There was no smoking gun in the cross-examination of NCAA president Mark Emmert at Thursday’s O’Bannon trial. There was no single piece of evidence, as there was in previous days, to put another dent in the NCAA’s model of amateurism. Rather, O’Bannon attorney Bill Isaacson spent hours chipping at the NCAA’s definition of amateurism, a definition it says it has a duty to uphold.
The fall of amateurism as the NCAA knows it
Mark Emmert’s testimony showed that amateurism is nothing more than whatever the institution in power decides it is.
By the time Isaacson was done, the court record contained what everyone, including Emmert, already knew: amateurism is whatever the NCAA says it is.
Judge Claudia Wilken already knew that. She told the NCAA before the trial that she didn’t think “amateurism is going to be a useful word here.” But the organization’s only hope is to convince Wilken that its tradition is sacred. And regardless of what Wilken thinks, it appears the NCAA is going to live by amateurism or die trying.
But the NCAA isn’t at trial to uphold a principle that’s been passed down for generations. This is about maintaining control, as former NCAA president Walter Byers wrote.
Byers: "This is not about amateurism. This is about who controls negotiations and gets the money." Emmert says he disagrees w/ statement.
— Andy Staples (@Andy_Staples) June 19, 2014 From its origin, amateurism has been rooted in exploitation. It began in the mid-1800s because rich people in England didn’t want to have to play sports with working class people. Their solution? Make it so the rules don’t allow athletes to get paid, and therefore, the working class people wouldn’t be able to support themselves if they play.
The definition has changed, and it still varies among numerous organizations. Even the NCAA’s definition has changed. The organization didn’t even allow athletic scholarships until the early 1950s, because that was seen as a payment. So how did they get around allowing that payment to be issued? Simple. They said it wasn’t one.
That strategy has worked for the NCAA in other scenarios, too. Emmert said at trial that the $2,000 stipend he proposed athletes receive is not a stipend. Before that, the organization settled a case that will give athletes money for their likenesses being used in video games. That means current athletes will received payment from the NCAA, but they’ll still stay eligible. Why? Let NCAA chief legal officer Donald Remy explain:
"In no event do we consider this settlement pay for athletics performance," Remy said.
The payment to players is not a payment. This particular payment just happens to fall under the blanket of amateurism.
Putting a line between what counts as amateur and what doesn’t would restrict the NCAA from making changes in the future that are necessary to help athletic departments’ commercial exploits.
Emmert: "The line of demarcation is a difficult one to determine." -- Regarding amateurism.
— Andy Staples (@Andy_Staples) June 19, 2014 Perhaps “South Park” put it best. From the show:
Mother of prospective “athlete”: So you would make money off my child? That doesn’t seem fair.
CBAA: I don’t make the rules, ma’am. I just think them up and write them down.
Mother: Can’t you change the rules?
CBAA: Ma’am, the Crack Baby Athletic Association is a storied franchise. It was founded over 12 days ago with a firm ethical code that strictly states benefits to players is detrimental to their well-being.
This trial has shown that the NCAA can change the rules whenever it wants to. There is no all-ruling amateurism czar who can strike down college sports if athletes get paid.
As Byers wrote, it all comes back to control. The NCAA is paying millions upon millions of dollars to maintain the control it has over athletes, in order to make sure not a cent of potential endorsement money leaves the system. In as patronizing a way as possible, the NCAA claims that it is the one protecting these athletes from “commercial exploitation,” insinuating that athletes who can’t afford to go out to dinner would endanger themselves by allowing people to pay them for their talents.
Wilken sees through that.
Judge asks Emmert about athletes pitching products. "Is it exploitation of them or something you don’t want?"
— Ben Strauss (@bstrauss1) June 19, 2014 That’s what the trial comes down to. Paying players isn’t an abomination of some sacred principle; it’s just something the NCAA doesn’t want. That, in itself, is not an appropriate legal defense of a business model, and it’s why the NCAA’s current model will go crashing down.
When it does, there will be a new system in place that will allow athletes to earn degrees and make money for what they do well, just like any other students. Maybe we can call that amateurism, too.
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