College Basketball Players’ Non-participation in the O’Bannon Case Makes Sense
Posted by Chris Johnson on July 22nd, 2013Chris Johnson is an RTC Columnist. He can be reached @ChrisDJohnsonn.
At a June class action hearing, federal judge Claudia Wilken instructed plaintiffs in the Ed O’Bannon lawsuit against the NCAA to amend their complaint to include one or multiple current student-athletes. The thinking was that by adding a current student-athlete, Wilken would be more inclined to grant class certification to include both former and current players. This is a crucial distinction. If Wilken certifies the class to include only former athletes, the prosecution’s case turns into a smaller and less-damaging suit about the uncompensated use of likenesses in video games. Including current-athletes would broaden the issue to an argument of whether student-athletes are entitled to a cut of the massive broadcast rights revenues generated by athletic conferences and their constituent member institutions. Last week, six current athletes added their names to the 16 former athletes arguing O’Bannon’s case, and all of them, curiously enough, were college football players. College basketball players were mysteriously absent.
The absence of college basketball players could hurt the plaintiffs’ cause.
That was the first impression after hearing the names of the six student-athletes who, in standing up to the organization that governs (and disputably so) their athletic performance, volunteered to publicly voice their discontent with college sports’ status quo. If football players were willing to challenge the NCAA, why weren’t basketball players eager to make the same stand? Were there not enough players willing to risk denigration and public ridicule for the sake of fair compensation in collegiate athletics? Was the realization of near-term legal responsibility and distant financial reward too weak an incentive to incite participation? Was the fear – even after the NCAA’s written promise against it– of retribution so unnerving? According to Sports Illustrated legal analyst Michael McCann, all of the above is probably the best explanation.
According to a source close to O’Bannon’s legal team, several college basketball players communicated interest in joining the suit. After some consideration, however, the players thought otherwise. Parents of those players, in particular, expressed concerns about the potential for retribution by the NCAA, specifically that negative information might surface that might impact the player’s draft status and corresponding rookie NBA contract.
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Players who expect to play one season of college basketball and then turn pro also questioned the value of joining a lawsuit that centers on compensation for play while in college. As for good college basketball players who do not project to be NBA players, those players had concerns about losing starting jobs or minutes.
All of those reasons are rational and level-headed, and there is zero confusion as to why college basketball players – or athletes in general – would hesitate to throw their names into a landmark lawsuit threatening to undercut the philosophical and functional foundation of college sports. Amateurism is a complicated thing, and even if some athletes don’t agree with it, I am willing to bet a lot of them don’t know enough about it to willingly join a lawsuit aiming to rip the concept to shreds. That still does not answer the question of why zero college hoops players were willing to join the case.
One possible explanation is a general distrust of the NCAA on behalf of the players. As McCann notes, many of the players interested in joining the suit ultimately decided the risk of identifying themselves as plaintiffs outweighed the potential benefits – which are, barring a quick settlement by the NCAA, a long way (and an even longer line of legal jostling) away from becoming a tangible reality. The NCAA itself addressed that risk in an open letter last week, which should have eliminated any misgivings about potential punishment from joining the suit, but if the players remained skeptical about joining a cause they strongly believe in, even after receiving written assurance they would not be punished, what does that say about the public perception of the NCAA? When those players and their parents cannot trust the NCAA to honor its word, when loyalty to the organization has bottomed out not only among media critics and rational economists, but the players themselves, isn’t the entire system already broken?
Delayed financial rewards is another deterrent: basketball players planning to leap to the NBA have no practical reason to fight for something that won’t benefit them at any point during their abbreviated college careers. Even so, the probability of athletes seeing any drastic changes at any point over the next three or four years – or the length of the participating football players’ eligibility – is highly unlikely. If class certification is granted, this case will be appealed all the way to the supreme court. A lengthy legal battle will ensue. The participating football players threw their names in the anti-amateurism ring not because they expect to gain financially, but because they disagree with the way amateurism forces an unfair distribution of revenue between student-athletes and schools and conferences. They are fighting on behalf of future student-athletes, not themselves. Players planning to spend one or two years in college and then declare for the NBA – where money, in case you haven’t noticed, is rarely in short supply – are understandably loath to compromise their prospective professional futures for a suit that, while just and morally right and widely supported in principle, deals exclusively with the way revenue is divided in college sports. And for the players not good enough to play in the NBA, it is impossible to predict whether coaches (whose massive salaries are directly intertwined with college sports’ current revenue distribution arrangement) would seek out means to punish – whether directly or indirectly – them by slashing playing time or issuing strict transfer prohibitions (as if that has not already happened) or using some other mechanism to challenge or inhibit those players’ ability to continue playing while participating in the O’Bannon suit.
The result of not having college basketball players could weaken O’Bannon’s case. Perhaps Wilken will be less inclined to include college basketball players in a prospective class certification ruling – the NCAA will probably argue this, and unless one courageous hoops player steps up sometime before Wilken’s class ruling later this summer, O’Bannon and his plaintiffs will have no current basketball representative to combat that claim. The suit threatening to obliterate the decades-long amateurism charade is gaining steam, and if Wilken grants them class action status next month, a new college sports ruling model could be imminent. College football has already added its own player representative, but college basketball – which produced the man, O’Bannon, who is spearheading this entire movement – was unable to produce its own representative. The reasons for this are not hard to divine, but they could hurt the plaintiffs’ chances of earning the pivotal class action distinction. For those hoping to see amateurism’s grip on college athletics be usurped by a fairer and more evenly compensated system, this is not a positive development.
My name is Chris Johnson and I'm a national columnist here at RTC, the co-founder of Northwestern sports site Insidenu.com and a freelance contributor to SI.com.
