Like many powerful empires, the National Collegiate Athletic Association (NCAA) is learning that fighting on multiple fronts cannot only strain an organization, but it can also expose glaring weaknesses within it. Currently the NCAA is involved in multiple legal entanglements that threaten to reshape the face of collegiate amateur athletics in several ways and tear apart the governing body of major college sports.
PROBE OF UM ATHLETIC PROGRAM
The Matters and Litigants: Ever since April 21, 2010, when former University of Miami booster and convicted felon Nevin Shapiro implicated the school in a major scandal involving scores of current and former players and thousands of dollars' worth of improper payments, including those from his ill-gotten gains as a Ponzi-scheme operator, the NCAA has been investigating the UM athletic program. However, during its investigation into the program (based on a felon's statements), several media reports surfaced that Shapiro's lawyer was asked to use her subpoena power (because the NCAA has no such power) to gather evidence against the school through Shapiro's bankruptcy case. Shapiro's attorney, Maria Elena Perez, bills the NCAA thousands of dollars in the process of gathering this evidence. These revelations led to the resignation of the NCAA's lead investigator, among others.
Claims: The University of Miami challenged the NCAA's investigative findings throughout the investigation and threatened its own litigation against the NCAA for, among other things, "unprofessional and unethical behavior," as UM President Donna Shalala put it. UM served the NCAA with a motion to dismiss the case against it, but it was denied. The NCAA has defended its findings, claiming that any evidence that was improperly gathered was not used as part of the notice of infractions that could then be presented to the NCAA's Committee on Infractions. This matter has already been heard by the infractions committee and a decision is expected soon.
The Stakes: With the NCAA's investigative arm enmeshed in a scandal of its own — in which it paid the attorney of the convicted felon, and accuser, to gather evidence for the NCAA that was at least used to base its case against the University of Miami — a ruling in favor of UM will likely embolden institutions to challenge the NCAA's investigative and sanction authority.
O'BANNON V. NCAA
The Matter and Litigants: A class action, led by former UCLA basketball standout Ed O'Bannon, Basketball Hall of Famers Bill Russell and Oscar Robertson, and others, including within the last few weeks six active college football players at the behest of U.S. District Judge Claudia Wilken of the Northern District of California, seeks compensation from not only the NCAA but from EA Sports, the designer of video games that involve collegiate athletes and allegedly used players' likenesses for profit. The thrust of the antitrust claims is that former and current athletes should be compensated for the use of their likeness by the NCAA and EA Sports, as these companies received profits from use of their faces, movements, and skills. The lawsuit was recently amended, also at the request of Judge Wilken, to include a request as to whether the group of former and current players may certify as a class in challenging the NCAA and EA Sports. The judge is expected to issue a ruling on the viability of the class shortly.
The Stakes: Potentially the entire current version of the NCAA amateur athlete model is at stake. If the judge certifies the current class of athletes, the case will be set for trial, which means that the NCAA and EA Sports will need to make a decision: whether to settle the matter or to continue preparing for trial. A trial will cost thousands of dollars (probably not a huge factor for these multimillion-dollar corporations) and could result in the release of damaging information against the NCAA and EA Sports through discovery. Already, through depositions, it has been learned that some NCAA personnel had knowledge that there may have been an issue with how the video games were designed, but those concerns were brushed aside. Damaging evidence has also suggested that EA Sports made considerable efforts to use the likenesses of college football players for its games, and even had some plays specifically designed for certain college football players.
CONCUSSION LAWSUIT V. NCAA
The Litigants and Claims: Several former collegiate players have filed suit against the NCAA claiming that the college sports' governing body failed to address player safety concerns, leading to injuries to dozens of players. The suit pending in federal court also seeks class status against the NCAA so that thousands of former and current college athletes could join this lawsuit. The NCAA has defended its attention to safety, citing recent efforts to modify equipment, safety measures, and medical practices.
The Stakes: The potential plaintiff attorneys cite an expert report on interviews with college athletic trainers. The report includes a survey in which nearly half of the college trainers who responded suggested that they put athletes showing signs of a concussion back into the same game. This lawsuit, if certified as a class action, will cause the NCAA to expend considerable sums to respond to the allegations.
While not matters of litigation, the issue of paying student athletes (read: college football players) a "stipend" per semester was raised by several of the major college football programs. With college football rosters averaging 90 players per school, a stipend of even $2,000 could add up quickly. So much so that smaller schools balked at such an idea. Most recently, the issue of paying student athletes has come to the forefront with stories about the NCAA and its member schools continuing to sell college football jerseys of prominent players. The NCAA is also looking into allegations that autograph dealers paid for the autograph of reigning Heisman Trophy winner Johnny Manziel of Texas A&M, a practice currently forbidden by NCAA regulations. As the NCAA investigates this allegation against the first-ever freshman Heisman winner, the collegiate sports' governing body has been selling Manziel's jersey with Manziel's nickname "Football" and those of other prominent players on its website. The names of such players were also searchable on its website. After ESPN analyst (and attorney) Jay Bilas brought this to light, NCAA President Mark Emmert said that the NCAA would no longer be selling such jerseys on its website.
The Stakes: The NCAA's knee-jerk reaction resulted in more heat against it. It is unclear whether the payment of a stipend to college football players will raise other legal issues, most notably gender equality issues under Title IX.
With the foregoing as the current backdrop, the NCAA is looking at a potential seismic shift in the landscape of college football. Five of the biggest conferences of college football's Football Bowl Subdivision (FBS), formerly Division I, have been critical of the NCAA's failure to hasten changes to its governance, regulations, and investigatory arm, despite promises from current NCAA President Emmert that such changes would be forthcoming. Furthermore, these conferences' commissioners and coaches have taken various shots at current NCAA models, suggesting that these "power conferences" (SEC, ACC, Big Ten, Big 12, Pac 12, and perhaps others) may make a move to form their own governing body for at least football purposes. There is precedent for such a move. The power conferences already have formed the BCS, which after this year expires, giving way to the first-ever major college football playoff format, which is not controlled by the NCAA.
The Stakes: With the NCAA already having no stake in a college football playoff, the power conferences could make their move as soon as next year, when the playoff system commences. Most recently, a report produced by the Commission on Intercollegiate Athletics as part of an 18-month review of NCAA governance concluded that the NCAA's governance process could use more input from independent directors. Most notably, while the report did not state outright that a new division for major college football programs was a good idea, the commission did conclude that it warranted further study. In response to these various issues, Emmert has promised an announcement regarding the NCAA's structure in time for its January meetings. If he and the NCAA can hang on until then while fighting its legal battles, his announcement will either be a last-ditch effort to save his job and the cachet of the NCAA in big-time college football or it will fall short and the NCAA may cease to operate as it currently exists.