MORGANTOWN — The Ed O’Bannon lawsuit against the NCAA goes to court June 9 and could forever change the look of intercollegiate athletics. Personally though, it was already real. Real personal, in fact, when EA Sports decided in September it would no longer make its college football game.
Gone was symbol of a generation entertained and even educated by the digital versions of our Saturday saviors.
The moment EA Sports took a knee, you could see the writing on the wall, a wall that was closing in on the NCAA, which stands alone in the final days before its latest defining moment.
Last week, the Collegiate Licensing Company and EA Sports finalized their part of the lawsuit with a $40 million settlement that will be paid out to current and former student-athletes. They’re to be reimbursed for the use of their likenesses in the college football and basketball video game franchise.
One of the plaintiffs was former West Virginia running back Shawne Alston. He’ll get a $5,000 payout and some 100,000 football and basketball players are eligible for as much as $4,000 because they were, as EA Sports likes to say, in the game.
Very little has gone the NCAA’s way since the lawsuit started in 2009 to get student-athletes a slice of the broadcast revenue that goes to anyone but them.
That’s an antitrust matter, and that’s serious business in the court room, which is why the O’Bannon parties want an injunction that seeks to keep the NCAA from hoarding the money.
What began as a way to stop the NCAA from selling the increasingly lucrative rights to broadcast its money-makers without ever paying those who generate the revenue was combined the following year with the video game lawsuit brought about by former Nebraska and Arizona State quarterback Sam Keller.
EA Sports and CLC decided to settle nine months ago, but the NCAA did not and wanted both suits to go forward together. The lawsuits were instead split up and the Keller case was to begin in March 2015, while the O’Bannon case gets going Monday.
Yet while those cases are separate, the judge made a rather significant decision by allowing important evidence and claims from the Keller case to be used in the O’Bannon case — and the NCAA can’t be pleased about that if the material was powerful enough to encourage a settlement on the other side.
In short, the video game makers admitted to modeling their games after real players, and they were found to go as far as referencing Tim Tebow in certain plays in his final appearance in the game. Paperwork from the Keller case’s settlement refreshed existing concerns from the Big 12 before the Mountaineers were members.
In 2009, then-commissioner Dan Beebe said in an email he was worried about how players and their likenesses were being exploited.
Texas President Bill Powers saw the NCAA was making money off that and wondered if college administrators were better off as plaintiffs as opposed to defendants. Harvey Perlman, the chancellor at then-member Nebraska, predicted the looming conflict between the NCAA and the use of player likenesses was “a disaster leading to a catastrophe.”
None of that is a good look for the NCAA, but that’s not the biggest thing working against the governing body or the greatest fear hanging above its head. There’s an outcome out there that has little to do with a ruling and instead has everything to do with a reality, though those are certainly bound together here.
Few think the NCAA can win, so the focus then falls on what comes next. Through a certain prism, it looks kind of scary.
Last month, the judge upheld a previous ruling that keeps the NCAA from saying it can’t pay players broadcast revenue because doing so would diminish the resources used to support smaller sports.
Whether or not it’s a valid argument, the NCAA at least presents a point. It believes sharing the revenue — the O’Bannon case seeks half — would at least endanger and possibly cripple the way schools fund sports other than football and men’s basketball.
It’s a vastly overlooked part of the conflict, and one you can understand when you get a look at the numbers the NCAA circles. Take WVU as an example: In the 2012-13 equity report, baseball showed expenses in excess of $1.5 million. Revenue was just above $500,000. Women’s basketball? Try $3.4 million in expenses and $1.5 in revenue. Men’s and women’s soccer combined? That’d be $2.4 million in expenses and $490,000 in revenue.
Football has $16.1 million in expenses and $27 million in revenue. Men’s basketball had $7.4 million in expenses and $6.6 in revenue.
So what happens if WVU has less money to support baseball or men’s soccer, never mind the two teams that usually drive the athletic department?
You see the point the NCAA is trying to make. Schools need the money in question so they can create and enhance opportunities for all student-athletes. The judge just isn’t allowing it, and the argument there is the NCAA can’t be allowed to stand behind a rule it created when it can simply make better rules. The judge sees no reason the NCAA and its membership can’t come up with shrewder revenue-sharing rules and spend wiser than it does with schools and leagues obsessed with supporting football and men’s basketball with salaries, facilities, recruiting budgets and such luxuries.
By the time things get started next week and before it all ends, the NCAA has to prove there’s nothing wrong with the way it conducts its business, which seems like an impossibly tall task in the presence of opinions and even admissions that its system is unfair.
What seems like a greater concern, though, is how new revenue sharing and tighter spending changes what we once knew.