March 10, 2019
Friday evening, Judge Claudia Wilken issued a long-awaited ruling in the Alston anti-trust amateurism case, officially known as In re: National Collegiate Athletic Association Grant-In-Aid Cap Antitrust Litigation in the Northern District of California.
While judgment was entered in favor of the plaintiffs, the victory rings hollow. Note the limiting nature of her opinion, despite for a second time, the first being O’Bannon, she found the NCAA’s practices to be a violation of antitrust law:
She recognized the inequity of compensation for the young athletes who’ve built “the extraordinary revenue” of college football and basketball. She also recognized that “they limit their educational options, and they risk their long-term health to create enormous financial value for Defendants.”
In O’Bannon she found the NCAA to be in violation of the Sherman Antitrust Act and ruled that the NCAA could not market the images and likenesses of college athletes to EA, thus ending the college sports edition of the popular Madden video games. Madden was more than willing to compensate the athletes, but NCAA amateurism prohibits college athletes from profiting from their own image in a way that no other segment of the population is restricted.
Here she again found, the NCAA, again in violation of antitrust law
Having dismissed most of the NCAA’s arguments through summary judgment, she examined the two remaining arguments the defendants used to justify their lawless exploitation of students. One was integration with the student body which she seemed to see through immediately, leaving the only remaining factor “consumer demand for amateurism.”
Judge Wilken seemed to understand the arbitrary and ever-changing definitions of “amateurism” according to the NCAA in stating, “The only thing that can be inferred is that compensation constitutes “pay for play” or “pay” if the NCAA has decided to forbid it, and compensation is not “pay for play” or “pay” if the NCAA has decided to permit it.” (emphasis mine)
She acknowledges the gradual changes such as permitting athletes to have access to sufficient food, and eventually permitting athletes to receive full cost of attendance did not impact the demand for college sports.
One might recall a similar argument was once made for slavery.
Judge Wilken agreed with Dr. Rascher’s conclusions that “revenues, which are an indicator of demand, at the NCAA, conference, and school levels have increased since 2015, when class members’ permissible compensation increased significantly as a result of the change to the grant-in-aid limit that year.”
Just when it seemed that she realized the shallowness of the NCAA’s argument regarding the purported preference of fans for amateur competition, she stopped short.
While agreeing with the plaintiffs’ economics studies, and deriding defendants reliance on speculation, she backtracks on what to this point has been a strong condemnation of amateurism and instead of declaring it an illegal practice, she orders that benefits must be tethered to education in order to preserve the “distinction between college sports and professional sports.”
The impeccable Michael McCann quickly offered three excellent articles detailing the legal aspects of the case.
1. Why the NCAA lost–but in a limited way–the Alston case: https://t.co/TpiDhD0FUC
2. What the ruling means for the NCAA and conferences: https://t.co/Rqv7hGPf1B
— Michael McCann (@McCannSportsLaw) March 9, 2019
In the second article, McCann explains a possible reason for Judge Wilken’s conservative ruling that tethered compensation to educational pursuits.
Judge Wilken was bound by the Ninth Circuit’s 2015 ruling in Ed O’Bannon v. NCAA. While the Ninth Circuit upheld O’Bannon’s victory, which Judge Wilken had authored, the appellate court modified the accompanying remedy and stressed that college athletes are not professional athletes.
In his O’Bannon opinion, Ninth Circuit Judge Jay Bybee rejected Judge Wilken’s remedy that colleges were obligated to pay men’s basketball and football players up to $5,000 per year while they are in school for the use of their names, images and likenesses. Payment under this plan would occur after the players graduate. Judge Bybee, however, concluded that Judge Wilken “clearly erred in finding it a viable alternative to allow students to receive [name, image and likeness] cash payments untethered to their education expenses.” He argued that cash payments to college athletes, at least in the manner contemplated by Judge Wilken, would be “untethered to educational expenses.” These payments, Judge Bybee reasoned, would constitute “a quantum leap” for amateurism.
In her grant-in-aid cap ruling, Judge Wilken adhered to Judge Bybee’s logic in ruling that permissible scholarship caps must be related to education. Still, she stressed that the NCAA and its members (as opposed to colleges or conferences acting without anti-competitive coordination) had failed to prove that capping athletic scholarships to a fixed amount prevents the so-called “quantum leap” Judge Bybee feared. Instead, Judge Wilken reasoned that no such leap would occur so long as scholarships and related payments to college athletes are tethered to educational expenses.
She was likely correct in assuming that the Ninth Circuit would not allow a ruling that dismantled the boundaries between professional and amateur sports; if so, her reluctance to strike down an anticompetitive association that exploits certain groups of athletes, points to a larger problem, which I’ll address in a bit.
