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College athletes can’t unionize, but will soon market themselves

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Successful college football programs routinely fill 80,000- to 105,000-seat stadiums every Saturday in the fall. Basketball-crazy fans pack 17,000- to 20,000-seat arenas in the winter. Not that long ago, the income generated by football and basketball programs was almost the sole source of funding for non-revenue-producing programs.

In 1984 the U.S. Supreme Court ruled the NCAA (a.k.a. “The Evil Empire”) had violated anti-trust laws by preventing schools from negotiating their own television deals. Financial windfalls soon followed. With the explosion of additional television revenue, members of major conferences began to accumulate tens of millions more in revenue.

Seeing this, Northwestern University football players sought the ability to unionize themselves in 2014. They made their case to National Labor Relations Board (NLRB) Region 13 Director Peter Sung Ohr.

The players argued they were employees of Northwestern. Despite the legal mountain of demonstrating they were under a labor contract and were being paid, Ohr pulled them over that mountain and ruled in their favor. He said the scholarship was a contract and represented payment to the players.

This week, the full NLRB unanimously overruled Ohr. The Board said unionizing Northwestern could “upset the competitive balance” in college football. They did not rule out the idea of a union entirely.

“They punted on it,” said William Gould IV, a former NLRB chairman. “The message the board has given us is that these are waters that they are reticent, reluctant, to tread in.”

While college player unions are unlikely in the near future, another case is poised to make a greater impact on college sports. It is also likely to garner support from a majority of Americans once they become more aware of it.

Recognizing the NCAA and member schools were raking in hundreds of millions of dollars from college athletics and athletes, former UCLA basketball forward Ed O’Bannon filed suit seeking compensation for players. O’Bannon argued current and former players have claims to profits generated from their images and their efforts.

In a new angle, O’Bannon included EA Sports and Collegiate Licensing Co. as defendants. The suit claimed licensed video games and the NCAA enjoyed enormous profits generated from the images and likenesses of college basketball and football players.

In May, 2014 EA Sports and Collegiate Licensing settled for $40 million. The result means about $4,000 each for 100,000 former and current college football and basketball players.

On August 8, 2014, District Court Judge Claudia Wilken ruled in Oakland, Calif., the NCAA was again in violation of anti-trust laws. The ruling, effective in 2016, gave schools at the top 10 football conferences and all men’s Division 1 basketball programs the authority to offer compensation (capped at $5,000) for their efforts and likenesses.

The NCAA appealed to the U.S. Court of Appeals for the 9th Circuit in March, 2015. In an argument not dripping with, but an open hydrant, of irony was their reference to a U.S. Supreme Court ruling stating “athletes must not be paid.” That 1984 case was the historic anti-trust ruling that freed colleges from the bondage of the NCAA-mandated television package.

A three-judge panel is expected to rule sometime this year with the losing side expected to appeal to the U.S. Supreme Court. O’Bannon is expected to again prevail. With no avenue for appeal, the Northwestern union matter is going no further any time soon.

The O’Bannon case has the likelihood to change the big revenue sports within Division 1 (or FBS, FBI or whatever they try to call it now). Florida colleges and universities are impacted.

In 1984, colleges won the freedom to make their own television deals. Today, the players seen on more channels because of that ruling are that close to having the right to make their own deals.

We can all appreciate amateurism, but not when college athletic programs are playing by professional marketing rules. Scholarships are great and valuable, but they come nowhere near the value provided to college athletic programs by prominent college athletes.

The time for change is at hand.

Bob Sparks is President of Ramos and Sparks Group, a Tallahassee-based business and political consulting firm. During his career, he has directed media relations and managed events for professional baseball, served as chief spokesperson for the Republican Party of Florida as well as the Florida Department of Environmental Protection and the Attorney General of Florida. After serving as Executive Deputy Chief of Staff for Governor Charlie Crist, he returned to the private sector working with clients including the Republican National Committee and political candidates in Japan. He lives in Tallahassee with his wife, Sue and can be reached at [email protected]

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