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Miller: Recent NCAA, EA settlements not enough for collegiate athletics

NCAA reform has been on the horizon for several years now, like a tsunami or an impending storm gathering strength miles from land; everyone who follows the action knows it is not a matter of whether or not changes are made, but when and by how much.

But perhaps unsurprisingly, the legal efforts to fundamentally change the relationship between the NCAA, its member institutions and its athletes have and will continue to be long, drawn-out affairs. As a result of the slow nature of the litigation, there has been much, much talk and comparatively little action, as the NCAA has resisted alterations to its model of amateurism — a framework that has allowed this “non-profit” to willingly and systematically deny athletes their fair share of ballooning profits — with the strongest possible vigor.

But finally, at long last, it appears the NCAA’s staunch defense has cracked. The storm, at least part of it, has made landfall and the waves of change are crashing upon the weathered walls of Mark Emmert’s castle, threatening to wash away the core tenets of an organization that operates with unfair and unjust restrictiveness.

The pounding surf I refer to is that of the recent settlements made by the NCAA and Electronic Arts (EA) with several groups of plaintiffs, who claimed they should be compensated for the use of their names and likenesses in college sports-themed video games. Along with the NLRB decision that gave Northwestern football players the opportunity to unionize back in April, it is clear that the NCAA must now turn its face to the withering and hopefully unrelenting winds of fairness and freedom — two values the organization currently does not embrace.

However, the settlement amounts released over the past two weeks have been very disappointing, despite lawyer-speak that has painted the outcomes as victories for collegiate athletes.

Here are the numbers: EA settled with the plaintiffs, who were headlined by former college football players Sam Keller, Ryan Hart and Shawne Alston, and basketball player Ed O’Bannon, for $40 million on May 31. On Monday, the NCAA came to an agreement with these litigants for $20 million. After the lawyers — I’ll get to them later — take their sizeable cut, over 100,000 current and former Division I basketball and FBS football players are entitled to compensation packages ranging from $400 to $2,000. How this money is to be distributed is an entirely different story, but the money is now there — the proverbial pot of gold now sits at the end of the rainbow.

The problem is that $60 million is simply not enough; you would need to break into Fort Knox to get the bullion these players deserve. Understand this: EA Sports made close to $4 billion in the 2012-13 fiscal year, with the NCAA raking in over $900 million during the same period.

Furthermore, the NCAA Football video game series has brought in upwards of $1.3 billion in the U.S. alone since its inception in 1998 — for those mathematically challenged individuals like myself, that’s over $81 million per year for the last 17 iterations of the popular game. Eighty-one million dollars per year, and they can only give players $400 to $2,000? Give me a break.

As the numbers clearly indicate, $60 million of settlement money — some $20 million of which is slated to slither into the pockets of the plaintiffs’ lawyers — is a drop in the pan when compared to the ever-increasing lucrativeness of the college sports industry, which is now valued by some at $4 billion.

Let’s see the average payout for individual players for what it is: chump change, a bone that’s been gnawed on 10 times over. Similar to authoritarian, oil-rich sultans in the Middle East who placate their citizens’ demands for democracy with rent-funded subsidies, the NCAA and EA have given the players just enough to shut up.

The NCAA has lost sight of its sole mission: to further the interests of its athletes. This fact is illuminated by the very presence of these lawsuits — which indicate that athletes believe they are being cheated — and the meager sum Emmert and his legal cronies were willing to part with. For the NCAA, it is all about the money, baby.

And no amount of slap-on-the-wrist settlements is going to change that. This recent legal action tells me that the NCAA is not sorry it partnered with EA to create a college sports-themed video game and then dispossessed the players featured in said game of any of the profits — it is just sorry it got called out for it.

As long as the NCAA maintains the infallibility of its amateurism model, it will continue to settle and settle and settle without enacting any real, meaningful, long-lasting change that allows athletes to profit off their likenesses and performances. As I have explained previously, no other student on a college campus is restricted like the NCAA restricts its “student-athletes.”

Imagine if a Product Design major’s final project was used without his consent by Stanford, in a platform promoting the department. Wouldn’t that student want to be compensated for the use of his product? Or, what if the History department used the research paper of one of its students in its informational brochure? That student should be rewarded for the use of her intellectual property, right?

I apologize for these mundane examples, but this is essentially what happens in the college sport video game industry: Football and basketball players turn on their consoles and find themselves — sans their names — on the screen. Their positions played, jersey numbers, hometowns, eligibility year, on-field dress and physical attributes are the same, down to a T.

Yet, the NCAA or EA never attempted to compensate these athletes, who number in the hundreds of thousands, for the use of their likenesses in an incredibly popular and lucrative game. If that’s not unfair and unjust, I honestly do not know what is.

The greed of the NCAA in this case alone is unimaginably repulsive, and to settle for a mere $20 million when billions have been made off the games in question is mind-boggling. It just doesn’t make sense to me — but then again, the NCAA’s actions seldom do. In sum, it appears the recent settlement actions by the NCAA are preempting the court, forcing an unfavorable ruling down its throat; it admits no wrongdoing whatsoever and, as far as it is concerned, the amateurism model is still intact.

That is exactly what is so frustrating about all of these settlements and “victories” for collegiate athletes: unless the NCAA amends its bylaws and dissociates itself from the concept of amateurism, the legal action of today will mean next to nothing for the athletes of tomorrow.

Hopefully, more positives can come out of the current Ed O’Bannon lawsuit and the institutional changes proposed by the presidents of Pac-12 schools; the current amateurism model needs to be amended significantly or thrown out altogether, and if it takes the courts to force the NCAA to change, so be it.

You can certainly bet Stanford’s endowment that they are not going to alter the current framework — which makes a small number of people very, very rich — willingly or cooperatively. The courts have consistently ruled against the NCAA in the past several months, and I believe that the outlook regarding major change at the “non-profit” is somewhat positive. However, the NCAA will not go down without a lengthy and expensive fight, as we are seeing right now at the U.S. District Court in Oakland, where the O’Bannon trial is underway.

It is going to take a lot more than one, two or three storms to overrun the NCAA’s fortress.

Contact Cameron Miller at cmiller6 ‘at’ stanford.edu.

About Cameron Miller

Cameron Miller is a sports desk editor for The Stanford Daily's Vol. 245 and is the men's and women's golf writer. Cameron is also a Stanford student-athlete, competing on the cross country and track and field teams. He is originally from Bakersfield, California, but spends most of his time away from the Farm on the state's Central Coast. Contact him at cmiller6@stanford.edu.
  • Candid One

    Mr. Miller, your “mundane examples” need further background examination. Stanford has legal coverage of its myriad entanglements with greater society. Stanford’s Office of the General Counsel would be a good place to start since that’s where all LSJU legal concerns are refined. How much proprietary interest is involved in its official representation via its athletes? The SU name has legal liability that’s continually being refined by case law. A private university, while in the primary bulls eye for the NLRB’s decision, has less restraint in fending for itself than the public counterparts with their political parameters. SU faculty, researchers, staff, and students are operating under legal constraints of which some are unaware. Isn’t there much more to the world of a student athlete than the NCAA. Just asking.

  • hoghunt7

    I agree that EA profits off of their simulations of current players in the video games, and that it’s at least worth attempting a legal battle for the players. But, if it comes down to two scenarios, one including accurate depictions of players in the video games or one without, I am sure even the players would prefer the former.