On March 17th, the Ninth Circuit Court of Appeals held oral arguments in the case of Ed O’Bannon v. NCAA. Should the Ninth Circuit decide to render a judgment on the merits of the case, the court could render the deathblow to the concept that amateurism means “No pay for play”. After listening to an hour and twenty minute long oral argument twice now, here’s what I know:
My main takeaway from the oral argument was that I genuinely expected the NCAA to have a stronger case. After Judge Wilken’s issued her injunction, the NCAA appeared to circle the wagons in preparation for this appeal. During oral argument, the Justices themselves appeared to be at least a bit more skeptical of the NCAA’s arguments. In turn, counsel for O’Bannon and the other plaintiffs did an artful job of making nuanced arguments while dodging the major potholes in their logic.
Counsel for the NCAA spent a lot of time directly attacking the ruling by Judge Wilken. The NCAA believes that Judge Wilken misapplied all three prongs of the law.
Prong 1: There is actual harm to competition due to the NCAA’s policies
The NCAA seems poised to lose on the first prong. The NCAA’s counsel seemed to talk himself into circles when trying to explain how a system that doesn’t allow colleges to pay fair market value for a player’s ability doesn’t create anticompetitive harms. The NCAA argued that because schools can compete with any number of other variables, such as team facilities and quality of education, that there was still competition among the schools.
From all appearances, O’Bannon’s counsel soundly defeated the NCAA’s argument that schools compete on other variables by pointing out two nuanced arguments. First, the advantages discussed by the NCAA were false because, for example, the cost of attendance or a grant of aid to attend LSU (20,000 per year) has significantly less monetary value than Tulane (60,000 per year). For those scholarships, however, schools can’t compete on price because the majority of those scholarships are full rides, which give them all a net value of zero. Secondly, the better athletes the school recruits, the better their athletic programs will perform. The better the school’s athletic program performs, the better their chance to have better variables.
Prong 2: If there is actual harm to competition, are their pro-competitive (amateurism) benefits that outweigh the harms to competition
The Justices spent much more time going over the second and third prongs. These relate back to each other in some nuanced ways. Mainly, how broad you define “amateurism.” The NCAA has a very simple notion of amateurism, which can simply be defined as “No pay for play”. O’Bannon and the other plaintiffs argue that amateurism has a broader definition that is concerned with the players motivation for playing the game.
Despite attacks which prove that the notion of “Student Athlete” is bologna, O’Bannon’s counsel seemed to cede the point that amateur athletics offers some pro-competitive advantages. Thus, the argument turned towards whether those benefits outweighed the anticompetitive harms. To measure the benefits of “amateurism”, it becomes vital to define what amateurism is and discover the scope of its advantages.
Again, the NCAA’s argument was fairly weak. The NCAA seemingly argued that Judge Wilken didn’t have the authority to redefine amateurism because the NCAA had better expertise, and the Supreme Court affirmed the NCAA’s stance on amateurism in NCAA v. Board of Regents of the University of Oklahoma.
O’Bannon’s counsel responded with a swath of evidence that appeared to sink the NCAA’s argument. First, he went on a tirade in which he mentioned that the NCAA had changed its own definition of amateurism numerous times since it was established in 1906. O’Bannon’s counsel pointed out that originally each college team was allowed to pay a maximum of three professionals. Then the NCAA reformed that policy to state that amateurism meant literally “No pay for play” i.e. no compensation whatsoever. Finally, that literal policy was reformed to allow compensation for student related functions i.e. scholarships. Hence, what “amateurism” means, even for the NCAA, is evolving and thus conforms more to the broader definition adopted by Judge Wilken. O’Bannon’s counsel also pointed out that the Supreme Court’s statements on amateurism in NCAA v. Board of Regents of the University of Oklahoma were dicta (fancy lawyer talk to say that it’s not the law; therefore, lower courts can choose to ignore it).
Prong 3: If there are pro-competitive benefits, are there “less restrictive means” to accomplish the NCAA’s goals?
The NCAA’s strongest argument by far is that Judge Wilken misapplied the last prong of a three-part test. That prong requires there to be a better way to accomplish the goal of amateurism without hindering competition than those rules imposed by the NCAA. Judge Wilken granted an injunction, which mandated that schools be allowed to provide an additional $5,000 of compensation sometime after the players were no longer students. The NCAA argued that Judge Wilken both made an error in finding a less restrictive method to achieve the goals of amateurism and that Judge Wilken did not have the authority to set the specific price mechanism that would constitute a “less restrictive means”.
The first argument depends almost exclusively on which definition of amateurism the Ninth Circuit chooses to adopt. If the Justices choose to adopt “no pay for play,” then allowing commercial payments would be the antitheses of amateurism. In contrast, if the Court adopts the broader definition of amateurism offered by O’Bannon, then allowing a small commercial payment could be allowed as long as it was not provided for the purpose or motive of making the athlete a professional.
So what will be decided?
Given the evidence presented, I find it highly likely that the Justices will choose the broader definition of amateurism offered by O’Bannon. If the Ninth Circuit uses the more expansive definition of amateurism, it will be a significant blow to the NCAA. That blow, however, can be softened if the Justices finds that Judge Wilken overstepped her authority by setting a price mechanism as a remedy.
From what I understand, it appears that by forcing such a specific remedy on the NCAA, Judge Wilken likely overstepped her authority. Therefore, it is likely that the Justices will remand this case back to the District Court to reexamine whether there are valid less restrictive means of competition that the NCAA can use to reach the pro-competitive goals of amateurism. The difference this time is that Judge Wilken will likely be working with a broader definition of amateurism than she did in the first case.
Feature photo courtesy of Isaac Brekken, AP
Courtroom sketch courtesy of CBS
NCAA image courtesy of Ronald Martinez/Getty Images