I had previously written about the NLRB’s recent decision finding that members of Northwestern University’s football team were employees for the purposes of forming a union. Today Courthouse News reports on a judge’s decision in another athletes vs. NCAA case that has implications for non-revenue sports like track and cross country.
Very briefly, the O’Bannon case deals not with unionization, but puts forward the argument that the NCAA is violating antitrust laws in denying players a share of the revenue earned from using their likenesses in game footage or video games. The plaintiffs (including former UCLA basketball star Ed O’Bannon and NBA legend Oscar Robertson) argue that the NCAA cannot defend its practices on the basis that football and basketball programs allow the member schools to support non-revenue sports for women and men. After an analysis of the legal standard and other antitrust issues, Judge Claudia Wilken wrote of the NCAA’s defense:
To the extent that the NCAA contends that supporting women’s sports and less prominent men’s sports serves a broader social purpose — beyond merely increasing output in those markets — this justification is precluded for reasons outlined in the previous section of this order.
In other words, a “social justification” will not save what is otherwise held to be a restraint of trade.
Besides that, however, Judge Wilken went on to say that “the NCAA could provide support for women’s sports and less prominent men’s sports through less restrictive means.” One solution, according to the opinion, would be for the NCAA to “mandate that Division I schools and conferences redirect a greater portion of the licensing revenue generated by football and basketball to these other sports.” As I pointed out in my previous post, redistribution of revenues to keep sports other than men’s football and basketball afloat is probably going to be a tough sell in a world where college athletes are unionized. While Judge Wilken is probably correct that mandating redistribution of revenues is another option, such a solution seems somewhat unlikely to be put into practice in the real world of college sports.
While the opinion here more or less admits that revenue from football and basketball keeps sports like cross country and track afloat, the practical effect of the opinion on those sports (assuming the plaintiffs win at trial this June) could be detrimental if not utterly devastating. Again, this and the Northwestern case are still in preliminary stages, but the downstream effects they could have on college runners are too important to ignore.
A pdf of the ruling itself is here