While Judge Wilken did place the limits or lack thereof on education related compensation in the hands of the conferences, which at least was a step in the right direction, she unfortunately left definitions of educational benefits under the auspices of the NCAA instead of stripping it of its authority.
While it’s true that students would certainly benefit from some of the educational benefits that Judge Wilken mentioned in her order, such as laptop computers, and scholarships for graduate degrees or vocational training, the NCAA will in all probability try to limit benefits to students to the highest degree they feel would not land them in violation of the court’s directive. Athletes weren’t empowered with the ability to hire agents that would help them navigate their options and pursue the most meaningful benefits for their own goals.
It wasn’t so long ago that NCAA deemed college athletes unworthy of having cream cheese atop their bagels, which even without the cream cheese were at one time considered a luxury, and impermissible benefit.
The NCAA Should Be Abolished
The NCAA was initially formed to insure and regulate safety for college athletes, but it has abandoned its original purpose offering only empty lip service. It coined the term “student athlete” in order to prevent athletes from claiming employee status and filing workers’ compensation claims for injuries sustained while representing their schools. Often the educations college athletes receive are depreciated because of debilitating life-long injuries that prevent the athletes from putting their coveted degrees to use.
Hundreds of lawsuits have been filed alleging deceit regarding concussions and sub concussive brain injury, and failure to properly care for athletes who have been subjected to brain damage. To this, the NCAA pleads “no duty of care.” A recent Bloomberg article by Steven Sellers paints a troubling portrait of the association’s abdication of its duties.
According to the article, more than 369 cases, most of which represent multiple players have now been consolidated encompassing over 300,000 former college athletes seeing redress for brain injury. One of the plaintiffs, is Jonathan Moravec, who is 32 years old and can’t remember his son’s name.
“I wish I would have known that you wouldn’t see this injury, that it would affect the remainder of your life, and that you can’t un-change it,” said Moravec, who suffers from near-daily seizures.
Unlike his counterparts who made it to the National Football League, Moravec has no union contract, workers’ compensation benefits, or settlement funds to help him cope with degenerative brain illnesses.
Lawyers for the former players draw a contrast between the lost earnings potential of disabled athletes like Moravec, who had to quit his job with Geico Insurance because of headaches, blackouts, and memory problems, with the NCAA, universities, and powerhouse athletic conferences that are profiting from the players’ efforts on the football field.
They claimed lost earnings by student-athletes who have a degree but are unable to work because of their football-related cognitive illnesses could last a lifetime, without the economic backstop enjoyed by NFL players who earned big paychecks during their careers.
In addition to brain injury, many former college athletes who never made it to the pros suffer from orthopedic injuries that will plague them for life, with no help from the NCAA or its member schools in providing medical treatment that will keep them employable in some cases, and prevent bankruptcy in others when the former athlete’s salary can’t keep pace with his medical bills.
If this weren’t enough, tortuous strength and conditioning exercises in some college football programs have cost at least 30 players their lives since 2000. Jordan McNair’s tragic and completely preventable death last year revealed a toxic environment in the Maryland locker room in which players were ridiculed and pushed to their physical and mental limits. Like Maryland, reports have shown that the other locker rooms often use brutal regimens to weed out players the coach would like to purge and replace, and enforce a kind of caste system for favored athletes while those who are merely seeking favor are treated worse than incarcerated criminals.
The Forest and the Trees
When one looks to the courts for understanding as to why this is allowed to continue, a closer examination reveals that the courts’ handing of amateurism is only one tree growing in a vast forest of inequities.
Lawmakers have consistently, over the last several decades enacted laws that make it more difficult to sue powerful defendants. This is probably because powerful corporate defendants frequently reward lawmakers for taking a pro-business or pro-management stance that is almost always detrimental to workers, consumers, and in this case, workers who haven’t even been able to obtain a classification as workers. Unfortunately, judicial holdings in Twombly and Iqbal have reinforced this.
Historical Basketball League CEO Ricky Volante, writes:
“We feel that this ruling is poorly reasoned because it prioritizes the powerful over the vulnerable, the privilege of wealth over the rights of the poor.” This has been the effect of the heightened pleading standards, pro-management laws, and the predominance of pro-management judiciary.”
Volante notes the four paths available for dismantling an economic cartel such as the NCAA: (1) litigation, (2) legislation, (3) unionization/organization, or (4) competition. He then points out that the small and slow improvements for college athletes that have been brought about through litigation have taken 13 years, and we’re still not there.
He looks at proposed legislation that could liberate college athletes but recalls that similar legislation proposed in the past was defeated because of massive lobbying efforts, and concludes, “you can be sure the NCAA will be sending their lobbyists to Sacramento, Annapolis, Raleigh, and DC to try and kill these efforts as well.” He notes that unionization attempts have been blocked, sometimes through laws made at the state level.
