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Critics say that the NCAA is behind the times when it comes to paying players and dealing with concussions. (Sue Ogrocki/The Associated Press)
Critics say that the NCAA is behind the times when it comes to paying players and dealing with concussions. (Sue Ogrocki/The Associated Press)

NCAA faces legal pressure over concussions, player payment Add to ...

After years of stalemate, uncertainty and bureaucratic delay, the National Collegiate Athletic Association is facing the possibility of seismic change on multiple fronts that could reshape the world of college sports.

A recent development in a landmark case made paying U.S. college athletes, which once seemed impossible, look more likely than ever.

Separately, lawyers for the NCAA have been in settlement talks to resolve claims by athletes that the organization was negligent in its handling of concussions. A settlement would represent a huge shift after years during which the NCAA rejected those claims.

And last month, the NCAA punished the University of Miami for major rules violations tied to a booster and improper payments, putting an end to one of the organization’s most tumultuous investigations. In the course of that case, it was revealed that NCAA officials had used improper methods to obtain information, prompting more calls for changes.

NCAA officials and their critics say that with the three issues coming to a head at once,– along with a substantial behind-the-scenes debate about how the organization should be restructured – a new era in American college athletics could be imminent.

“I don’t want to get melodramatic,” said Mark Emmert, the NCAA’s president, “but it seems to be a bit of a historic moment.”

The NCAA has been in gridlock for years, partly because of the challenges of accommodating the NCAA’s members, a large and unwieldy collection of universitieswith differing interests and wide disparities in wealth.

As even Emmert acknowledged, the membership has been “tied up in knots,” unable to reach consensus on important matters.

Gordon Gee, a former president of Ohio State, said that Emmert’s tenure, which dates to the fall of 2010, was likely to be remembered starkly.

“The Emmert era is marked in crisis,” Gee said. “The law of unintended consequences is playing out in the bureaucracy. The inability for people to really get onto the same page – I think all of that creates a crisis.”

But there are signs that the gridlock may be ending.

In January, two days have been set aside at the NCAA’s annual convention to discuss changes. Among the matters up for discussion will be whether universities with large and small budgets can coexist in the same division, a complex question at the heart of the future of college athletics.

Short of moving the so-called power conferences to a new division, one proposal would simply create different standards for them, in terms of how they are permitted to use their budgets and how they are policed.

“There’s a strong feeling we need to loosen up the reins of what the high-resource conferences can do for student athletes,” said Larry Scott, the commissioner of the Pac-12, one of the elite conferences. “There’s a strong sense that we need some major changes to enforcement and the way that works.”

On the enforcement front, the NCAA took a major step on Oct. 22 when it announced the results of its Miami investigation, which found that the university “lacked institutional control” over its men’s basketball and football programs and had failed to monitor a prominent booster.

After missteps by the NCAA’s enforcement staff in the case were disclosed, critics said the case was the latest example of the organization’s difficulties in enforcing rules fairly.

About a week after the results of the Miami investigation were announced, NCAA lawyers took part in the concussion settlement talks with lawyers for former players. That the NCAA was willing to discuss a settlement signalled a significant shift on the thorny issue of head injuries. The outcome of those talks has not been made public.

But perhaps the largest development was a judge’s ruling this month in the player payment case. The mixed ruling allows current and future men’s basketball and football players to proceed as a group with claims that the NCAA has kept them from profiting from the use of their likenesses in media such as video games and broadcasts.

However, the judge – Claudia Wilken of the United States District Court in Oakland, Calif. – also gave the NCAA a significant victory by determining that past athletes would have to sue on their own, and not as a group, if they wanted to proceed with retroactive likeness claims. Those claims, combined, could have resulted in enormous costs to the NCAA and its members.

A trial in the case is scheduled for June, and a potential judgment in favour of the players, which would be subject to appeals, could upend the business model for college athletics.

“If you are looking at a reshaped NCAA, this is probably one of the best outcomes to set that possibility up,” said Michael Hausfeld, a lawyer for the lead plaintiff, Ed O’Bannon, and other athletes.

Despite fevered speculation that the next generation of college athletes might be paid, NCAA officials, at least publicly, maintain that they are not planning for that possibility. For instance,The issue is not expected to be on the agenda of the overhaul discussion at the January meetings.

“Our committee is not wrestling with that,” said Nathan Hatch, the chairman of the NCAA committee assigned to examine potential structural changes to the organization. Hatch, the president of Wake Forest University, called it a “very important issue” but said the majority of college officials had no appetite for making some sports “semi-professional.”“It is a very slippery slope to begin paying athletes as employees,” Hatch said. “If you do that, it seems to me you further erode any notion of being a student athlete.”

Still, some critics say that the NCAA is behind the times and that the notion of amateurism may have already slipped away.

Elizabeth Altmaier, a professor at Iowa who served on a number of NCAA panels on commercialism as a faculty athletics representative, said she believed there needed to be a way for college athletes to get more than scholarships.

“People who say, in a very superior manner, that these kids had a college education and that’s sufficient remuneration are naïve at best, and blind at worst, to the realities of being a student athlete in a Division I institution,” Altmaier said.

That resonates with athletes like O’Bannon, who led the UCLA Bruins to the men’s basketball championship in 1995 and now sells cars in Las Vegas. He became involved in the case when he saw himself portrayed in a video game and realized that others were making money off it.

O’Bannon said that he had “trained myself to expect anything,” adding: “My biggest thing was to always kind of have the thought process of win or lose, I’ve got to get up in the next morning and sell cars. That’s the bottom line. That’s where my life is.”

When the judge’s ruling came on Nov. 8, a key moment in the case, O’Bannon said, his reaction was simple. “What’s our next step?” he said. He did not sell any cars that day, but he sold a Camry the next.

 

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