“What makes it right to pay a football player more money when someone else’s passion — say on the fencing team — is equal to that of theirs?” he said.
The lawsuit is currently in the U.S. Court of Appeals for the 9th Circuit. The NCAA filed its opening brief last month and, in a joint motion, both parties requested for oral arguments to be heard as early as April 2015.
U.S. District Judge Claudia Wilken’s lower court ruling permitted the future establishment of trust funds to compensate men’s basketball and football players for the use of their name, image or likeness. The ruling, which is being appealed by the NCAA, would not affect NCAA bylaws until Aug. 1, 2015 and only applies to colleges and universities within the U.S. District Court for the Northern District of California.
“Attempts by (O’Bannon’s lawyers) and the district court to untether college athletics from the academic experience cut to the core of the student-athlete experience,” said NCAA Chief Legal Officer Donald Remy in a statement.
If the ruling is upheld, some critics fear schools would shift universities’ limited funds and scholarships from non-revenue sports, including all women’s sports, to revenue sports.
O’Bannon, a former UCLA men’s basketball player, first sued the NCAA in 2009 for the use of his character in EA Sports video games, on behalf of all men’s basketball and football players in NCAA Division I schools. His lawsuit argued former student-athletes should be paid when the NCAA uses their name, image or likeness for commercial purposes after graduation.
Michael Hausfeld, one of the lawyers who represented O’Bannon, said the August ?ruling unmasked the hypocrisy behind the NCAA’s claim that student-athletes are students first.
“I think (administrators) need to wake up to the fact they’re complacent in this hypocrisy, and they should start being concerned about their own accountability for the failures of the system to educate the athletes and to provide them the benefits that they want by reason of the value that they bring to their athletic fields,” he said.
Hausfeld pointed to the Wainstein report, which detailed how UNC student-athletes used fake classes to boost their grade point averages and maintain academic eligibility, as evidence that further undermines the NCAA’s claims.
Barbara Osborne, who teaches sports law at UNC, said legal arguments in the O’Bannon case focused on provisions of the Sherman Anti-Trust Act, originally enacted to protect consumers from unfair business practice.
Junior football player Shakeel Rashad said getting paid naturally appeals to twenty-year-old college students, but he’s not sure where he stands on whether some, all or no student-athletes should get paid.
“From what I understand, (football and men’s basketball) are the two sports that generate a lot of money,” he said. “At the same time, the Olympic sports are having the same time restrictions. I think (paying only revenue sport athletes) would get pretty touchy.”
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Chaniel Nelson, a redshirt senior women’s volleyball player, said she thinks it’s an honor to play on scholarship.
“But I do understand when it comes to revenue sports how they feel they might have a right to certain things,” she said.
If the NCAA loses the appeal, Osborne said it would be interesting to see if the NCAA changes its policy to affect all schools nationwide, not just those in the 9th Circuit. A ruling by the 9th Circuit would be precedent in nine U.S. states and Guam, potentially affecting powerhouse sports programs like those at the University of Southern California and the University of Oregon.
Chris Kennedy, senior deputy director of athletics at Duke University, said he has never seen such a period of uncertainty about the future of college athletics.
“I’ve been involved with college athletics since 1967, since I was a student-athlete myself,” he said. “I’ve never been in a position where if you asked me what will college athletics will look like in two years, I could be less certain to what my answer will be.”
If the August ruling in the case is upheld, athletic scholarships at schools in the court’s jurisdiction would increase to cover an athlete’s full cost of attendance, which is defined as tuition, room and board, books, food, supplies and transportation.
Covering the full cost of attendance in all athletic scholarships would cost UNC an additional $1.7 million to preserve the same number of scholarships offered, said Athletic Director Bubba Cunningham in a presentation to the Faculty Athletics Committee earlier this year.
Implications of the O’Bannon lawsuit are a national conversation, said UNC associate athletic director Paul Pogge.
“With a ruling like this that potentially requires resources to be funneled in the direction of a very small number of sports, we are committed to trying to find ways to best support our many varsity programs,” he said. “But this certainly makes it more challenging for colleges across the country to do that.”
“We still have a long way to go in figuring out what (the ruling) means in the day-to-day operation of the athletics department and how that applies in specific contexts such as Title IX,” Pogge said. “But at the end of the day the goal remains the same. We need to be equitable, and we need to be constantly focused on providing opportunities.”