Sports today have a greater valence than ever. They touch on, and are in turn touched by, the movements for gay and disabled rights as well as the digital revolution. But as the real world turns its gaze more often to sports, even sports' hoariest institutions find themselves held to real-world standards—and by those measures the NCAA is repeatedly coming up short.
When civil rights historian Taylor Branch spends 19 pages in The Atlantic likening how you treat college athletes to the way plantation owners treated slaves, the comparison has a moral heft. When a columnist such as The New York Times's Joe Nocera applies to your actions all-American tests like economic freedom and due process, only to find you regularly wanting, that judgment has power too. When a sit-down with Frontline leaves your president, Mark Emmert, looking at interviewer Lowell Bergman as if he has spontaneously generated a third eyeball, we're seeing evidence of a yawning cultural divide—one where the NCAA has standing only in a universe of its own devising, a place full of "student-athletes" and "institutional control" and similar mumbo jumbo.
It's hard to think of a time in its history when the NCAA was more reviled and legally besieged. Former USC assistant football coach Todd McNair is suing the organization for defamation, citing what he calls "malicious" treatment of him in the Reggie Bush infractions case. Last month the NCAA admitted that it had suspended its probe into Miami football and basketball because of what Emmert called "a very severe issue of improper conduct" by the enforcement staff, which employed the lawyer of a booster under investigation to obtain information from a bankruptcy hearing. And while Pennsylvania governor Tom Corbett's suit in response to NCAA sanctions over the Jerry Sandusky case is the cheapest kind of political grandstanding, the zeal with which the NCAA rushed to hide strap Penn State smacks in hindsight of an organization saying relievedly to itself, "Finally, someone people find more odious than us!"
But the greatest legal threat to the NCAA is the class action suit filed by former UCLA forward Ed O'Bannon. Back in the late 2000s, watching a friend's child play an EA video game that featured the 1995 NCAA-title-winning Bruins, O'Bannon recognized his uniform number and distinctive lefthanded shot. He retained a lawyer who argues that the NCAA and its licensing partners violated antitrust law by confiscating and profiting from O'Bannon's image rights. The NCAA argues that because O'Bannon signed its Form 08--3a, the "Student-Athlete Statement," the college sports establishment may sell his image forever—even if O'Bannon as a UCLA freshman was a lawyerless adolescent with no real alternative. The case has been picking up plaintiffs, including Hall of Famers Bill Russell and Oscar Robertson, and O'Bannon's lawyers have successfully added current college athletes to the complaint.
The stakes are huge. For the right to use their images in video games, EA pays NFL players upward of $35 million a year. Last week U.S. District Court judge Claudia Wilken ruled that the litigation could proceed, marking the third time since 2009 that the NCAA had failed to get the case dismissed.
The latest ruling will increase pressure on the NCAA to settle and to do so on the plaintiffs' terms. Because awards in antitrust suits are typically trebled, the case could result in a payout of billions of dollars if it were to reach a jury. Moreover, the discovery process has already revealed the breathtaking value of the business the NCAA conducts with its broadcast, licensing and marketing partners, none of whom are happy to be divulging their trade secrets.
Today Ed O'Bannon sells cars in Las Vegas. No slur on Vegas car salesmen, but Bill Russell and Oscar Robertson bring to the litigation another dimension entirely. They're not joining the suit out of avarice, but for reasons of principle and, dare we say it, dignity. Or so it would seem to anyone not already inured to the NCAA's self-referential world—which is not the world in which you'll find Judge Wilken's courtroom.