The O'Bannon Injunction Delay Is a (Relative) Win for the NCAA

Taken at face value, the decision on Friday by a panel of federal appellate judges to grant the National Collegiate Athletic Association's request for a stay of the injunction in the landmark antitrust lawsuit brought by former UCLA basketball star Ed O'Bannon is neither a win nor a loss for either side in the ongoing battle over amateurism in college sports.

However, reading between the lines, it's not a good sign for campus athletes.

When federal judge Claudia Wilken ruled against the NCAA last summer by finding that the association's rules prohibiting campus athletes from profiting from the use of their names, images, and likenesses in video games and television broadcasts are illegal, she also 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.

In other words, Wilken's injunction would have allowed "amateur" college athletes to be paid by their schools, albeit in delayed, not-quite-free-market fashion.

The injunction was scheduled to begin on Saturday. Predictably, the NCAA wanted to stop it, and recently asked for a delay, pending the resolution of their appeal of Wilken's entire decision. That appeal is ongoing—all oral and written arguments have been made, but no decision has been issued—and the three judges who granted the NCAA's delay request with a two-sentence ruling said their tabling of Wilken's injunction should not be viewed as a sign that O'Bannon is about to be overturned:

"Without expressing a view as to either party's likelihood of success on the merits, the court grants a stay of the district court's injunction in this case, dated August 8, 2014, to preserve the status quo until this court's mandate has issued."

Perhaps that's true. Maybe the judges reviewing O'Bannon simply need more time to review the evidence and make up their minds, and in the interim, they want college sports to remain unchanged. If that's the case, both the NCAA and the O'Bannon plaintiffs remain where they were as of yesterday, waiting for a comprehensive ruling. No harm, no foul, keep running the clock.

Personally, I suspect there's more to this.

In requesting an injunction delay, the NCAA made essentially the same argument it made during the O'Bannon trial, and also in its appeal of Wilken's decision: namely, that allowing schools to pay athletes will harm and destroy college sports. Scholarships will be slashed, non-revenue sports teams will be eliminated, fans who tune into the Iron Bowl for the sheer giddy joy of knowing the guys on the field aren't getting a dollar more than their scholarships will turn away, cats will live with dogs, and the whole thing will go kaput.

I've argued, many times, that this is balderdash. If the three-judge panel fully agreed—or, at the very least, if they were at all close to issuing a pro-athlete verdict—then they likely wouldn't have bothered to delay Wilken's injunction. What would have been the point? Granting the NCAA's request suggests that the appellate judges are at least moderately sympathetic to its arguments, or that they haven't thought said arguments through enough to dismiss them entirely. A stay denial would have been a clear victory for the O'Bannon plaintiffs; Friday's last-second ruling is more like a tie. The bad kind.

Moreover, there are two other ways delaying Wilken's injunction hurts campus athletes. First, and most obvious, is that some of them were about to get paid. Real money! Money they won't get back. Who likes getting their pocket picked? Second, as I argued this week, college sports were on the verge of having a real-world test case for player pay. Instead of spewing alarmist rhetoric about a universe without amateurism, the NCAA and its member schools would have been forced to put up or shut up. Everyone with a strong opinion about restricting the economic rights of college athletes for the sake of, I don't know, Athenian purity or something—fans, coaches, administrators, judges, lawyers bringing other antitrust cases against the NCAA—would have gotten to see just how awful allowing players to realize a limited portion of their market value really could be.

My guess? It wouldn't be bad. At all. More money to the players who sweat and bleed and get their brains bashed in for our entertainment; less money to coaches and athletic directors and gold-plated locker rooms; a lucrative, thriving college sports world that continues to spin on its axis. Of course, that's just my guess—and until the O'Bannon appeal reaches its final conclusion, perhaps in the Supreme Court, Friday's injunction stay means that all we can do is guess.