The HBL hopes to liberate college basketball players through the fourth prong of competition. When the HBL tips off its inaugural season, players will receive both scholarships and salaries. Additional competition may come through new changes in the NBA’s G-League and the new spring league professional football organizations that are now cropping up. Only time will tell if they will be able to damage the cartel to a great enough degree to force them to a more even playing field.
Many, if not most college football and basketball players come from modest means, and some, from abject poverty. The athletes generating revenue for mostly white coaches, and administrators are predominately African American. They ply their craft before a largely white audience that seems to have little objection to the exploitation of poor people and people of color, as the non-revenue generating sports tend to be populated by primarily white, and upper middle class athletes who derive their scholarships off the backs of those less privileged. This is the challenge that must be overcome and countered.
While unrelated in one sense, but relevant in another, Ken White’s recent article in the Atlantic, detailing the reasons why Paul Manafort received such a light sentence explains quite a bit. He writes:
Criticizing American criminal justice is fitting and proper. But there are two kinds of critiques—simplistic ones, which let the larger system off the hook, and complicated ones, which point out that many factors combined to get Manafort the dramatic break he enjoyed.
This is along the same line as my “forest and trees” analogy. White notes six elements in play regarding the Manafort sentencing:
First, there can’t be a sentence without an investigation. After 9/11, the United States Department of Justice and the U.S. Attorney’s Offices that it controls shifted resources and focus from white-collar crime to drugs, guns, and immigration…. America picks who goes to jail when it picks whom to investigate—which is one of the reasons so few people involved in the 2008 Wall Street debacle went to jail.
Second, prosecutors have enormous power over who goes to jail and for how long. That power doesn’t just involve deciding who gets indicted. It involves deciding how he gets indicted…. Prosecutors are more inclined to wield that power to benefit people like Manafort, not people charged with crimes involving drugs, blue-collar property crimes, and violence.
Third, Congress has given Ellis the power to give people like Manafort a break, but has denied him that power when the defendant is accused of many blue-collar crimes. Last year, Ellis sentenced a 37-year-old man named Frederick Turner to 40 years in federal prison for methamphetamine distribution. He had no choice: Congress passed laws making 40 years the mandatory minimum sentence.
Fourth, the U.S. sentencing guidelines treat some crimes more harshly than others, and though, unlike mandatory minimums, they are only recommendations, not strictures, they strongly influence judge.
Fifth, money drives cases. Manafort’s criminal defense cost more than most defendants make in a lifetime. Money can’t buy freedom—Manafort’s money couldn’t save him from multiple convictions, because the federal government’s power is overwhelming even to a multimillionaire. But money buys a capable defense with the resources it needs. An extremely experienced, qualified defense team with plenty of time makes a profound difference at every stage of a case. Even when rich people get convicted, money helps get them the best plea deals, the most persuasive sentencing presentations, and often the most lenient sentences.
Sixth, and finally, judges are human. Racism and bias of every sort play a role in the system, but it’s too simplistic to say the problem is that particular judges are racist. The problem is that judges give breaks to people with whom they can identify—people whose humanity they recognize. We’re wired to identify with people like us. Judges—particularly federal judges—tend to come from backgrounds closer to Manafort’s than to the average drug dealer’s.
He concludes, “The system isn’t broken because Manafort got four years rather than the 19-year recommendation that the sentencing guidelines spat out. The system is broken because other people get the long sentence—because other poorer and often darker people don’t get the same chances. It’s broken at every level, in obvious and obscure ways. Blaming the injustice on a single judge, like Ellis, is an oversimplified evasion of the problem.” (emphasis mine)
While the Manafort case is a criminal proceeding and the NCAA case is a civil one, there are more parallels than we might care to admit, beginning with point number 6.
Judges often tend to identify with business interest more so than lowly plaintiffs. Just as White points out in Manafort’s case, the wealthier the party, the more legal leverage he will have. Civil plaintiffs rarely have the financial resources to outlast their vastly wealthier opponents. In this sense, it’s somewhat remarkable that so many NCAA cases have made it to trial, since only about 10% of civil cases manage to get to that point.
Unfortunately, the playing field isn’t even. As seen in the NFL Concussion Settlement, and in the proposed NHL settlement, plaintiffs can be maneuvered into inadequate settlements because they lack the leverage the defendants enjoy. Unless a settlement is reached, most lawsuits stand a very high risk of being tossed on procedural grounds. FRCP Rule 12(b)(6), “failure to state a claim upon which relief can be granted” has killed many a meritorious lawsuit in its infancy. Defendants have found ways to leverage numerous procedural advantages over plaintiffs who are increasingly asked to plead with such particularity without benefit of discovery that their claims are ruled as speculative and never progress far enough to obtain the discovery that might prove their case.
