Big 10 Commissioner Cries Wolf in O’Bannon Lawsuit Against NCAA

 

Big 10 Conference Commissioner Jim Delaney decided to play the big Boogie Man card in Ed O’Bannon’s lawsuit against the NCAA for using college athletes likeness and names without permission to make big money.

Delaney used his March 18 press conference to announce that if the plaintiffs ultimately win their lawsuit and colleges have to negotiate agreements with players to continue to use their likenesses and names (not to mention the enormous sum of back damages that they would likely have to pay) that the Big 10 schools would likely stop competing at the highest level of collegiate athletics.

The Big 10 filed a brief in support of the NCAA’s opposition in federal court in northern California to the granting of class action status to Ed O’Bannon and the other named plaintiffs in their lawsuit, which alleges that the NCAA has for years violated athletes’ rights by using their likenesses and names for merchandising purposes without permission and without paying licensing fees.

The plaintiffs have over the past three months won several procedural disputes in the case. It is beginning to appear as if the NCAA (other named plaintiffs are EA Sports and Collegiate Licensing Company) may lose at summary judgment, which would mean that the case would go to trial. The plaintiffs have won disputes over discovery and the defendants now have to produce records and documents that provide information about just how much money schools have been making on the backs of student-athletes.

Delaney specifically mentioned that the conference might follow the example set by the Ivy League and Patriot League where all aid to athletes is need-based (as is aid to all students at those schools); thus there would be no more athletic scholarships. Alternatively, the Big 10 schools might simply decide to join Division III.

Mount Union College in Ohio has been a major power in Division III football for a number of years. It is difficult to imagine the Mount Union team, which plays in a 5,000-seat stadium, playing a home and home series with Ohio State, which plays in a 101,000-seat stadium. It is just as difficult to imagine the Michigan football team traveling to the Boston area to play Harvard in its 30,500-seat stadium.

Delaney insisted that these two models are actually more compatible with the academic mission of Big 10 schools than the one they currently use. The interesting part of this press conference was that he said all of this with a straight face.

It is true that Southeastern Conference football teams have won seven straight national championships at the Football Bowl Subdivision level. Big 10 schools, nevertheless, count among its member schools ones that maintain athletic budgets at the high end of college athletics. At least four member schools have annual athletic budgets that are well above $80 million.

It is a time honored tactic of defendants in lawsuits to play the cry-wolf card. If we lose, the world as we know it will end. Big-time college sports are such an important part of the fabric of American life that sound public policy dictates that the court in this case deny plaintiffs class action status. Maintenance of the American way of life demands no less. This is essentially the NCAA’s argument.

It should be remembered that the University of Chicago was a charter member of the Big 10 conference. That university made the decision in the 1940s to emphasize education and scholarship over athletic success. Given the policies adopted by Big 10 schools in the past 20 years, it is difficult to see its members voting to follow the Ivy League sports model, much less move its athletic programs to Division III. Among other things, the conference has its own cable TV network that is raking in piles of cash profits each year. The network has contractual obligations that could be tested, if the league de-emphasized sports.

That is not to say that such a move would not be applauded in some circles. NCAA schools at the top of the athletic food chain have for years talked about academic integrity and the need to fit athletics into the overall educational model of universities. Professors on all member school campuses would no doubt applaud such a move.

America should not hold its breath, though, waiting for the other shoe to drop. Forty years ago, these sorts of arguments were trotted out in opposition to the passage of Title IX. School athletic department officials whined and moaned that if they were forced to properly fund women’s sports teams it would bankrupt the college athletic system. From a present day vantage point, these fears were unfounded.

It is likely that if the Big 10 schools did seriously consider such a decision regarding its member athletic programs that there would be alumni rioting in the streets and occupying athletic department offices. There would be scenes reminiscent of anti-war protests of the 1960s.

It is actually a significant development that Delaney would make these statements. It shows that NCAA types are quite afraid that the plaintiffs in the O’Bannon case can win at trial and that the days of treating college athletes as indentured servants are likely coming to an end.

To read more on developments in this lawsuit, please read this SI.Com story.

Greg Tyler is the Library Director at the United States Sports Academy. He has also taught courses at the Academy in sports law. He worked for years in youth sports as a coach, league administrator and as a soccer referee. He has a law degree and practiced law for a number of years. You can reach him at gtyler@ussa.edu.

 

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