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Pay for play: Lawyers suggest universities start saving money for athletes

By: DOLAN MEDIA NEWSWIRES//August 19, 2014//

Pay for play: Lawyers suggest universities start saving money for athletes

By: DOLAN MEDIA NEWSWIRES//August 19, 2014//

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By Brian Brus
Dolan Media Newswires

ballIt may take years to settle appeals in an NCAA sports licensing case, but schools would be wise to start setting aside money now, legal experts said.

They might also consider getting out of the business of selling athletes’ likenesses for video games and other entertainment media altogether, said Kent Meyers, an antitrust attorney with the Crowe & Dunlevy law firm in Oklahoma City.

“While I’m a moderate sports fan, I can’t imagine how zealous you’d have to be to want to see somebody’s face in a video game while that figure is running down the court,” Meyers said. “It makes more sense to avoid it entirely.

“It doesn’t surprise me that the NCAA would get hit on this,” he said. “I see their influence in major college sports diminishing, and it will be interesting to see how far this will go.”

U.S. District Judge Claudia Wilken last week ruled that college players deserved compensation for their part in market licensing deals, although not necessarily while they are still in college.

The question was raised in an antitrust lawsuit brought several years ago by Ed O’Bannon, a former University of California, Los Angeles basketball player, on behalf of Division I men’s basketball and football players. The plaintiffs alleged that the NCAA violates antitrust law by colluding with schools to fix prices and refuse deals.

In particular, they challenged the rules that bar student athletes from receiving a share of revenue that the NCAA and schools receive related to student names, images and likenesses in video games, live game telecasts and other media.

The NCAA countered that its rules protect collegiate sports values and maintain a fan base that wants to watch amateurs.

Wilken’s ruling includes an injunction to keep the NCAA from enforcing any rules that would prohibit member schools from offering recruits a share of such revenues. It does not force compensation, but it opens the door to that possibility, noting that schools have the authority now to pay off the full cost of athletes’ educations and hold in trust limited shares of licensing revenue to be distributed after they leave college or their eligibility expires.

“Permitting schools to award these stipends and deferred payments would increase price competition among (Football Bowl Subdivision) football and Division I basketball schools in the college education market (or, alternatively, in the market for recruits’ athletic services and licensing rights) without undermining the NCAA’s stated procompetitive objectives,” the judge wrote.

Meyers was involved in an NCAA case nearly 30 years ago that resulted in the organization losing control of television rights and has been in a few skirmishes with the NCAA since then, he said.

“I don’t believe the NCAA to be a mean or vindictive institution,” he said. “It’s just that sometimes laws get violated even under the best intentions.”

Meyers said he’s intrigued at how the value of compensation might be worked out for different players, as some receive more attention in public than others.
For example, should a second-string kicker who gets screen time once in the season get paid the same as the star quarterback?

Stuart Campbell, an attorney at Doerner Saunders Daniel & Anderson law firm in Tulsa, Okla., echoed some of Meyers’ comments regarding financial planning while the case is appealed. Schools and the NCAA should seriously consider setting aside funds for student athletes soon, as Wilken implied in the ruling, Campbell said, even though it might take years to resolve the matter.

“It’s been a chicken-and-egg question for as long as I can remember, as to whether or not student-athletes should be paid at the college level or how to compensate them properly,” Campbell said. “This ruling may pacify some people.”

Campbell said Wilken’s approach seems to split the difference of recognizing the NCAA’s nonpayment rules for current athlete-students while also protecting players’ compensatory interests.

“I don’t really see a downside to this ruling – other than from the NCAA’s perspective,” he said.

“Then there are a lot of people who believe, ‘You are students, therefore you should not be paid, period,’” he said. “Just look at the amateur status of the Olympics. But as a student-athlete, it’s tough. A lot of these kids don’t have money and they’re on limited scholarships trying to get by.”

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