Approximately a decade ago, a United States District Court in California heard O’Bannon. The case was brought by Ed O’Bannon—a former student-athlete at UCLA—on behalf of all collegiate athletes, and it challenged the National Collegiate Athletic Association’s (NCAA) restrictions on benefits student athletes were permitted to receive. O’Bannon’s argument was that the NCAA member universities were profiting on the backs of student-athletes, while the athletes were prohibited from profiting at all. Using antitrust law and policy-based arguments, the plaintiffs were able to obtain a verdict that allowed the NCAA member schools to provide student-athletes with the full cost of attendance to their respective universities: a payment that was prohibited prior. However, the NCAA’s focus on its quality of “amateurism” still restrained the argument for unbounded pay-for-play and allowed the NCAA to continue restraining the money paid to student-athletes.

In sum, what resulted from the O’Bannon case was the ability of the NCAA member universities to pay student-athletes a monthly stipend of up to $500 in addition to their scholarship. However, the $500 amount, for many student-athletes, is still not enough to cover all of their living expenses and is especially miniscule as compared to the amount that the universities receive as revenue from those sports. As such, many argue that the O’Bannon case failed to fully address the problem. Today, the fight for pay-for-play hasn’t ended. If anything, the fight has been fueled as the revenues that universities receive from collegiate sports are higher than ever before. The overwhelming majority of this massive profitability derives from the men’s basketball and football teams.

Jenkins v. NCAA is effectively an O’Bannon rematch. This time, with slight change in strategy from the plaintiffs, partly due to the benefit of the information from the O’Bannon case that came before it. In front of the same district court judge, Judge Claudia Wilken, the argument has changed, but the plaintiff’s goals are highly motivated by the same social justice goal. The Jenkins plaintiffs argue that players’ athletic scholarships should be unbounded, and instead be dictated by market demands in the same way that coaches’ and other athletic staff’s salaries are determined. Jenkins plaintiffs “are pushing for deregulation that would allow regional conferences to set rules on the expenses that colleges can cover.”

To oppose the plaintiff’s assertions, the NCAA will need to persuade the court that the current NCAA restrictions imposed on scholarship amounts “promote competition more than they harm it in the market for student-athletes’ athletic services.” Repercussions of this change include providing players with the autonomy and bargaining power that they feel they lack currently, adding another level of competition between schools and conferences, and opening the door for potential cases of collusion among other possible legal violations. But for the plaintiffs, this is a welcome change and the risks are justified by the rewards.

As trial is still ongoing, it is quite possible that the outcome could go many directions and vary greatly based on whose arguments are most persuasive and most well-reasoned. Moreover, it can be expected that the losing party will appeal Judge Wilken’s decision. However, the prospect of effective free agency is interesting to consider. Should Judge Wilken’s final judgment include free agency and deregulation by the NCAA, the outcome could be that the money that member universities would need to pay players would come from the surplusage they currently possess, resulting in insufficient funds to also support otherwise unprofitable sports. As such, many collegiate sports would be eliminated entirely, particularly those known for being Olympic sports. No matter the final judgment of Jenkins, which is many months away, it is interesting to consider what the United States’ collegiate athletic landscape could look like in the event of total upheaval of the current system.

Bailey Vincent

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