Ed O’Bannon, You’re No Curt Flood – Wait, what? (Part Two)

ncaa_logo(This is a guest post by Garth, an Ohio State law grad and a future member of the MotSaG writing staff. Because of the breadth of this post, it will run in two parts. Part one ran on Friday and Part runs today)

Effect on Ohio State Athletics

There is no question the O’Bannon case has the potential to fundamentally change college athletics, but one has to be careful about getting into the prediction business. Did Curt Flood, via Andy Messersmith, change baseball? No question, he did. Did he hurt baseball? It does not appear so—baseball has seemingly thrived despite the advent of free agency. Did Title IX wreck college athletics? No, not in the grand scheme of things—football and basketball have thrived and women’s athletics has become a standard and important fixture in the collegiate sports universe (proponents of certain men’s programs like wrestling and men’s soccer might disagree as many of their and other men’s programs have been eliminated as a result of Title IX).

Furthermore, there are many potential outcomes, and who really knows what the effect might be and whether that effect is negative in the long run. One of the things at stake in the O’Bannon suit is the very nature of amateur athletics which itself has eroded in major respects over the last one hundred years (e.g., the Olympics no longer require participants to be amateurs). What I mean is that, the antitrust laws are aimed at businesses, customers, employees, etc. College sports involve “students” who, in conjunction with their student status, are not employees working for a fee, but are amateurs participating in a school sanctioned activity. (One only imagines the implications of an O’Bannon trial win for glee clubs and musical performances). An O’Bannon win could likely rip to shreds the notion of student and amateur status as they apply to collegiate sports. Thus, it could be that for certain sports the idea of amateur status could be abandoned and the sports might be operated by the schools as a sort of semi-pro league. Or the colleges could simply license their name, rent out their facilities and abandon any matriculation requirement, much as some schools approached football in its infancy.

Alternatively, Congress could step in and simply provide that antitrust laws do not apply to the NCAA–effectively dong for the NCAA what the Supreme Court has done for baseball (and still could do for the NCAA). For example, Congress could simply amend the antitrust statutes to clarify that institutions of higher learning offering intercollegiate sports opportunities to matriculated students were never intended to be covered by the antitrust rules. One can only imagine the shape such legislation might take and the exceptions it might permit and the conditions it might require.

Disregarding such unintended and unforeseeable consequences and only extending into the future what we know about the current landscape, what effect does an Ed O’Bannon complete win portend for Ohio State athletics? From a very narrow but colossally important perspective, very little and in fact, if one assumes collegiate athletics is a zero sum game, where winners win more as losers lose more, it could be quite positive—AT LEAST AS TO THE SPORTS THAT SURVIVE. Let’s face it, college football is the monster at the center of all this, and no program sits any higher in the hierarchy, as a practical matter, than Ohio State. A strong second fiddle is basketball, and Ohio State is certainly a top tier player there as well. So Ohio State is going to do just fine—as for football and basketball.

From a football perspective, the most common observations are that a complete O’Bannon win would mean that players would be paid at least a stipend (if not a lot more), that such a stipend would be affordable only by the richest programs and this would accelerate the move to just a few super conferences. Given the re-alignment that has already taken place and the move to more competitive schedules to prepare for the new national championship mini-tournament that will commence in 2014, this will not have huge additional effect on Ohio State. Basketball would share much the same dynamics.

As for recruiting for football and basketball, it is very tough to predict the outcome. Recall that to make the case eligible for class action status, there has to be a showing of typicality, which could require a uniformity of damages. Thus if the case were to go to trial as a class action and the plaintiffs were to prevail, the judgment might have to be uniform as to the plaintiffs, and this would probably drive a uniform approach to future player payment. So depending on the award it may not be that an SEC team could compete against a Big 12 team and say,” listen, we can pay you a higher share of our TV revenue than they can over there.”

