Fans of college sports who would like to see the players paid but think that doing so could be difficult for many schools will sometimes offer up a Solomonic compromise: Instead of compensating athletes directly, let them sign endorsement deals. It’s free for the schools and lets players profit off of their commercial worth. Win-win.
The ruling that Judge Claudia Wilken handed down late Friday in Ed O’Bannon’s antitrust suit against the NCAA could also be described as Solomonic. For the plaintiffs, the goal of the O’Bannon suit was to allow players to be paid for the use of their images in broadcasts and video games. Wilken’s decision will make that possible—the NCAA now cannot ban schools from offering larger scholarships or setting up trust funds for their athletes to pay them once their playing days are done. However, Wilken ruled that the NCAA can limit the extra money to a mere $5,000 per athlete per year.
The decision was a historic win for players that makes mincemeat of most of the NCAA’s legal and economic arguments for “amateurism” in college sports. Yet it leaves the status quo mostly unscathed. Baby, split.
But one fascinating, and somewhat infuriating, aspect of the ruling is that it rules out the classic compromise position of endorsement deals. Wilken seems to have bought into the NCAA’s argument that doing so would undermine its ability to “protect” players from “commercial exploitation.” Here’s the language, which was apparently written with a straight face:
Allowing student-athletes to endorse commercial products would undermine the efforts of both the NCAA and its member schools to protect against the "commercial exploitation" of student-athletes. Although the trial record contains evidence—and [NCAA President Mark Emmert] himself acknowledged—that the NCAA has not always succeeded in protecting student-athletes from commercial exploitation, this failure does not justify expanding opportunities for commercial exploitation of student-athletes in the future.
In the history of ironic legal fictions, this has to be one of the most transparent. The problem isn’t that the NCAA has failed to protect players in the past. It’s that the entire endeavor of big-time college sports is, inherently, about commercial exploitation. You cannot separate the two, except in the most willfully oblivious, legalistic way possible.
The NCAA is a noncommercial entity in only the hollowest possible sense of the word. Yes, it’s a nonprofit organizing body. It still generates nearly $1 billion per year in revenue. Yes, the schools fielding teams are not-for-profit endeavors. They still participate in a business that is, for many schools, massively lucrative while handing $1 million paydays to coaches and athletic directors.
Of course, nobody involved in college sports feels the apparent need to protect athletes from the commercial predations of, oh, CBS or ESPN. But apparently it is essential to the NCAA’s mission to keep players from doing TV spots for their local car dealers.
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