Would the rise of quasi-professional student athletes harm college sports?

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    The National Collegiate Athletic Association has long defended the idea of the amateur student-athlete, but that concept is facing its toughest trial yet. In fact, it's literally a class-action trial under way in a federal district court in Oakland, California.

    The lawsuit contends the NCAA should permit former and current college basketball and football players to profit from the use of their names, likeness and images in television broadcasts, video games and other media. The case's origins go back to a lawsuit first brought by former UCLA basketball player Ed O'Bannon after he saw his likeness in a video game. It's evolved into a much bigger suit against the NCAA, with potentially bigger implications.

    Today, NCAA president Mark Emmert took the stand.

    We're joined now by Michael McCann. He is director of the Sports and Entertainment Law Institute at the University of New Hampshire.

    Michael McCann, welcome back to the NewsHour.

    So, tell us, at its core, what is this case about?

    MICHAEL MCCANN, University of New Hampshire School of Law: Sure.

    So, at its core, the Ed O'Bannon case is about whether or not Division I men's basketball and football players, so students at the highest level, should be able to negotiate for their name, image and likeness, when they're on television, when they're in archival video, when they're on Web video, when they're in video games, when they're somehow related to apparel or eve trading cards.

    Anything using their name, image and likeness, they're arguing they should be able to negotiate money for that, some type of compensation. Now, under NCAA rules, they are barred from doing so. The NCAA has a system called amateurism, which focuses on a stark distinction between professional and amateur sports.

    O'Bannon argues that distinction is flawed and it's in violation of antitrust law. And the basic antitrust theory is this. The NCAA and its members have purportedly joined hands, so the NCAA conferences, individual colleges, to prevent them from negotiating, and that's an anti-competitive market and they should be able to negotiate.

    And they hope that Judge Wilken will issue an injunction allowing them to do so.


    So they're arguing the antitrust provision is their way — it's their way in, in this argument?


    That's right, Judy.

    Their way in is the antitrust argument, the idea that there's a cartel, they have called it, a conspiracy, others who are making money off of their name, image and likeness and denying them the opportunity to even negotiate. The athletes have said, look, we're not asking for millions. We just want to have an opportunity to negotiate.

    Now, the NCAA — in fairness to the NCAA, it has a number of arguments, including the fact that they have had this institution for years and that they believe college sports would be harmed if student athletes were quasi-professional, as they have described them.


    How do they argue they would be harmed?


    Well, the NCAA believes that some schools would cut their sports programs. If student athletes, specifically men's basketball and football players, are able to negotiate for their name, image and likeness, some of that money would have gone to their colleges, will now go to them.

    So that could require schools to lose some money, and it could be more expensive to have sports, so the fear is that, if this system comes about, some schools will cut their sports programs, or more likely cut some aspects of their sports programs, and there's another area of law that we know is called Title IX that would prevent schools from just cutting women's teams so the women's teams would remain, but the men's teams that are, say, golf, tennis, maybe baseball, lacrosse, other sports that are not typically generating revenue would be axed from the program.

    And the NCAA believes that once you allow student athletes to be essentially professionals — now, the O'Bannon team would say that is untrue, but let's just go with that — that fans would become less interested in college sports, less money would go into it, and as a result schools would be more inclined to downsize their sports programs.

    So that's the central thesis.


    And how does the plaintiff, how does Ed O'Bannon himself and the people who are bringing this suit who represent his point of view, how do they counter that argument?


    Well, part of the argument, Judy, is they argue that that's just not true, that college sports fans would still like sports in college even if student athletes were able to negotiate for their name, image and likeness.

    And they would likely do so not individually, but through a trade association. So the idea that there would be sports agents on campus negotiating contracts, that could be true for some of the elite college athletes, but it's unlikely to be true, at least O'Bannon argues, for the mainstream basketball and football player.

    So they believe that the parade of terribles that might occur really isn't true. And they have also argued, regardless of whether it's true or not, that doesn't mean that antitrust law is violated by the system, that a system where they're denied an opportunity to negotiate because of a — quote, unquote — "conspiracy" or "cartel," that that's illegal, regardless of the effect it would have on college sports.


    Now, finally, Michael McCann, whatever the judge rules, this is an argument that goes on, and there are other efforts to change the relationship between college athletes and the sports they play, are there not?


    Yes, that's exactly right, Judy.

    So, as a starting point, let's say O'Bannon wins. There will be an appeal. And an appeal will likely take years. It would have to go to the U.S. Court of Appeals for the Ninth Circuit and then potentially to the United States Supreme Court, so there won't be a resolution in this case for some time.

    But, like you mentioned, there are other litigations going on. There's an argument brought by Kain Colter, a football player at Northwestern University, who argues that he's an employee, that college football players are employees, and they should be able to unionize. That's before the National Labor Relations Board.

    There's a separate case over whether or not college scholarships for sports are illegal. The NCAA is being attacked with a number of cases. And it would have to run the table to keep it the way it is. And that seems unlikely to happen.


    Well, we will continue to watch this trial under way in California.

    For today, Michael McCann, we thank you.


    Thank you, Judy.

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