The last time we checked in on the Ed O’Bannon/Sam Keller class action lawsuit against the NCAA -- which has the potential to eventually uproot the NCAA’s amatuerism model once and for all -- a magistrate judge in California had quietly made a rather important ruling: The NCAA would be forced to turn over its TV licensing revenue documents to the plaintiffs.
This was a major step forward for the plaintiffs in the case. Jon T. King, one of the Hausfield LLP attorneys arguing the antitrust complaint on behalf of the players, said those documents were the “best source to document to the penny” how the large pool of money from local and national TV broadcasts, Internet streams, and radio coverage -- not to mention the licensing fees paid by Electronic Arts, a co-defendant in the combined lawsuit -- sloshes between the NCAA and its members conferences schools. King’s team of attorneys were already scouring through these documents, and ESPN legal analyst Lester Munson told me they were going to be looking at “financial data that no one has ever seen, outside of the NCAA, at any time.”
The promise, then, was that as these documents became unsealed to the public, you, me, and everyone else who loves college sports was going to see the innards of the NCAA’s books for the first time.
Thus far, that hasn’t happened. Instead, we’ve got something arguably more interesting.
On Tuesday night, Tom Farrey of "Outside the Lines" reported unsealed documents show an internal “philosophical divide” on the topic of amateurism, which emerges in emails exchanged between university leaders and conference commissioners. While the NCAA has always presented a united public front on the matter, University of Nebraska chancellor Harvey Perlman, a law professor who specializes in intellectual property law, expressed concern to former Big 12 commissioner Dan Beebe:
“This whole area of name and likeness and the NCAA is a disaster leading to catastrophe as far as I can tell,” wrote Perlman, a former member of the NCAA Board of Directors and law professor specializing in intellectual property. “I’m still trying to figure out by what authority the NCAA licenses these rights to the game makers and others. I looked at what our student athletes sign by way of waiver and it doesn’t come close.”
Boldface emphasis mine. Here is the waiver Perlman refers to. It is merely one component of the case the plaintiffs are making against the NCAA: That not only is the NCAA violating antitrust laws by fixing at zero the money college athletes can earn for their performances, but that the very basis on which the NCAA is collecting and maintaining those licensing rights doesn’t hold legal muster. Now we can see that members of the NCAA, including a former member of the board of directors and a law professor, agrees. It’s just one man's opinion, sure, but it's one man in an NCAA leadership position, who just so happens to be arguing exactly the same thing as the plaintiffs in the antitrust case. It's damning stuff.
As Tom reports, Perlman’s email sparked a response from University of Texas administrator Chris Plonsky:
Objecting strongly to Perlman was Chris Plonsky, a longtime University of Texas administrator who oversees women’s sports for the Longhorns. She wrote that athletes “voluntarily” sign the standard release waiver that is required for participation in NCAA sports.
“We’re like a version of the Army,” Plonsky wrote. “We have certain things we have to do a certain way to raise funds and pay for the scholarships and other things s-a’s (student-athletes) and their parents expect.”
The plaintiffs no doubt want the judges to see why this argument is spurious: Because signing the NCAA’s waiver is a prerequisite to competition. And every athlete signs it.
Other emails discovered by Farrey reveal that NCAA senior policy adviser Wallace Renfro raised the possibility of retiring the term “student-athlete,” arguing to NCAA president Mark Emmert that “maybe … we just refer to them as students instead.” He also proposed a fundamental rethinking of the NCAA’s amateurism model, the likes of which many have been publicly promoting for years:
“We have always had a cradle-to-grave approach to amateurism,” Renfro wrote. “You are born an amateur, but like innocence once lost, it cannot be regained. But our commitment to amateurism and the commitment of our public’s has often been based on something other than how we define amateurism in our own constitution. In the most romantic sense we think of amateurism as playing sports for the love of the game, for the camaraderie among competitors, for the pride of victory for school or colors, and then we use this romanticized sense of amateurism to define the entire enterprise of collegiate athletics.”
Tom’s story continues with discussion of the Electronic Arts and Collegiate Licensing Corporation (the NCAA's licensing arm) side of the combined complaint, which is a whole separate legal argument: EA's lawyers are making an artistic license defense, with a host of implications for the way the entertainment industry allows likenesses to be used and manipulated. The lawyer for the plaintiff, Leonard Aragon, told me the defense was arguing two things: 1) That it wasn't using player likenesses (details in Tom's story seem to contradict that), and 2) that even if it was, it had a First Amendment right to do so. That case, to my neophyte legal brain, is arguably more fascinating than O'Bannon's.
Anyway, go read the rest of Tom's story. There will be more where this came from -- more emails, more financial disclosures, more knowledge about the inner-workings of the NCAA -- as the case progresses. As this process unfurls, as more documents are made public, the public scrutiny of an already-embattled NCAA seems destined to increase. The critical voices will only grow louder.
The NCAA officially has its back against a wall. And this thing is just getting started.