Thursday, February 27, 2014

Sports Hypocrisy All Our Own

The hypocrisy of organized sporting institutions (particularly those that were founded as "amateur" associations) is not limited to FIFA, nor to European-based fiefdoms. But one of the elements that enables FIFA's and the Olympic Organizing Committee's, continuing high-handed corruption is the lack of a governing body to, well, govern them.

Not so in the United States, where the NCAA is facing attacks in several judicial bodies by the individuals who have made it and its member schools billions of dollars, the same folks that the NCAA insists on calling scholar-athletes.

The Through the Looking Glass logic of the NCAA is hard to deny, particularly after the recommendation of its football rules committee this month that offensive teams be charged with a delay of game penalty for snapping the ball within the first ten seconds of the play clock. You read that right: delay of game for playing too quickly. The proposed rule has been dubbed the "Saban Rule" after Alabama head coach Nick Saban, who supports the rule apparently because "run and shoot" offences provide opponents with the opportunity to actually compete with a school that routinely has the best recruiting class in the nation. Whether the fact that only one of every five college coaches support the change matters more to the NCAA than what Saban desires remains to be seen.

While court action is unlikely with regard to the Saban Rule, the NCAA does face serious challenges in several other areas which may well force its hand with how it administers college sports. First came former UCLA basketball player Ed O'Bannon's law suit against the NCAA and its corporate partners EA Sports and the Collegiate Licensing Company seeking compensation for players who either appeared in video games or in televised broadcasts while in college.

O'Bannon's case has slogged its way through the legal system and reached a tipping point in late December 2013 when U.S. District Court Judge Claudia Wilken certified a class of former college players (comprised of O'Bannon and other named plaintiffs including Bill Russell) that sought licensing fees from EA Sports and CLC, but ruled that they could not proceed as a class on their claims against the NCAA for the use of their likenesses in televised broadcasts.

The ruling may appear a victory for the NCAA, but it still faces the claims made by the individual plaintiffs in the case, and it could have to face the daunting prospect of trying to resolve not one but hundreds of individual cases brought in all 50 states instead. Just as importantly, because the certification of the class against EA Sport and CLC would give the former athletes the rights to their own images while in college, the NCAA sought the stay of a ruling regarding a similar class in another class action which was denied by the United States Supreme Court.

In the back-and-forth between lawyers after Judge Wilken's ruling was issued, the NCAA repeated its mantra regarding "student-athletes" and the many benefits to which they are entitled in yet another attempt to justify the fact that it and its member schools make billions of dollars from the labor of their football and basketball players (and pay their coaches millions of dollars at the same time). 

Meanwhile, Northwestern University football players have taken steps to organize and join a union. The critical issue in that case, is, of course, whether football players are employees of the university or are merely (wait for it ...) student-athletes. The NLRB held hearings last week in Chicago in the case, in which Northwestern introduced a number of witnesses to testify that its athletes (who, with their 97% graduation rate, are probably more "students" than at most U.S. universities) receive academic support and are limited in the amount of time that they are allowed to practice or otherwise participate in their sport.

Former Northwestern quarterback Kain Colter, who is leading
the effort of its football players to organize (photo from Deadspin).

If past cases are any indication, the players may have a tough go of it. An effort by graduate assistants at Brown University to organize last decade was denied by the NLRB, which found that the assistants were primarily students, not employees, and reversed a prior decision of the Board to the contrary. But left unanswered is the question of why one cannot be both. "I don't know that there's anything inconsistent with being a student and an employee," noted Craig Becker, the AFL-CIO's general counsel.

The ultimate decision in the NLRB case may rest on the next Presidential election, as it's unlikely that it will be submitted to the consideration of the entire Board until 2016. Just as in Brown case's George W. Bush's Board reversed precedent regarding the organizing efforts of graduate assistants at private institutions, so too the next Board is likely to be comprised of a majority of pro-union or pro-employer members depending on whether a Republican or Democrat next sits in the White House.

Regardless of the outcome in that case, however, the O'Bannon case is likely to have a more immediate impact, both because it appears to be nearing it apex (trial is scheduled for this June) and because it will likely hit the NCAA where it hurts the most - its pocketbook and that of its member institutions. It's hard to see the NCAA's position regarding compensation of players for the use of their likenesses as anything other than archaic, last ditch attempt to cling to the same arguments that Major League Baseball made and ultimately lost long ago regarding its reserve clause, which essentially made players indentured servants to their mother clubs.

While the NCAA has a valid point that players do receive at least the opportunity to receive a higher education through their scholarships, the value of that education so pales in comparison to the billions of dollars flowing to the NCAA and its members that it is difficult to perceive that as adequate or just compensation in the 21st Century. While O'Bannon's case against the NCAA may or may not ultimately succeed, one suspects that the recent movement toward paying football and basketball players some amounts in addition to their tuition and room and board may be an avenue to at least limit whatever future financial bleeding may result from his case and thousands of others that will follow if it is successful.

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