ve outlined before, that isn’t a valid argument for not compensating athletes.
Finally, it isn’t an “entitlement attitude,” which Plonsky blames regularly, that leads to the belief that people providing a service to a business deserve to be compensated for their work. Such a statement is on its face absurd, but it’s also revealing of the mindset that is pervasive among the NCAA executives and college presidents who oversee college sports. That paternalistic vision leads those overseers to believe that only they can determine what is best for the athlete. And the consensus is that what is best is the “amateur” system they’ve crafted that makes a lot of adults a lot of money. Those profits are supposed to be acceptable because schools gives athletes a scholarship, even if the education that scholarship purchases is often made secondary to their participation in sports, and even if the athlete never had a say in whether that business model was fair in the first place.
I don’t know if Ed O’Bannon is going to win his lawsuit. There are strong legal analyses suggesting he won’t. But as long as the Plonsky mindset pervades the NCAA, the association will keep facing legal challenges. And eventually, it seems, a system that has always existed because of the athletes but has never existed for them will end up crashing down.