Remember the O'Bannon trial? Last summer, federal judge Claudia Wilken ruled against the National Collegiate Athletic Association in a landmark case brought by former UCLA basketball star Ed O'Bannon, finding that the association's amateurism rules prohibiting campus athletes from profiting from the use of their names, images, and likenesses in video games and television broadcasts violate antitrust law. Alongside her 99-page decision—as thorough a shellacking of the NCAA's neo-plantation non-logic as you'll find this side of The Atlantic's Taylor Branch—Wilken issued an injunction allowing schools to offer big-time football and men's basketball players at least $5,000 a year in trust fund payments, which they can access after finishing with college sports.
The injunction begins on Saturday. Predictably, the NCAA is unhappy. More predictably, the association has asked a federal court to stop it from taking effect, pending the outcome of its ongoing appeal of Wilken's decision. In court documents, NCAA lawyers lay out the "irreparable harm" that will befall the booming college-sports industry if its on-field workforce receives a slightly less tiny slice of a multibillion-dollar pie: slashed scholarships and teams, "tarnished goodwill," with an amateurism-loving public, "diminished undergraduate experiences and diminished success afterward" for newly-enriched campus athletes, and even a burdensome amount of paperwork for athletic administrators.
The alarmist rhetoric and slippery-slope arguments are reminiscent of the losing side in another series of court cases: same-sex marriage. Its opponents—charitably, traditionalists; uncharitably, bigots—armed themselves with talking points that continue to echo across the cultural landscape: allowing gay couples to marry would somehow weaken and destroy heterosexual marriages. Children of same-sex marriages are "disadvantaged." Same-sex marriage will produce nearly a million more abortions, and persuade children to become gay. Homosexuality leads to "early death." Same-sex marriage will lead to "fathers marrying sons," equal rights for "people who sleep with St. Bernards," and an ultimate collapse of American society to rival the Fall of Rome.
Of course, the analogy between that fight and the battle over amateurism is far from perfect: the former has taken place against a larger, centuries-old backdrop of religious intolerance, social oppression and violent bigotry toward gay people; the latter involves money and campus athletes. Moreover, while the NCAA and its member schools are acting out of greed and self-interest, association president Mark Emmert and Co. aren't about to show up outside locker rooms holding placards reading "GOD HATES SIGNING BONUSES." In both cases, however, fear of the great unknown—via a hypothetical parade of horribles—became the bludgeon of choice in attempting to maintain the status quo.
In the case of same-sex marriage, that strategy ultimately backfired.
In 2003, Massachusetts became the first state to grant same-sex couples the right to marry. Did the state succumb to the Visigoths, one dual groom wedding cake figurine at a time? Not exactly. Nothing much changed. Certainly not for the worse. Instead, people saw what the Boston Globe described as "a wave of same-sex weddings, where countless aunts, uncles, coworkers, and friends witnessed gay couples pledge to love and support one another."
Love and support? Yawn. This wave of boring normalcy—of same-sex couples doing the exact same thing male-female couples do, to the same for-better-or-for-worse effect—discredited same-sex marriage opponents. Why trust a wolf-crier? In turn, that helped helped shift public opinion. Barney Frank, the first openly gay Congressional representative, told the Globe as much: "As long as there was no marriage then the argument that same-sex marriage wasn't going to cause problems couldn't be refuted," said Frank. "It gave us a basis to use some evidence, and show that the notion that this was going to hurt society was totally baseless."
Such is the genius of Wilken's ruling: it creates a Massachusetts-style test case for the NCAA's dire predictions, a real-world experiment, allowing college athletes to be paid without completely overturning the existing order. If a free-ish player market sends campus athletics spiraling toward oblivion, then we'll know soon enough—and the appellate judges reviewing the O'Bannon decision will have plenty of time to rescue a beloved American institution.
On the other hand, if permitting competitive compensation for athletes doesn't sink big-time college sports—if treating players more like coaches and administrators and professors and university presidents results in the same old college sports, only with schools spending more on talent and less on fancy weight rooms—well, then we'll know that, too. And the NCAA will look even more foolish. Foolish to the public at large, and especially foolish before Wilken, who currently is overseeing an O'Bannon follow-on case that threatens to end campus amateurism entirely.
College athletes are being shut out from a basic right—in this case, the freedom to enjoy competitive compensation for their valuable talents—that everyone else already enjoys. The NCAA is Rick Santorum, bleating about a slippery slope to legalized bestiality. In fact, the louder and more hysterical the association's dire warnings about schools being allowed to pay athletes become, the less supported by evidence they seem to be:
* Schools just can't afford to bid for star athletes: Wilken's injunction doesn't force any particular institution to pay any particular player a particular amount of money. It simply prevents the NCAA cartel from hammering schools that choose to do so. As O'Bannon's lawyers state in their response to the association's delay request:
"The simple fact is that no member school needs to change a thing under the injunction if it does not wish to do so. If the NCAA is correct, and modest compensation to college athletes is truly so thorny, no member school will choose to offer it after August 1, 2015. The NCAA's rampant speculation is no reason to deny the schools the freedom to make these decisions."
