And yet here we are, with the dust settling on that appeals court decision, and the N.C.A.A. not only is still standing but has barely been dented. Although Michael Hausfeld, Ed O’Bannon’s lead lawyer, quickly declared victory — and having the N.C.A.A. deemed an antitrust violator surely is a victory — the N.C.A.A. wasn’t exactly perturbed by the outcome. In a conference call, Mark Emmert, the association’s president, pronounced himself “pleased.”
As well he should be. For in each of the three rulings, the arbiters blinked.
The labor board, after hearing Northwestern’s appeal of Ohr’s decision, declined to rule on whether the football players were employees, even refusing, in a remarkable act of cowardice, to assert jurisdiction. Its abdication was a defeat for the players; one potential avenue of redress is now cut off from them.
Judge Wilken, for her part, ordered the N.C.A.A. to allow colleges to pay the full “cost of attendance” to football and men’s basketball players — that is, the difference between a player’s scholarship and the additional $3,000 to $4,000 expense of going to college. But this was something the association had already agreed to do, after pressure from the powerful conference commissioners.
She also said that schools could put up to $5,000 in a trust fund that a player could have access to once he left college. In other words, after saying that schools and the N.C.A.A. had colluded illegally, she basically agreed to sanction the collusion, just at a higher amount.
The Ninth Circuit decision was perhaps the bitterest blow of all. After spending much of their decision explaining why the amateurism rules are not exempt from antitrust scrutiny, the two judges in the majority spent the latter part of the decision echoing the N.C.A.A.’s hoary rationale that amateurism is the sine qua non of college sports. They eliminated Wilken’s $5,000 trust fund remedy on the grounds that paying cash compensation not related to education would not “preserve amateurism.” (They allowed the cost of attendance payments, however.)
It took the court’s chief justice, Sidney Thomas, to expose the fallacy of the majority’s reasoning in a stinging dissent. “The N.C.A.A. insists that this multibillion dollar industry would be lost if the teenagers and young adults who play for these college teams earn one dollar above their cost of school attendance,” he wrote. “That is a difficult argument to swallow.”
It’s not hard to understand why the courts, even now, won’t propose the obvious remedy that their antitrust rulings would seem to require: allowing the players to be paid. Decades of propaganda about the centrality of amateurism have had an effect.
But these decision makers also clearly fear that college sports will be thrown into chaos if schools can pay players — and they don’t want to be blamed. The labor board practically said as much. Of course that is also what baseball owners once said about the prospect of free agency, and Olympic officials about allowing in professional athletes. Those fears turned out to be unfounded. The same will be true if college players are paid.
On Thursday, Wilken held a hearing in another case against the N.C.A.A., called the Jenkins case. That case is intended to take the N.C.A.A.’s antitrust violations to their logical conclusion; the lawyer leading it, Jeffrey Kessler, wants to see all N.C.A.A. wage restraints abolished.
At one point during the hearing, Wilken said that the Ninth Circuit’s O’Bannon ruling won’t necessarily have any effect on the Jenkins case. We’ll find out soon enough whether she means it.