Did the NCAA Cause Itself Future Problems by Making the Right Decision?
After he led the LSU Tigers to a win over the South Carolina Gamecocks on October 10th Sophomore running back Leonard Fournette announced something on live television that most likely made the NCAA cringe. Fournette stated that he wished to auction his game-worn jersey and have the proceeds donated to those residents of South Carolina who were victims of destructive flooding caused by historic rainfall.1 Many rightfully applauded this tremendously generous gesture. The few who didn’t were probably NCAA employees who were too busy scrambling to make the common sense, yet critical, decision to allow this auction to occur.
The difficulty of this decision could be traced to the NCAA’s repeated claim that college players’ names, likenesses, and image have no individual value. This is exemplified by the fact that college jerseys have been sold by the NCAA and universities with no player’s name on the back.2 This results in someone buying an LSU jersey with the #7, Fournette’s number, but the NCAA claiming that the person is not buying a Leonard Fournette jersey. They are simply buying a #7 LSU jersey despite the high probability that the purchaser bought the jersey because Leonard Fournette is currently the Heisman Trophy frontrunner. This has recently become less egregious as the NCAA stopped directly selling jerseys because it was discovered that they were utilizing a search bar on their website that allowed users to find the jerseys of particular players by simply typing in those players’ names.3 The universities are currently following suit by selling less jerseys that have the numbers of their most prominent players.4 The NCAA again reinforced this zero value belief in a recent trial when it made the argument that broadcasters “pay not for the rights to show games, but for exclusive access to broadcast in stadiums and arenas.”5 Further, it has been common practice for many universities and the NCAA to make athletes waive their publicity rights.6
This zero value concept is merely one of the many that comprises the NCAA’s stance that college players are amateurs who are not entitled to compensation from revenue that is generated through their actions. However, the NCAA’s decision to allow someone to presently purchase a LSU jersey with the name “Fournette” on the back is bound to create some wonder of what the future holds. This is particularly true in light of the litigation that has and will be resolved in the years to come.
On September 30th of this year, the Ninth Circuit upheld a district court’s decision in Edward O’Bannon, Jr. v. NCAA, holding that the NCAA’s amateurism rules violate antitrust laws.7 This case focused on the NCAA using O’Bannon’s name and image in TV broadcasts and video games. Ultimately, it was affirmed that the NCAA rules “were an unlawful restraint of trade.”8 However, the Ninth Circuit found that a proper remedy for this is the NCAA allowing universities to give scholarships covering the full cost of attendance.9 The court also eliminated the district court’s decision to allow NCAA athletes to receive a “deferred compensation” of up to $5,000 per year.10
This decision has been met by mixed reactions. Some are calling it a solidification of college athletes as amateurs while others are seeing it as a basis that further cases can build on.11 One such developing case is being spearheaded by the man who just defeated the Roger Goodell and the NFL in federal court, Jeffrey Kessler. This class-action suit seeks to eliminate NCAA rules that bar top-tier football and Division I men’s basketball players from receiving compensation beyond their scholarships.12
With all of this information in mind, it’s interesting to think about how much longer the NCAA will be able to maintain its amateurism argument. To add to the mix, the auction for Leonard Fournette’s game-worn jersey started at 8 a.m. ET Saturday November 7th and will end Monday November 9th at noon ET.13 The opening bid for the jersey plus a game used South Carolina helmet signed by their now retired coach Steve Spurrier, and LSU Coach Les Miles autographed LSU helmet was $7,000.14 This auction proves that there are good people, like Leonard Fournette, who are willing to help others in need. But it also proves that Fournette, with his image, name, and likeness, has a value that does and will continue to produce profits. It may be time for the NCAA to concede that point and prepare for the long road ahead.
*Update Nov. 9, 2015 1:00 PM EST:
Leonard Fournett’s jersey from the South Carolina game closed with a final bid of $101,000, according to a tweet from LSU.
Leonard Fournette’s jersey auction ends at a $101,000 bid. All money goes to South Carolina relief efforts. Awesome. pic.twitter.com/8KaXaJWuTL
— The LSU Logo (@LSU_Logo) November 9, 2015
David Ching, LSU’s Leonard Fournette to Auction Jersey as Benefit to Flood Victims, ESPN (Oct. 11, 2015), http://espn.go.com/college-football/story/_/id/13856677/leonard-fournette-lsu-tigers-auction-jersey-south-carolina-flood-relief-effort [http://perma.cc/95ZK-UB5B].↩
See Marc Tracy, Days of Selling Popular College Players’ Jerseys Seem Numbered, The New York Times, http://www.nytimes.com/2015/08/06/sports/ncaafootball/days-of-selling-popular-college-players-jerseys-seem-numbered.html [http://perma.cc/MF5V-VFQ6] (Stating that “the N.C.A.A. has indicated, and individual presidents and athletic directors have indicated, that the value emanates from university and conference, not from individual students”).↩
Andy Staples, Online Jersey Sales Highlight NCAA’s Hypocrisy on Amateurism, Sports Illustrated (Aug. 7, 2013), http://www.si.com/college-football/2013/08/07/jersey-ncaa-sales-manziel-clowney [http://perma.cc/QG2V-YHNB].↩
Tracy, supra note 2.↩
Jon Solomon, Ed O’Bannon Trial Suggests TV Contract Rights for College Players, CBS Sports (June 12, 2014), http://mweb.cbssports.com/ncaaf/writer/jon-solomon/24586549/ed-obannon-trial-suggests-tv-contract-rights-for-college-players [http://perma.cc/W9G7-8PH8].↩
John Keilman & Jared S. Hopkins, College Athletes Routinely Sign Away Rights to be Paid for Names, Images, Chicago Tribune (Mar. 25, 2015), http://www.chicagotribune.com/sports/college/ct-ncaa-waivers-met-20150326-story.html [http://perma.cc/ZPF3-L4PU].↩
David Ridpath, The NCAA Violates Antitrust Law, Forbes (Sept. 30, 2015), http://www.forbes.com/sites/bdavidridpath/2015/09/30/this-just-in-the-ncaa-violates-anti-trust-law/.↩
Edward C. O’Bannon v. NCAA, No. 14-16601, slip op. at 2 (9th Cir. Sept. 30, 2015).↩
Id. at 63.↩
Marc Tracy & Ben Strauss, Court Strikes Down Payments to College Athletes, The New York Times (Sept. 30, 2015), http://www.nytimes.com/2015/10/01/sports/obannon-ncaa-case-court-of-appeals-ruling.html?_r=0 [http://perma.cc/8KT6-EBZ6].↩
Marc Tracy, Case That Could Erode Amateur Model Takes a Small Step, The New York Times (Oct. 1, 2015), http://www.nytimes.com/2015/10/02/sports/case-that-could-erode-amateur-model-takes-a-small-step.html [http://perma.cc/YWE6-2ETW].↩
Chase Goodbread, Leonard Fournette Jersey to Hit Auction Block for S.C. Flood Relief, NFL (Nov. 4, 2015), http://www.nfl.com/news/story/0ap3000000572758/article/leonard-fournette-jersey-to-hit-auction-block-for-sc-flood-relief [http://perma.cc/S2NH-9S8A].↩