Moreover, there's a whole lot of cash in the burgeoning big-time college sports industry, from the association's $900-million-a-year March Madness television deal to ESPN paying power conference schools $608 million annually for the broadcast rights to seven football games. Bottom line? Athletic departments that decide to redirect more of that money to their most valuable employees probably aren't going to go broke.
* Okay, maybe schools can afford it, but they'll have to cut non-revenue sports: Maybe! Schools slashing men's baseball or women's soccer over the objections of students, parents, and alumni—all while courting backlash from boosters, donors, the press, advocacy groups like the Women's Sports Foundation, and industrious Title IX lawyers—is certainly possible. Alternately, athletic directors could decide to cover increased football and men's basketball player costs by trimming gold-plated coaching salaries, facilities upgrades, administrative pay packages and other bloated budget items. Does Indiana University need a $150,000-plus-a-year men's golf coach, or could it find someone competent for half that amount?
* Fans will abandon college sports if players aren't "amateurs": Again, maybe! Perhaps people don't love major college sports for the school affiliations and high-level athletic competition. Perhaps the real joy comes knowing, deep in one's soul, that talented athletes such as Ohio State University quarterback Cardale Jones will be punished severely if they receive a single motherfucking dollar more than the listed value of their room, board, tuition, and—starting this season—cost of living stipends. Of course, were that the case, one might expect football fans in the bag-man-sodden Southeastern Football Conference to defect en masse; for television networks to throw gobs of cash at Division III football programming made up of small-time talents paying for the privilege of playing at small-time schools; and for audience numbers for the 2011 Sugar Bowl—featuring an Ohio State team led by gear-for-free-tattoos amateurism violators—to have been moribund, not robust.
* Money is bad for you, but only if you play college sports: Earning money absolutely leads to diminished undergraduate experiences and post-school success, which is why NCAA member schools ban all students from holding campus jobs. Oh, wait.
* But-but-but figuring out how to set up athlete trust funds is an awful lot of work! If only schools already knew how to run payrolls and retirement plans for hundreds of employees, or manage large investments over multiyear periods, or set up lucrative deferred compensation packages for individuals connected to their athletic departments.
Worse still for the NCAA's doomsday rhetoric? Big-time college sports already are adjusting to the O'Bannon decision. The world, and University of Alabama coach Nick Saban, continue to spin. Once upon a time, the NCAA argued that paying athletes stipends covering the full cost of school attendance would lead to fewer scholarships, schools quitting Division I and general chaos; in January, the association's five wealthiest conferences voted to do just that. Middle Tennessee State University is funding its stipends by eliminating pay raises for its head football coach; Colorado State University is funding the same by repurposing a $7 million buyout it received from a departing coach; and the University of Texas is reportedly covering $10 million worth of stipends for 500-odd athletes by trimming funds for its marching band. Alabama's reported stipend for out-of-state football players is $5,386—higher than likely trust-fund payments.
Meanwhile, scholarships and teams remain intact. The University of Kentucky announced plans to increase its athletics budget from $109 million to $124 million. The NCAA's top lawyer is coming off a reported 25 percent pay raise in 2013-14. At the University of Florida, football coach Jim McElwain says he's "excited" for players to receive more money, while University of Georgia coach Mark Richt reportedly is setting up a program to teach his players how to manage their newfound cash.
"As a freshman, if you start saving, you can have a large sum of money saved," Georgia lineman John Theus told the Columbus Ledger-Enquirer. "Some guys like to spend their money. Some guys have the things they like, watches or whatever it may be. They might to choose to spend it on that. But Coach Richt is going to educate the guys and try to make them realize this is money they can save."
Money they can save. While the NCAA warns of a looming threat to "college sports as they have long been known and loved by participants and fans alike," actual athletes receiving actual paychecks will be learning about the miracle of compound interest. How very ordinary. How very boring. Sound familiar? During the battle for same-sex marriage, equality advocates made a surprising discovery: opinion polls moved in their direction as soon as the public realized gay couples weren't attempting to change marriage, but rather be a part of it. They didn't want to destroy a social institution; they simply wanted an equal opportunity to celebrate love.
Similarly, the O'Bannon plaintiffs—and other former and current college athletes pressing for change—aren't looking to ruin campus sports by making them commercial. They're just looking to fully participate in an industry that's already commercial, joyously and unapologetically so. Wilken's injunction will be their first real chance. The NCAA knows as much. And that's why the association is running scared, begging the courts for a last-minute timeout. Like the same-sex marriage foes that came before them, the worst-case scenario for amateurism's true believers isn't a predicted parade of self-enumerated horribles. It's business as usual on an empty street.