How One Judge Just Undermined One Of The NCAA’s Biggest Arguments Against Paying Athletes

Ed O’Bannon celebrates winning the 1995 NCAA basketball championship. CREDIT: AP
Ed O’Bannon celebrates winning the 1995 NCAA basketball championship. CREDIT: AP

A federal judge on Friday handed down her decision in the case of Ed O’Bannon v. NCAA, ruling that collegiate athletics’ governing body cannot prohibit college athletes from profiting off of the use of their name, image or likeness.

U.S. District Judge Claudia Wilken determined that using a college athlete’s celebrity to sell millions of dollars’ worth of merchandise and ink lucrative television contracts without giving them a cut violates federal antitrust laws.

Though the decision doesn’t directly relate to the larger debate over whether or not college athletes deserve to be paid like any professional athlete, a key passage in Wilken’s 99-page ruling could spell trouble for the NCAA’s other outstanding lawsuits.

The O’Bannon case is but one of several high-profile lawsuits brought against the NCAA and it’s oversight of a multi-billion dollar industry.


In defending its policy of not compensating athletes, the NCAA routinely relies upon the term “amateurism.” To hear them describe it, amateurism refers to the notion that so-called “student-athletes” aren’t professional athletes at all, and thus don’t deserve to be paid as such. The NCAA has clung to the term for decades, but Wilkens only needed a few sentences to flambee the NCAA’s entire amateurism model.

“The historical record that the NCAA cites as evidence of its longstanding commitment to amateurism is unpersuasive” wrote Wilken. “This record reveals that the NCAA has revised its rules governing student-athlete compensation numerous times over the years, sometimes in significant and contradictory ways. Rather than evincing the association’s adherence to a set of core principles, this history documents how malleable the NCAA’s definition of amateurism has been since its founding.”

The NCAA argued that amateurism has been at the core of organized collegiate athletics since the organization’s inception in 1906, but Wilkens pointed out that the NCAA’s own definition of amateurism has changed repeatedly over the last 100 years, and even today is applied differently between sports. “Such inconsistencies are not indicative of ‘core principles.’,” said Wilken.

In just about every case brought against the NCAA dealing with student-athlete compensation, the NCAA has structured its defense around the idea that these athletes are students first, and therefore not entitled to the same benefits that professionals receive. Even the term “student-athlete” was carefully crafted verbiage meant to fortify the notion of amateurism.

By undermining the NCAA’s amateurism model, Wilken may have paved the way for other lawsuits to further erode the obstacles separating college athletes from the compensation to which many argue they are entitled.


In her decision, Wilken ruled that FBS football players and Division I Men’s Basketball players are legally entitled to some of the billions in profits generated by universities’ use of their names and identities to sell tickets, merchandise and broadcast rights. Those two sports are by far the largest sources of revenue for college athletics departments (and therefore are the main focus of suits like O’Bannon), but it also calls into question whether these cases run the risk of leaving top-tier female athletes behind. A player like Brittney Griner for instance, who made national headlines during her career with Baylor, would not be eligible for compensation under Wilken’s ruling.

The NCAA, while disappointed in the verdict, wasn’t totally shut out. Wilken capped the total compensation an athlete could receive at $5,000 per year, on top of the scholarships and cost of living expenses that athletes already receive. And that money will only be paid out once the athlete leaves his college program. Schools are also free to set their own caps below $5,000 so long as it isn’t done in collusion with other athletics programs.