However, if the award is a percentage of that conference’s revenues, just perhaps this kind of recruiting could conceivably take place. It would not appear one could recruit a five star player and suggest he would be paid more than a three star recruit on the same team, but these are the unknowns. Of course a settlement could provide for an acceptable per diem—for example $2,000 or $5,000, etc. Could football offer a higher stipend or payment than basketball? Can certain sports be excluded altogether?

However, as AD’s around the country have observed, and as OSU’s Gene Smith has said directly, a substantial diversion of revenue such as the O’Bannon case might mean will certainly cause a reduction in the number of sports supported by Ohio State. If this is true of an athletic program as rich and as successful as Ohio State’s imagine the carnage that could be strewn across the rest of the vast collegiate landscape.

There is already a great divide among athletes even at a program like Ohio State. For example, in a normal year, Ohio State would have 85 players on full scholarship, including full room and board. While there are a few walk-ons, the expectation for anyone who gets on the field is that he has a full ride. The women’s soccer team however is only allocated eleven scholarships even though the team needs 25-30 players. Those players work at their sport just as hard as football players do and many come from families as impoverished as the families of many football players. An Ed O’Bannon win would exacerbate the difference as football and basketball members share in the proceeds of their sports television revenue while the women’s soccer players receive virtually nothing, and given the shake-up in the economics of running an athletic department, would likely receive even less than they receive now.

So an additional irony is that the families of players in the minor sports, who can rarely see their child on television, will likely receive less for their efforts, while the families of the major sports players will be compensated even more because of an intangible benefit they and few others enjoy.

Also likely to change for Ohio State athletics is the nature of recruiting for all sports and the shrinking universe of competitors for sports, especially outside of football and basketball. To the extent sports are dropped in other programs, there will be fewer competitors, both for recruiting and for competition. To the extent an athletic program shrinks around football, because of Title IX, the impact will necessarily be felt most by the men’s programs (though women’s sports will likely be severely affected as well). Thus, the Ohio State men’s hockey and wrestling and teams will have more recruiting opportunities but fewer competitors. But of course, in the zero sum game of college athletics, these benefits depend on being one the programs that survive—and even if it does, in reality, outside of recruiting, a sport hates to sees competitors disappear from the competitive landscape. In addition, a sport like men’s lacrosse, or possibly baseball may be in danger if so many other programs cut those sports that the sport fails to achieve enough national or regional gravitas to continue to justify the support now provided.

One is tempted to say that while a sport like wrestling will be clobbered, and to some extent that will be true, at Ohio State it is not likely to be cut because of wrestling’s relative strength in the midwest and particularly in the B1G. However, there are programs within the country where wrestling does enjoy some television prominence and revenue, Iowa and Oklahoma State for example, and it is possible that certain schools could recruit by offering a share of television proceeds in a way Ohio State could not, again depending on how the typicality requirement of the class action rulings are interpreted.

Sheesh Already

There is no way to project how an O’Bannon win could play out. Certain claims have been left out and certain plaintiffs overlooked—mostly to fit this case within a winnable case to sustain a class action for the current plaintiffs. But those fights will be fought again someday if O’Bannon sniffs victory—either as part of a settlement or in new and separate suits. In fact the NCAA could start to face multiple class action attempts all at once.

The judge is likely to take several months to issue her decision and even then, it could be a year or more before it is known how this could play out. At some point we will know whether a career flop like Ed O’Bannon can nonetheless achieve the same if not greater transformational effect as a player of Curt Flood’s status achieved forty years earlier.


  1. I really dont want to see any sports cut be it womens or mens. I love that OSU gives so many sports a chance to be associated with the university. I mean heck we even have a world famous Quidditch team…. Go Harry Buckeye Potters!!!

  2. This case spans both of my loves: College football and video games. If this case ends up screwing Electronic Arts, I would actually not shed any tears. On the other hand, this seems like it’s going to be messy and mess up Ohio State athletic. While we wouldn’t lose football or basketball, it would be a shame that other sports weren’t able to offer kids an education that they couldn’t otherwise afford.

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