Why the NCAA will not settle the O'Bannon case

Jamie Squire

If the NCAA were run by athletic directors, the outcome might be very different.

While the timing of last week's $20 million NCAA-Keller video games settlement was a bit of a surprise, the writing on the wall couldn't have been clearer: that case, which is distinct from the O'Bannon trial, was destined to be settled. After Electronic Arts and the Collegiate Licensing Company chose to settle with the Keller plaintiffs and also provided damning testimony, there was simply no way the NCAA could win that case.

So the organization did the smart thing — what almost any company would do under those circumstances — and settled for a very reasonable sum (by NCAA standards).

And here's the part of the NCAA's Keller statement that helps us understand why it won't settle with O'Bannon.

"Consistent with the terms of a court-approved settlement, the NCAA will allow a blanket eligibility waiver for any currently enrolled student-athletes who receive funds connected with the settlement. In no event do we consider this settlement pay for athletics performance," (NCAA chief legal officer Donald) Remy said.

That's how the NCAA announced that current players who get money for their likenesses appearing in video games will not lose their eligibility.

I'd really like Remy to explain how $20 million has nothing to do with the players' athletic ability — were they featured in video games because they're good students? — but it doesn't matter, because Remy's organization created its own definition of amateurism and can change the rules as it pleases. University presidents need that definition to convince themselves they're still upholding their academic missions. And that's what the NCAA's fighting O'Bannon over.

Regardless of your opinion on the lawsuit, it's clear the NCAA is taking an enormous risk by not settling. This is not going to be an easy fight, and it's all-or-nothing going forward. That's not something most big companies want to deal with.

The terms of a possible settlement are nothing the NCAA can't handle. Players would get rights to a little bit of the NCAA/conference television revenue and the ability for athletes to market themselves. That makes sense for an industry that keeps getting richer by the year, and it appears many athletic departments would not be against it.

But here's the problem: athletic departments and universities have vastly different interests. Although the NCAA oversees athletics, it's run by university presidents. And university presidents tend to be monumentally out of touch when it comes to athletics.

While athletic directors might not mind the fact that they're running businesses, university presidents need to believe they're upholding amateurism to prove to themselves and to the world that they're still more focused on academics than athletics. It's two different ideologies trying to work together — figuring out how to adapt to change and deciding not to deal with change.

In a 2013 interview with Sports Illustrated, USC athletic director Pat Haden made it clear that he's at least ready to adapt to the new world in the event of a loss. This makes sense, because his athletic department (like all the other ones around the country) is run like a business, and businesses have to adapt to new rules.

"We ought to be kept abreast of it at all times, and we ought to prepare for it in case we lose," said Haden, a former practicing attorney and businessman who became an athletic director in 2010. "I haven't followed the case closely, but what I read from legal scholars, it's not a slam dunk for the NCAA."

Coaches at bigger schools are too in the spotlight to say something controversial, but coaches at smaller schools — like Cal Poly's Joe Callero and Portland's Eric Reveno — have expressed a desire to just admit what college sports are, rather than backtrack on a commitment to athletics.

Instead of trying to build an acceptable business model around a new set of rules, college presidents, like Washington's Michael Young, would rather backtrack on perceived commercialism, while still emphasizing athletics.

"I don't think it's a diminished commitment to athletics (questioning time spent by athletes) as much as a re-balance, to try to make sure there's at least as much emphasis on the academic side as the athletic side."

(Commercialism in college sports was also a tricky concept for Boise State's president.)

You can bring in billions of dollars without giving any of it to the players and call it amateurism, because that's the way it's always been done. Hell, you can even give a little of it to the players as long as you don't say it's for athletics, because people will still buy that. But if you allow athletes to market themselves, and fans start seeing an active Texas A&M quarterback doing Nike commercials, nobody is going to believe it's amateurism anymore.

And that's why the NCAA can't settle this case, no matter how much financial sense it makes. The presidents won't allow it, even if their own athletic departments believe they should. They'll fight to the death to convince themselves there's amateurism in major college sports.

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