University of Connecticut Law Professor Alexandra Lahav notes in her book, In Praise of Litigation:
If the same rights secured by litigation were to be eliminated directly, by legislative or court action, such attempt would meet with great opposition. Yet procedural limitations are little noticed or discussed, even when they profoundly diminish people’s ability to enforce rights they rely on and care about. Perhaps this is why instead of explicitly limiting individual rights, legislatures and courts have made changes to procedure that reduce our ability to enforce those rights—a tactic largely invisible to most. These procedural changes happened gradually, often with the justification of reducing the costs of the court system or making that system more beneficial to certain classes of litigants.
The “certain classes of litigants” she speaks of are almost always the wealthy and powerful who have the ability to lobby for ways to insure they remain wealthy and powerful.
Professor Lahav also notes that these procedural changes happen gradually and largely invisible to most people; therefore they are rarely discussed. It’s much easier to call a judge “crooked” or “unfair” than to admit that they are a product of the system we’ve allowed to flourish, by merely turning our backs and allowing it to thrive without adequate resistance. Failure to acknowledge this only makes it harder for the cases, causes and people we care about to prevail.
Our world is increasingly interconnected and just as flaws in the criminal justice system tend to parallel flaws in civil justice remedies can be borrowed from one to the other.
Ronn Blitzer of Law and Crime declared in a recent article that Stormy Daniels won her case and it’s because of Michael Avenatti. “There is no question that Ms. Daniels prevailed,” Avenatti told Blitzer, “And there is also no question it was due to her fortitude and our strategy, especially our media approach.”
Blitzer points out the obvious—that typically a porn actress would be in no position to take on the president of the United States, but due to Avenatti’s ability and willingness to harness the power of media, Daniels managed to put the political world on notice. “[Avenatti] knew that this case wasn’t going to be won in the courtroom, so he took it to the airwaves,” Blitzer writes. His strategy forced opponents into the open where they contradicted themselves, and in doing so, created an unlikely heroine in Stephanie Clifford, a porn actress better known as Stormy Daniels—a lady who has exposed campaign fraud and much more because she and her chosen counsel were not afraid to harness the power of the press.
I don’t believe the NFL would have settled the concussion case had it not been for athletes speaking out about brain injury, and widows allowing the stories of their husbands to be told—men like Mike Webster, and Junior Seau, who resonated with fans and turned the tide of public opinion against the NFL. Since the NFL recovered its PR footing by settling and making an appearance of addressing the problems they’re now going scorched earth against dementia claims, mostly shielded on a shadow docket that isn’t available to the public or the press. I feel it will take a concerted effort on the part of the retired NFL community, in once again harnessing media to their advantage to force the NFL to back down in its war on dementia claims. Motions will only go so far in a court that is prepared to defend its processes and Lead Counsel who wishes to shield the defects in the settlement he negotiated. Often two courts are needed to prevail–the actual judiciary and the court of public opinion.
While college athletes have many advocates going to bat for them, I feel not only past athletes, but current ones need to stand in unity, to demand what they are earning. The press will pay attention. And if they can find a way to compel the public to their cause, the legislative and judicial powers will have little choice but to uphold the will of the people.
We’re starting to see resistance in athletes who refuse to participate in Bowl games. We saw changes at the University of Maryland when players and students expressed outrage when the board of regents failed to address their concerns and tried to reinstate the coach who was at least partially responsible for Jordan McNair’s tragic and needless death.
Most recently, Texas quarterback Sam Ehlinger expressed his views on his unpaid internship.
Texas QB sounds off ‘unpaid internship’ of college football – KXAN https://t.co/XYAUaT9DzW
— Ted Tatos (@TedTatos) March 10, 2019
Hopefully others will join him because they are capable of moving the needle. Without athletes, sports do not exist. I hope this happens.
Unfortunately this is not the only tree in the forest that need to fall. The disease manifested here is the same one that affects multiple trees of material and social injustice. Most of Judge Wilken’s opinion echoed the arguments of the plaintiffs. She acknowledged that antitrust law had been broken—in two separate rulings. I think it’s likely that she would have preferred to liberate the students but felt constrained by a system that is largely designed to uphold institutions over individuals. In all probability she knew that she risked the limited relief that she granted had she pushed the boundaries without sufficient support. Until these boundaries are challenged and changed, the forest of malfeasance will not be purged of the trees that prevent the sunlight of justice from filtering through.
Clearing the forest isn’t an easy task, but then again, little that is worthwhile comes easily. If we are diligent, however, the task can be accomplished.