Player compensation lawsuit vs. NCAA could usher in new round of conference realignment
Those in the know believe the NCAA is headed for a loss in this soon-to-be-decided case
In a Northern California district court, conference realignment may take an urgent, unexpected turn. The ongoing Alston v. NCAA trial seeks an injunction against current NCAA scholarship limitations (room, board, books, tuition, cost of attendance). This is the mother of all pay-for-play lawsuits to date in that it basically seeks to end the longstanding "collegiate model."
In their closing arguments last week, the plaintiffs suggested that conferences "permit the individual conferences to make their own determinations" in compensating players.
In response, former Congressman Tom McMillen, the leader of a Division I athletic directors organization, said leaving such decisions to the conferences "would be the Wild West."
Notre Dame athletic director Jack Swarbrick took it to another level.
"It would be fascinating," Swarbrick told CBS Sports. "It would be a disaster … but fascinating. I think there is a very significant chance that ruling would produce a new wave of conference realignment."
Realignment is a hot-button term in college athletics that should get the attention of administrators and fans alike. Tearing apart conferences for the purpose of increased revenue began in earnest 15 years ago. That's when the ACC began a ruthless expansion that eventually killed the Big East and a certain level of gentlemanly conduct among commissioners.
Since then, traditional rivalries have been ripped asunder while conferences organized around a membership that looked most desirable to networks that pay the highest rights fees.
Now, everything is on the table again in the name of money if the plaintiffs -- a former West Virginia running back and former California center -- prevail.
Using Swarbrick's suggestion, if the Alston plaintiffs win, conferences could reorganize around like-minded schools with the same spending philosophy toward athletes if scholarship restrictions go away.
The SEC would conceivably be all in, willing to spend whatever it would take to compensate players and win them away from rivals. The likes of Stanford and Duke? Not so much.
How would that look?
Almost 3 ½ years ago,. As one powerful administrator suggested, you could even envision a certain payback headed the ACC's way.
If the plaintiffs win and realignment strikes away, Clemson and Florida State could conceivably lean more toward the SEC's spending philosophy than that of the ACC. Those two football programs look more like the SEC's version of traditional Southern powerhouse.
"Most of the rest of the ACC would say no [to that spending philosophy]," explained an administrator who did not wish to be identified. "It's less economic than it is cultural. … There's a chance this [trial] will be a catalyst for that."
Judge Claudia Wilken will decide the non-jury trial that seeks injunctive -- not financial -- relief. Wilken was in charge of the landmark O'Bannon v. NCAA case when the NCAA in 2014 was found to be in violation of anti-trust laws in regards to players' name, image and likeness.
Out of that decision came the cost of attendance stipend that expanded the definition of a full scholarship. The athletes got that extra money because they were … athletes.
So how far are we from further compensation being allowed?
One Power Five commissioner has already told CBS Sports of the Alston trial: "I think we're going to lose."
While the NCAA would likely appeal all the way to the Supreme Court, it doesn't mean the issue would be dead. In fact, experts agree players will eventually be further compensated in some form -- if not through this suit, then through others that are waiting in the pipeline.
But does that hasten the next wave of realignment that is hovering over the sport one way or another?
"I thought, at the time, that the conference realignments were fragile, that these [conferences] would break down," said professor Joel Maxcy, who runs Drexel University's Center for Sport Management.
There has long been a supposition that the highest level of college football would eventually settle around so-called "super conferences." It can be argued we're already there with the SEC, ACC and Big Ten each made up of 14 members.
Former SEC commissioner Mike Slive once said that any number more than 14 becomes too unwieldy. With economic realities changing, there may be no choice but to split into four 16-team divisions at the highest level.
"I think it goes to a 64-team super division," said veteran media consultant Chris Bevilacqua. "I think there's going to be realignment. The driver of realignment isn't going to be free market of player services [via the Alston trial], but it will be when the next TV deals come up."
That will be around 2024 or 2025. It's generally accepted there will be some sort realignment when media contracts expire and technological advances are sorted out.
In other words, do any of the digital giants summed up by the acronym FANG (Facebook, Amazon, Netflix, Google) get involved to push rights fees beyond the financial model supported by linear cable and over-the-air broadcast television?
Power Five member Big 12 -- the only Power Five conference without its own network -- is already showing games on Facebook Live. The question is whether player compensation is decided in the courts before current network contracts expire, spurring a sooner-than-expected upheaval.
"Most conferences, excluding the SEC, I'm not sure could gain consensus around a model [of compensation]," Swarbrick said.
Southern Utah University economics professor Dave Berri countered, "Is that [realignment] supposed to be a bad thing? What difference does it make if they realign again? If the argument is realignment ends classic rivalries, I grew up watching Oklahoma and Nebraska play every year. Apparently, we've all moved on."
Judge Wilken has indicated in the proceedings she might be agreeable to conferences finding compensation levels on their own.
The NCAA continues to assert athletics are merely a component of an overarching educational experience. The Alston plaintiffs compete for athletes in several ways -- highly paid coaches, palatial facilities -- but none of that money goes to directly to the athletes.
"One of my favorite stories about the ways they spend money is the Louisville facility has retinal scanners," Berri said. "You know they did that because they could. It doesn't make any difference whatsoever to anybody. We have this pool of money available, and we just arbitrarily decide we're not going to pay the people that are generating that."
… and putting their bodies on the line doing it. Since mid-June, three college football players have died. A third at Tennessee State underwent surgery after an apparent head injury suffered while playing against Vanderbilt.
"They're after a total free market," Bevilacqua said of the plaintiffs. "There's a lot of good models out there with pro sports. Half the revenue goes to labor. If you're talking about Power Five, college sports is about the size of the NBA, $8 billion a year. The NBA is paying their players $4 billion out of the $8 billion. These [college] guys are paid a scholarship. At some point, you make a deal and say, 'I can't give you 50 percent but, you know, I'll give you 10 or 15 percent.' That's $1 billion dollars."
The NCAA has been dead set against even a penny more than it is currently allowing, even though that treasured collegiate model has been under fire. The black market created by that collegiate model to compensate players is blamed for the.
Since 2015, players have been paid that cost of attendance. That once-taboo allowance is available only to athletes at universities, not the general student population, and can be logically tied to athletic performance. Elsewhere, compensation takes the form of bowl gifts that are capped at $550. Schools are allowed to pay insurance premiums of draft prospects that reach the upper five figures.
Oklahoma quarterback Kyler Murray is the highest-paid player in college sports, having signed a $4.6 million deal with the Oakland Athletics. NCAA rules allow a player to turn pro in one sport while retaining college eligibility in another.
It's hard, then, to rally around the NCAA assertion that paying players would tear locker rooms. Murray is not only Oklahoma's most valuable player, he's considered a top Heisman Trophy candidate.
The plaintiffs are arguing, since each school is held to more or less the same scholarship offering, athletes are being denied what Sports Illustrated legal analyst Michael McCann called "the full benefits of competition for their services."
The NCAA has argued in this -- and other trials – that paying athletes would turn off the average fan. Ratings continue to increase. Meanwhile, college football attendance hit an all-time high in 2013 (50.3 million). It had dropped lately because of.
"[The NCAA is] playing the long game and hanging their hat on amateurism," Bevilacqua said. "Each time Nick Saban gets $10 million a year and an athlete gets [only] a scholarship, it further undercuts their argument.
"They're going to get routed. They're going to lose. If I was them, I would have cut a deal [with the plaintiffs] a long time ago."
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