Officially, round two of O'Bannon vs. the NCAA will go down as a split decision.
In reality, it's a ruling that should have members of college sports' old guard puffing on victory cigars.
A federal appeals court dealt proponents of athletes' rights a significant blow Wednesday morning when it upheld the concept of amateurism in college athletics and ruled schools must only compensate scholarship athletes for the cost of attendance.
The three-judge panel backed federal judge Claudia Wilken's 2014 ruling that the NCAA "is not above antitrust laws" and has been "more restrictive than necessary to maintain its tradition of amateurism." However, the appeals court struck down Wilken's proposal that universities pay their athletes up to $5,000 apiece for the use of their names and likenesses.
Limiting the amount college athletes can be paid to the arbitrary figure of $5,000 was always a silly idea, but it's significant that the appeals court did not offer an alternative proposal for compensating athletes beyond their educational expenses.
The appeals court suggested that O'Bannon's attorneys did not prove that further compensation would not be harmful to the traditional college sports model, a difficult burden for them to meet. The ruling also went so far as to refer to paying athletes more than cost of attendance as a "quantum leap" that the appeals court was not ready to take.
"Once that line is crossed, we see no basis for returning to a rule of amateurism and no defined stopping point," the ruling read. "We have little doubt that plaintiffs will continue to challenge the arbitrary limit imposed by the district court until they have captured the full value of their NIL. At that point the NCAA will have surrendered its amateurism principles entirely and transitioned from its “particular brand of football” to minor league status."
What that passage means is that Ed O'Bannon's lawsuit against the NCAA has thus far only produced one significant change despite six years of legal wrangling and untold millions in legal fees. It has forced universities to stop hiding behind scholarship limits and offer athletes the full cost of attendance, a change the NCAA already approved earlier this year but likely would not have without legal pressure.
There's still a chance the O'Bannon lawsuit could lead to further change if either side appeals this decision to the Supreme Court, but for now the NCAA should be pleased with this outcome. The appeals court's decision was a setback for those pushing to blow up the current college sports model and a victory for the status quo.
"We have not completely reviewed the court’s 78-page decision, but we agree with the court that the injunction ‘allowing students to be paid cash compensation of up to $5,000 per year was erroneous,'" NCAA President Mark Emmert said in a statement following the court’s decision. "Since Aug. 1, the NCAA has allowed member schools to provide up to full cost of attendance; however, we disagree that it should be mandated by the courts."
The fight between O'Bannon and the college sports establishment began in 2009 when the former UCLA All-American sued the NCAA for using his name, image and likeness on TV broadcasts and in video games without payment. The lawsuit has since come to exemplify the broader debate over whether college athletes in revenue sports should receive more compensation than just their scholarships.
Despite significant nationwide momentum for change, the NCAA has achieved several victories this year that have allowed it to stem the tide and continue to cling to the notion of amateurism. One of the biggest prior to Wednesday came last month when the National Labor Relations Board overturned a regional director's previous decision that Northwestern's football players were employees with the right to unionize under federal labor law.
These victories aren't going to stop the push for athletes' rights, but they do serve as impediments to those pushing for change.
If there's a silver lining to Wednesday's ruling for college athletes, it's that the appeals court reaffirmed the idea that the NCAA merits further scrutiny and must comply with anti-trust laws. That has the potential to be damaging for the NCAA with so many challenges still on the horizon — most notably a lawsuit filed by the sports lawyer Jeffrey Kessler seeking to establish a free market for top college athletes.
But so far, 2015 has been a good year for those protecting the colle sports status quo. They've managed to delay inevitable change and ensure that the embattled notion of amateurism in college athletics survives a bit longer.
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