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The O’Bannon Ruling Is Just a First Step Toward Economic Justice for College Athletes

The NCAA lost the battle, but the war is still playing out in the courts and the media.
Photo by Nelson Chenault-USA TODAY Sports

The NCAA has been such an insufferable institution of cloddish, predatory, wildly profitable (mis)management for so long that any assault on its unaccountability is cause for celebration. So it was understandable to see people shouting "we won!" when US District Judge Claudia Wilken's 99-page ruling in O'Bannon v. NCAA effectively told the NCAA to put an egg in its shoe and beat it by declaring that college athletes could make money off of their names and likenesses. Maybe it resonated at the purely on-field level: These are the bozos who resisted a playoff system in college football for years. Finally someone is punishing them! Or maybe the anger here is based off of class: Fuck these rich, chair-moistening clowns.


Either way, it's important to understand that the verdict shouldn't satisfy those of us who want to see college athletes fully compensated for their labor. From the beginning the O'Bannon case has been bundled up with aggregated fan-and-journalist frustration with the NCAA, but what Wilken's decision addresses is but a small subset of the whole, though it does allow for the possibility of radical and comprehensive changes.

College athletes need to get paid for some very simple reasons. Read more.

The story of the case is this: In 2009, Ed O'Bannon, a player on the UCLA Bruins' championship-winning 1995 squad, sued the NCAA for illegally profiting off his likeness. A friend had showed O'Bannon an EA Sports video game that featured a player on the 1995 team that wore his number, played his position, looked (mostly) like him, and even had his shot. O'Bannon was paid nothing for the use of his likeness because NCAA rules concerning "amateurism" prohibited players from earning money like that—and, anyway, that wasn't officially "him" in the game anyway.

The notion that college sports video games don't include real-life athletes was a polite fiction that was always laughable to anyone who scrutinized it. EA paid the NCAA for the right to these games because it knew fans would know players well enough to recognize them, even without their proper names and with somewhat fudged faces. The brand authenticity was the primary reason for gamers to buy the product. It's safe to say that without avatars that resembled real players like O'Bannon, EA's game wouldn't be profitable, yet the players themselves don't receive a dime. (After settling with a group of college football players in a similar case last year, EA announced it would stop making its NCAA football game; the company had already stopped producing NCAA basketball games.)


Wilken's ruling in favor of O'Bannon has simultaneously opened and closed some doors. First, she said that the NCAA violates the Sherman Antitrust Act, which hands welcome ammunition to other plaintiffs suing the NCAA, who can now can point to Wilken's ruling and argue that this issue is settled. Second, she torches the NCAA's claims about amateurism, exposing it as a dog's breakfast of contradictory reactive policies:

The historical record that the NCAA cites as evidence of its longstanding commitment to amateurism is unpersuasive. 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 association's current rules demonstrate that, even today, the NCAA does not consistently adhere to a single definition of amateurism. A Division I tennis recruit can preserve his amateur status even if he accepts ten thousand dollars in prize money the year before he enrolls in college. A Division I track and field recruit, however, would forfeit his athletic eligibility if he did the same. Similarly, an FBS football player may maintain his amateur status if he accepts a Pell grant that brings his total financial aid package above the cost of attendance. But the same football player would no longer be an amateur if he were to decline the Pell grant and, instead, receive an equivalent sum of money from his school for the use of his name, image, and likeness during live game telecasts. Such inconsistencies are not indicative of "core principles."


But while Wilken ruled in O'Bannon's favor by saying that his likeness was inappropriately used without his compensation, she has also prematurely capped future compensation in a way that many would consider wildly out of whack with the NCAA's revenue and players' roles in creating that revenue.

Wilken stipulates that players can earn up to $5,000 per year for their name, image, and likeness rights (NIL), on top of their scholarships. It's generous when compared to nothing, but $25,000 per athlete over five years is vanishingly small when you consider that CBS and Turner Broadcasting spent $10.8 billion for 14 years of the March Madness tournament alone. That's just a month of basketball—not broader TV rights, not merchandise, not video games.

The low number just underscores the broader paternalism that has suffused the NCAA for its entire existence. The $5,000 per annum fairly screams off the page, "Let's not turn these young men's heads with too much money." Though she ruled in favor of the plaintiffs, she was clearly swayed by some of the arguments made by the NCAA. Of kids signing ad and appearance contracts, she writes, "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."

If cash and commercialism corrupt, then the NCAA must be rotten to the core.


This kind of hand-wringing is a little late. If cash and commercialism corrupt, then the NCAA must be rotten to the core. Yet we are expected to believe that it can be entrusted with guiding the personal development of the same players that Wilken has just acknowledged the NCAA has been bilking for decades.

More to the point, Wilken's stopping here puts another arrow in the quiver of every crusted (usually white) dad arguing about paying players—the type of dude that everyone is sick of going blue in the face arguing against. It's possible that future rulings will render popular opinion irrelevant, but for the time being expect to hear more about how these ungrateful kids who don't realize how many Americans will play these sports for nothing are already whining that that extra money isn't enough.

The NCAA wants to leverage this ugly sentiment. Not only has it relied on the same tactics that MLB, NBA, NFL, and NHL ownership do to stoke fan resentment—i.e. keep your eyes on the malcontented privileged youths "playing" for a living and not at the motionless white guys in the luxury boxes making millions without lifting a finger—but it likes to seem beneficent and generous in the face of athlete ingratitude. Last week, the NCAA granted the Power Five conferences (the ACC, Big 10, Big 12, Pac-12 and SEC) more autonomy in setting cost-of-attendance stipends and insurance on athletes, among other measures, allowing them to compensate their players beyond scholarships.


The change is cynical in two ways. One, it prevents the outright secession of the Power Five, which would have destroyed the NCAA. Two, it allows the schools that dominate popular sports and already have the most financial resources to expand services to athletes at their discretion and undermine the exploitation narrative.

That may not seem like much, but consider Wilken's ruling again. The headline—"NCAA Loses Big!"—makes the verdict seem like a slam dunk in the players' favor. Yet even now, an arbitrary cap is set on athletes' NIL rights, and they remain firmly under the economic control of the institutions that had so thoroughly exploited them. It was as if in the middle of ruling on a foster parent who embezzled a ward's Social Security checks, a judge had said said, "Try sharing more of the checks and using Quicken."

The NCAA is appealing Wilken's ruling, but beyond that, it wants other judges in other cases to look at the state of college athletics and decide the players aren't being exploited. It also needs to get public opinion back on its side. If big-time programs in the Power Five are giving extra "cost-of-attendance stipends" to their players and NIL rights are earning some athletes a few grand a year, maybe columnists and bloggers will stop complaining so much about the injustice of the system and maybe the crusade will abate.

That's what's troubling about this ruling—the prospect that after it, the status quo will remain relatively untroubled. The temptation is to celebrate this victory, though big-time college athletics remains a monopoly in which workers aren't paid nearly what they're worth. We can't rest here; we should be looking at how much farther there is to go.

Jeb Lund wrote the America's Screaming Conscience column for Gawker and covered the 2012 election primaries for VICE under the pseudonym Mobutu Sese Seko. He is a contributor to the bad books podcast, I Don't Even Own A Television. You can follow him on Twitter.