The Times West Virginian


June 10, 2014

HERTZEL COLUMN: O’Bannon suit could change NCAA landscape

MORGANTOWN — It showed up out of nowhere, unexpectedly landing in what is today’s version of a mail box, this public correspondence from West Virginia Athletic Director Oliver Luck on the school’s athletic website, labeled “An Open Letter to Mountaineer Nation.”

It is a well-written, well-thought-out analysis of the Ed O’Bannon class action lawsuit against the NCAA, which challenges that group’s right to exclusively market the names, images and likenesses of Division I football and men’s basketball players.

With that said, its purpose is far less to inform than it is to deliver a warning, as evidenced by a pair of statements carried within the main text:

“This case has the potential to change fundamentally the 100-year-old relationship between student-athletes and their universities,” Luck writes at one point.

And then he closes his letter with this:

“My advice is to buckle up, Mountaineer fans, because the issues that will be resolved over the next few months, including O’Bannon, autonomy and full cost of attendance (players’ scholarships), very well may change the landscape in college athletics.”

The use of the term “buckle up” would indicate he expects a bumpy road fraught with danger should the NCAA lose the case.

Luck says this has the potential to be the most influential court case ever involving the NCAA, challenging the 1984 Oklahoma vs. the NCAA case, which stripped the NCAA from its right to market the television appearances of its member schools and instead turned that over to the conferences, which has led directly to the way it is marketed today with modern conferences working out deals with ESPN, Fox, ABC, NBC, CBS or even going so far as to create their own conference networks.

“One could argue,” writes Luck, “that this ‘strong conference’ arrangement led to the recent moves in realignment (including our move to the Big 12) and the ever-louder call for autonomy by the 65 schools in the so-called highly visible conferences — Pac 12, Big Ten, ACC, SEC and Big 12.”

This move toward a breakaway by the top schools seems to be favored by most of the power schools, including WVU, and appears to be the direction college sports is going to have to move in for the goals and the reach of the power conferences now differ greatly from those of their powerful brothers.

Without going so far as to predict a future growing out of O’Bannon prevailing in his case, Luck directs readers to a Sports Illustrated article by University of New Hampshire law school professor Michael McMann that clearly sums up the particulars of an O’Bannon victory.

• Student-athletes would remain students, not employees.

• Scholarships would still be capped as they are now.

• Few college players would become rich, even though they would have the right to sell their image or do commercials either locally as football coach Dana Holgorsen and basketball coach Bob Huggins now do or nationally as Alabama football coach Nick Saban or others do.

• The business of sports agents would change, perhaps even to the point of allowing college players to join the NFL and NBA players associations, groups that regulate the behavior of agents.

• A rise in participation in the Former College Athletes Association, could determine how much a former college athlete should be compensated for the use of his name and image.

• There is the potential for Title IX lawsuits, which seem inevitable if O’Bannon wins.

• College athletic budgets would shrink (the players taking a piece of the TV revenues that Luck refers to as “the mother’s milk for the conferences and their members” but without shrinking the money paid to the coaches because of the competitiveness of the market for their services).

• The NCAA would not disappear. It is not liable for damages in this suit and the service it performs in controlling fraudulent conduct by its members is vital.

Let us understand that a victory by O’Bannon, while it might change much about college athletics, would probably be more so in the non-revenue sports than football and basketball. In fact, if it leads to the power conferences breaking off on their own, that might be a good thing for, at least they will be able to be what they are without any pretenses.

If WVU doesn’t play William & Mary or Georgia State, does not football become better rather than worse? If your son or daughter can wear a WVU jersey that not only has the No. 5 on the back, but the name “White” for Pat White, does that make him or her that much happier?

In truth, players in these “gold mine” sports have been taken advantage of for years, going without compensation in a setting where a coach making $2 million to $6 million is given free use of a car is as utterly insane as a football or basketball coach making so much more than a professor turning out doctors and scientists rather than athletes.

Make no doubt, Luck is right. Change is in the air and, hopefully, the change will take the façade away from college sports and allow it to be what it is, not an arm of an academic institution but, instead, a world unto itself that is simply another business that should be run as such.

Follow Bob Hertzel on Twitter @bhertzel.

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