After a seemingly endless debate about pay for play, a group of current and former college athletes are now telling a federal judge that she need take only a "quick look" at their lawsuit to conclude that they should all be paid.
The players' assertion comes in a recently filed demand in the O'Bannon antitrust lawsuit against the NCAA for an injunction that would bar the NCAA from enforcing its rule against paying student-athletes anything beyond their scholarships. Under the rule, the players' lawyers suggest, the NCAA is guilty of obvious price fixing when it set the price for the use of player names, images and likenesses at zero. It is so obvious, they say, that a mere "quick look" is all that is necessary to issue an injunction that would revolutionize college sports.
The move from the players came after a major setback Nov. 8, when U.S. District Judge Claudia Wilken in San Francisco ended the players' pursuit of a class action for money damages for prior uses of their names, images and likenesses.
The "quick look" idea enjoys a historic place in the law that governs college sports. It was critical to the triumph of major college football programs in the 1984 landmark U.S. Supreme Court decision in NCAA v. Board of Regents of the University of Oklahoma. That decision ended the NCAA's attempts to place limits on the televising of college football, and it allowed major programs to make their own broadcast deals.
Setting aside more-complicated formulas for applying antitrust law to college sports, the nation's high court ruled that the NCAA's limits on broadcast contracts were so egregiously in violation of the rules against open competition that only a "quick look" was necessary to bring an end to the NCAA's plan for television. The ruling ended forever the NCAA's attempt to control the television market for college football and allowed schools like Notre Dame to keep the proceeds of televised games and end the sharing of TV revenue with other NCAA members.
The players who are now demanding payment for use of their names, images and likenesses are relying both on the "quick look" procedure and the substance of the ruling in the Board of Regents decision. In their court papers, the first legal authority that the players' attorneys use is the Supreme Court's football decision, and in the homely prose of lawyers and judges, they say that the ban on payment to college athletes is a "paradigmatic example" of rule that stifles competition.
The demand for the injunction is based on the NCAA's total control of the college sports market and its use of that control to eliminate any possibility that college athletes could collect income for the use of their names, images and likenesses or their performances in live games on television.
The players' action is clearly an attempt by their lawyers to recapture the momentum that they lost with the ruling this month and to push their attack on the NCAA to a quick conclusion in a case that was filed four years ago.
The lead attorney for the players, Michael Hausfeld, in his court filings tries to minimize the impact of the injunction, stating that the players "are not advocating an end to the principle of amateurism, nor are they advocating salaries for student-athletes." But the injunction would be the most dramatic development in the structure of the NCAA since the decision in 1984 case.
The players' reliance on the "quick look" mechanism shows their faith in the strength of their case. They think that if the Supreme Court needed only a "quick look" to eliminate the NCAA's controls on college football, then only a "quick look" is necessary to eliminate the NCAA's controls on player incomes.
The maneuver is no surprise to the NCAA. Its lead attorney, Glenn Pomerantz of the San Francisco firm of Munger, Tolles and Olson, was involved in at least one prior "quick look" case, this one in the recording industry. The case involved a Three Tenors concert album produced jointly by Polygram and Warner and restraints on advertising and distribution of two prior Three Tenors albums produced by the companies individually. The U.S. Federal Trade Commission ruled after a "quick look" that the restraints on the earlier albums violated antitrust laws and harmed consumers. Pomerantz and the record companies appealed and lost.
The NCAA does not seem overly concerned about the players' unexpected and dramatic move.
"It appears that having finally lost their claim for monumental damages, the [players'] lawyers now seek to challenge amateurism itself," said Donald Remy, the NCAA's chief legal officer. "They ask the court to disregard established Supreme Court and appellate court authority in their ongoing effort to destroy college sports for the vast majority of student-athletes in order to pay a few."
Hausfeld expects to present the injunction at a Feb. 20 hearing. Wilken could easily decide that the situation requires more than a "quick look" and ask for a trial. But if the players and Hausfeld are correct, they have moved one step closer to the long-debated pay for performance.