I am not a sports lawyer.  Anything I could charge $1000/hour for is probably illegal.  But there are two lawsuits pending that I felt you should know about: one, involving the NFL, is to decide whether the 32 franchises are 32 separate businesses or 1 business with 32 branches; the second, involving former UCLA star Ed O’Bannon, is to decide if the NCAA should be splitting their revenue with their former players who are no-longer-amateur. 

I can’t address the legal merits of either case, I haven’t researched every Supreme Court Justice’s voting record to determine who’s likely to support the NFL, I don’t have any prediction as to how these cases will actually turn out; but here’s what I do know: the NCAA and NFL are missing HUGE opportunities by going forward with these cases. 

The NFL’s case. 

At first glance it appears to be a typical frivolous sour grapes lawsuit- a company, American Needle Inc, sued the NFL because the NFL granted exclusive merchandise rights to Reebok.  My first thought was ‘what’s next, an ex- suing you because you broke up with her?’  It seemed natural to me that the NFL as a league could decide who to do merchandising through, just as it seemed logical that the league should be negotiating something like TV contracts as one body.  It just wouldn’t make sense for CBS and Fox to have to negotiate separately with 32 different teams, if that were the case we’d just end up with one team like the Cowboys on every week…oh we already do?  Well either way there are just things that make sense for the NFL to act as one body on. 

But those things were never really in danger; the NFL won both lower court decisions and their ability to grant exclusive rights to merch is generally accepted.  For some inexplicable reason ANI decided to push this case up to the Supreme Court but their request would have been ignored had the NFL not drunkenly stumbled out of the bar and said ‘Ill be your huckleberry.’  Again, the NFL had won- game over, man, game over- but rather than take their chips and go home, instead they decided to push all their chips in and push for a Supreme Court decision on their rights as a monopoly once and for all.

And here’s where the problem begins.  If they Supreme Court says the NFL is 32 separate businesses then Merch and TV contracts go to hell.  The NFL becomes messy; every team sets their own rules, every jersey is designed differently, etc.  That “No” vote on the NFL’s monopoly says Roger Goodell has no real power.  But if the Supreme Court says “Yes”, then we’re all screwed.  Fans, players, everyone but the owners.  A high-court decision that gives the NFL full immunity means that free agency is gone, means that contract negotiations are gone.  It means that the NFL is the all-powerful ruler and the players merely servants.  I know the ‘Millionaires-vs.-Billionaires’ fight is a hard one to care about but think about this: since Reebok took over nine years ago the cost of a jersey has risen 60%.  Monopolies aren’t fair- there’s a reason they’re illegal.  So if you’re Matt Ryan and the NFL says ‘here’s what you’re worth, take it or leave it,’ what do you do?

Enter the UFL.  4 franchises, one of them run by Dennis Green.  This would be a punchline were it not for two things- 1) Mike Vick and 2) this lawsuit.  Vick will play in the UFL, mark my words.  Maybe as penance, maybe as an audition, maybe just as a sideshow, but it is his best and only option.  But what if the NFL, backed by 9 people in black robes, decides that as a monopoly they won’t allow free agency or contract disputes?  What if they become so power hungry that the UFL can pay players more than the NFL?  The AFL is long gone but the lessons are lingering- if you pay, they will play.  Since the merger, nothing has (or will) ever be able to challenge the NFL, unless the NFL forgets those lessons. 

There needs to be a compromise- the NFL is one body for contracts with companies, but 32 bodies for contracts with players; and that compromise was sitting on the table.  Instead the NFL decided to push for more power, and like something out of a children’s fable, that quest for power could prove to be their undoing. 

The NCAA

The NCAA too has allowed a lawsuit to pop up that they never should have allowed to happen.  For years the NCAA has exploited student-athletes and we’ve made our peace with it- they get free college, the schools get millions and millions of dollars.  But now there’s a twist: what happens when they’re no longer getting free college?  What if you’re a former college superstar, like say Ed O’Bannon, and for a decade-and-a-half the NCAA has still been making money off of you?  Shouldn’t you- with your amateur status long gone- be entitled to it?  When Kevin Love got put on the cover of EA Sports after he left school, he got money; so when EA Sports puts you in their game after you too have left, shouldn’t you too get paid? 

There are some heavy hitters on this case- not one but two of the biggest law firms in the country are representing every former NCAA player in a case to get back money for the years of commercials, jerseys, games, etc. that they should get royalties from.  Rest assured the NCAA is going to pay.

But here’s what they’re going to miss: turn this into an opportunity.  This lawsuit is not about current players getting paid.  That suit has come and gone repeatedly.  This instead is about ex-players who are still being used.  But who gets used, and how much, seems like such a difficult debate that no one- not the NCAA, not the players- no one wants that debate.  So why not make this deal: we’ll split the money evenly with every former player from now on.  Yes it cuts NCAA revenue in half theoretically but it also allows them to come out and really use old players.  Ed O’Bannon’s character in EA sports isn’t allowed to use his name, but if you settle this suit you can come right out and pimp every old player.  Make more jerseys, make more stars.  Make the NCAA relevant again. 

And here’s the real kicker- make the payments to players be based on how many years they played in college.  Now more than ever you’ve got guys skipping college altogether in order to get paid.  Well what if you were able to say to them: if you play in the NCAA for this year, you will then qualify for residuals for life.  Heck stay your sophomore year and you have doubled your NCAA pension check.  If you pull a Tim Duncan, you will now have 4 years of NCAA, and that means 4 times the paychecks …for life!  This only really effects NCAA football and basketball players, I’m not expecting swimming to get a check. 

It settles the argument about them getting paid (they just aren’t getting paid WHILE they’re in college), it lures more players to the NCAA and keeps them there longer.  Offering a settlement might also help avoid having to pay the back residuals, and considering how long they’ve been exploiting ex-players that back-payment could bankrupt the NCAA. 

If you really want to keep your credibility, NCAA, you should be looking for ways to keep kids in school longer.  Who knows, with this motivation you just might be helping more of them become lawyers, and the ways things are looking- you’re gonna need ‘em.