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Column: NCAA lost in court, but athletes didn’t win, either

(On College Basketball)

If the opinion published Friday night in a landmark college sports antitrust case were a novel, then its villain would be the NCAA.

In a novella-length 104-page opinion, U.S. District Judge Claudia Wilken criticizes, berates, even mocks the NCAA for its refusal to allow colleges to compensate players for their valuable labor beyond a scholarship and related costs of attendance, all in the name of something they call amateurism.

“Defendants nowhere define the nature of the amateurism they claim consumers insist upon,” said Wilken, referring to the NCAA and several of its richest, most prominent conferences.

Even if they had, Wilken continued, she pointed to numerous exceptions when players could, effectively, be paid. Players are paid, beyond scholarships, all the time: in untold millions of dollars invested in training facilities; in gifts for participating in bowl games; in funds available to purchase loss-of-value insurance.

“The rules that permit, limit or forbid student-athlete compensation and benefits do not follow any coherent definition of amateurism,” she said.

The decision stems from a long-running case in which a group of college athletes sued the NCAA and 11 athletic conferences that participate in the top levels of basketball and football. They contended that the ruling bodies of college sports had colluded to enact a system that unfairly limits the compensation they receive when they are attending and competing for their universities. The NCAA and the conferences argue that those limits are essential for promoting amateurism and enhancing the value of college sports and undergraduate education.

In her decision, Wilken seems to say that those rules “did restrain trade,” producing “significant anticompetitive effects.”

“The clerk,” Wilken added on the final page, with the majestic understatement of a good literary denouement, “shall enter judgment for the Plaintiff class.”

So why doesn’t it feel as if the group of athletes who pursued the litigation to end the NCAA’s rule won the case? Why did they and their star sports labor lawyer Jeffrey Kessler not get the outcome they most fervently sought?

Despite finding that the NCAA was violating federal law, Wilken turned away the plaintiffs’ main proposed remedy, which was also the logical one: to lift the supposedly lawbreaking cap on compensation. That means the continuation of a status quo in which so many players feel they are working basically for free. How’s that?

“When you apply a uniquely muddled set of laws to a unique industry, this is the kind of ruling you get,” said Gabe Feldman, who directs Tulane’s sports law program and teaches antitrust law (the unique muddle to which he was referring).

The upshot of Friday’s ruling, pending a likely appeal, is that the NCAA may continue to cap payments to athletes after all — with the limited exception of expenses that are educational in nature. Think computers, or costs related to internships, or postgraduate scholarships.

Don’t think: stipends of $1,000, or $10,000, or $100,000, because the player receiving it is good enough that he or she is worth even more than that to the college in increased ticket sales, and media exposure and television rights payments.

No wonder several of the defendants responded this weekend with the kind of equanimity one does not expect from parties that technically lost a case.

The decision “reaffirms the fundamental principles of the collegiate athletic model and of amateurism,” Pacific-12 Commissioner Larry Scott said in a statement. “Student-athletes are first and foremost students, who attend college to receive an education and to prepare themselves for success in life, while also pursuing athletic excellence.”

(Scott’s statement is more aspirational than descriptive: There are basketball players who conclude their college careers before finishing even a year of college.)

Similarly, the reaction from players’-rights advocates was more muted than you might expect post-victory.

“This is progress, but it’s just one step,” Ramogi Huma, of the College Athletes Players Association, said in a text message. “This ruling still treats athletes as second-class citizens. No other student or citizen is subject to such harmful economic price-fixing, especially one imposed by a repeat antitrust violator that does not have an antitrust exemption.”

How can a judge rule that a law is being broken but allow the lawbreaking to continue?

According to Feldman, the answer includes a much-disputed antitrust principle known as the rule of reason. In some cases — including this one — the rule calls for anticompetitive activity to be overturned only if there is a different system that could provide the positive benefits of the anticompetitive system without suppressing other competition as much.

Wilken determined that amateurism was crucial to college sports’ commercial appeal and allowed it to compete with professional sports, even if doing so required it to apparently violate antitrust law.

“The court does credit the importance to consumer demand of maintaining a distinction between college sports and professional sports,” she said.

Courts have given sports leagues a wide berth when it comes to antitrust, Feldman said: “The argument is that sports are unique.”

After all, sports cannot really exist unless, say, 353 teams are allowed to agree to the same rules in men’s basketball, even though that might technically constitute collusion in any other realm of commerce.

Wilken was also following precedent. Most of all, she was following a precedent set by the U.S. Court of Appeals for the 9th Circuit — her circuit.

In an earlier case, known as O’Bannon, the appellate court agreed with part of a Wilken finding at the district court level that the NCAA ban on compensating athletes for the commercial use of their names, images and likenesses in things like video games was an antitrust violation. But the appellate judges overturned her proposal that athletes be able to receive up to $5,000 annually in exchange. The 9th Circuit’s reasoning was that such payments were not “tethered to education.”

You can draw a direct line between that phrase, from 2015, and Wilken’s 2019 ruling in this case. That is how she Solomonically decided that the NCAA may restrict payments as long as they are noneducational.

“Future plaintiffs, if they challenge NCAA rules, will look for a jurisdiction outside of the Ninth Circuit,” Feldman said. The 9th Circuit, after all, has now made it very clear it will defer to the NCAA.

Another venue could rule in a more plaintiff-friendly direction. Kessler, the prominent sports lawyer, may now be able to push forward with a nearly identical case in U.S. District Court in New Jersey.

Either way, the future of college athletics is now out of the hands of Wilken, who for nearly a decade has loomed over it.

Her decision Friday may be a result of her understanding her power and its limits. Numerous observers expected a more plaintiff-friendly ruling based on the questions she asked during trial.

Yet here we are, with little change.

“This finding did not surprise me,” said Gerald Gurney, a former head of the reform-minded Drake Group.

“Even though she may have wanted to completely agree with Kessler’s arguments,” Gurney added, “she did have some constraints.”

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