The NCAA under fire

Joe Nocera

Saturday, June 29, 2013 | 2 a.m.

In 1951, a man named Walter Byers became the first-ever executive director of the NCAA, an organization that at the time was both toothless and penniless. That year, the NCAA had been forced to abandon its short-lived “Sanity Code,” an effort to rein in excesses in college athletics. Byers, who had been an assistant at the Big Ten Conference, was given a room at the Big Ten for his office. He had one employee: his assistant. He was 29 years old.

Over the next 37 years, Byers built the NCAA into the powerful, wealthy monolith it is today. He is the man who coined the phrase “student-athlete” to deflect attempts to force universities to pay workers’ compensation. He fought efforts to tax college sports. (Today, buying a “seat license” is viewed by the IRS as a tax-deductible donation.) He negotiated the first million-dollar television contract and imposed the first “death penalty” — a one-year ban on Kentucky’s basketball team in 1952 after several players were involved in a point-shaving scandal.

But toward the end of his tenure, Byers turned against his creation. For most of his career, he later wrote, “I supported any rule that sought to keep college athletics more a student activity than a profession.” By the 1980s, though, he could see that the battle was lost: College sports was becoming big business.

So he began to say out loud that the rules needed to change: that, at a minimum, players should be allowed to endorse products and get additional financial assistance. The first person to compare big-time college sports to the plantation was not Taylor Branch in his groundbreaking 2011 article in The Atlantic. It was Byers. The NCAA responded by ushering Byers out the door, leading him to conclude that the only two forces that could impose real change on the organization were congressional action or litigation.

Last week in San Francisco, Michael Hausfeld, a plaintiff’s attorney from Washington, stood before a federal judge and argued that the NCAA violates the nation’s antitrust laws. Hausfeld is the lawyer who has brought the O’Bannon case, so named for the lead plaintiff, Ed O’Bannon, a former UCLA basketball star who sued the NCAA for licensing his likeness to the video game maker EA Sports without compensating him. Dozens of other former college athletes have since joined the suit.

If they get certified as a class — and that is what Thursday’s arguments were about — there would be potentially tens of thousands of plaintiffs. (Disclosure: William Isaacson, a lawyer at Boies, Schiller & Flexner, is aiding Hausfeld. My wife, who is the firm’s director of communications, has no role in the case.)

Not since the 1980s has the NCAA faced such a legal threat to — let’s call it what it is — its “business model.” That is the model that generates billions of dollars, which is divvied up among coaches, athletic directors, conference commissioners — everyone except the “amateurs” who play the games.

This has become increasingly untenable. Over the past few years, the NCAA has found itself in turmoil, with many of the big-time schools questioning whether they even need it anymore. It’s not that they are yearning to pay the players, but the hypocrisy of the current situation has become so flagrant that the center is no longer holding. And the NCAA’s efforts to defend its amateurism model have taken on a feeling of desperation.

For instance, the NCAA’s legal arguments in the O’Bannon case are almost laughably weak. It argues that if the players were paid, then college sports would lose its appeal. Says who? It claims that college athletes must continue to be amateurs because, well, that’s the way it’s always been. It even argues that if O’Bannon wins, schools like Michigan, with its 110,000-seat football stadium, would downgrade its athletic status to that of, say, Amherst. I’m told that there were times last week when people were openly chortling at some of the NCAA’s oral arguments.

The last time the NCAA faced a major class-action lawsuit, it simply paid a large sum of money to make it go away. That’s classic NCAA behavior. Both Hausfeld and O’Bannon insist that won’t happen this time: O’Bannon was quoted in The New York Times saying that he wasn’t in it for the money: “I want systemic change. That’s what we’re here for.”

In the next month, the judge will make a decision about whether the lawsuit should go forward. There are no guarantees, of course, but if O’Bannon wins, and players have to be compensated for use of their likeness, it will be the first small step toward giving the players a share, at long last, of the riches their work produces.

It won’t, however, be the last such step. Whether through O’Bannon or some other means, the day is coming when the players will be paid. The only question is when.

Joe Nocera writes for The New York Times.