O’Bannon’s victory is nowhere near enough to fix the NCAA

As news of O’Bannon judge Claudia Wilken’s decision against the NCAA spread Friday night, the plaintiffs and their supporters issued statement after statement lauding their historic win over the NCAA as a total success.

O’Bannon called it a “game-changer.” One of his attorneys called it “reasonable but significant.” Activist groups like the College Athletes Players Association and Taylor Branch and many fans and former players celebrated the end of an injustice. Why?

Well, any time you can claim a technical win over the NCAA in court, you do it. But also because when you look at this ruling without nuance, there’s something in there that’s never been done before: athletes are getting paid.

That — athletes getting “paid” in a way that isn’t part of a scholarship — has always been the primary public battle ground. And now some athletes will get $20,000 once they leave college, which is certainly better than the nothing they get right now.

But there’s more to it than that, and when someone decides $5,000 per year (in a trust, no less) isn’t enough, this will be back in court, which is a disservice to everyone involved. The players still need a new system. Not necessarily an open market, but one that can change with the times.

The judge could’ve declared the NCAA’s current measures too restrictive, then left the door open for negotiations — a solution that would have given players an actual voice. Instead, she created her own salary cap based on what she thought was reasonable.

As a former lawyer for the NFL players said, Wilken created a favorable collective bargaining agreement for the NCAA without forcing the organization to bargain.

We still don’t know whether the $5,000 cap is reasonable, other than Wilken’s saying NCAA officials wouldn’t have a problem with athletes receiving a little bit of money. There’s an easy fix to that: Why not tell the NCAA and its athletes to work together to set a cap they think is relevant, and that can change through time?

Maybe the initial cap would have been $5,000. Maybe it would have been $2,000, but not part of a trust. Maybe it would have been $10,000. We’ll never know, because the NCAA still won’t be forced to let us know, and when the power-conference schools all offer the $5,000 limit to recruits, we’ll have the same argument we’re having now about how much players are worth.

While the NCAA lost, all Wilken really did was force the NCAA to offer something — name, image, likeness (NIL) payments — that it was probably already going to offer a few years down the road anyway. And she did so while still allowing the organization to keep nearly as much control as it held before, and far more than any other major sports association.

If the NCAA still wants to pretend that a recruit receiving a free meal on an unofficial visit to Texas is the reason for that player choosing Texas over Troy, it’s allowed to. If it wants to keep calling boosters evil under the guise of competitive balance, it can do that. And not only did Wilken rule that these rules aren’t unnecessarily restrictive, she also won’t make the NCAA justify them through bargaining.

After reading the full opinion, that seems especially odd, since Wilken spent a lot of time bashing the NCAA’s justifications for its rules. She made clear that “maintaining amateurism” will never be an acceptable defense in court, and she rejected the idea that people watch college sports because the athletes aren’t paid — the market is for college sports, not amateur sports.

But Wilken also bought into the NCAA’s assertion that athletes receiving too much money would corrupt the organization’s mission. If we assume that is true, that athletes receiving additional compensation when they’re in school would corrupt them as students, Wilken made the mistake of concluding what she determined to be the right amount of money, not having any way to know if she was accurate and not providing a path for the rules to change as everyone tries to figure out the right balance.

This is by no means the end of the NCAA’s legal battles. Wilken setting her own arbitrary cap with no call for bargaining basically ensures that, and there’s the whole separate case led by Jeffrey Kessler, which aims to do far more than the O’Bannon case did and completely open up the market. We’ll need to see that case through before we can truly call the NCAA safe.

As the dust settles from the first major player rights ruling, despite a technical loss, it’s business as usual for the NCAA. Yes, athletes will get paid, and yes, the NCAA was told it violated antitrust law. But without the dissolution of the current system that keeps all control away from the athletes, it’s tough to say that a lot really changed.