LaGarrette Blount, Video Games, and Athletes’ Rights

We welcome a guest post today from Michael Oriard, whose most recent book is Bowled Over: Big-Time College Football from the Sixties to the BCS Era, which we will publish this November. He recently blogged about the scholarly obligation of the “scholar-athlete” arrangement in college sports over at the New York Times’ college sports blog, The Quad. In this post, Oriard discusses recent conflicts in college sports that highlight the disparity between who works and who benefits (and how much) in the world of big-time college athletics. –ellen

Amidst all of the editorials and blog commentaries on the LaGarrette Blount episode, an important point was missing. Regarding whether the punishment fit the crime, a minority thought the full-year suspension excessive, but most endorsed it. No matter what Brian Hout said to Blount, the punch was excessive, as innumerable replays made clear. It’s worth pondering those replays, however, as well as the action replayed. To determine the heinousness of a crime, we sometimes distinguish between crimes against persons and crimes against property. Here we have something new: a crime against a brand.

The headline in the Portland Oregonian on the day before Oregon’s second game, against Purdue, read “UO Brand Loses Some of Its Luster.” In the moments immediately following Blount’s punch, ESPN’s Bob Davie also commented on the misfortune of the incident after the University of Oregon had worked so hard in marketing its football program. Try a thought experiment: had Blount punched Hout in a game that was not televised, and the punch could not be replayed, would the magnitude of the crime, and thus the appropriate magnitude of the punishment, be changed in your mind? Would it have been a simple act of unsportsmanship, worthy of a three- or four-game suspension? Was his real crime in punching Hout his embarrassment of the University of Oregon rather than his assault on another player or violation of the rules of good sport?

I think the answer is, yes. And to repair its reputation the University acted immediately, decisively, and severely. We don’t tolerate such actions, says the University. Not: one of our players screwed up and we need to work with him to help straighten him out. Blount follows NFL players Michael Vick, Plaxico Burress, and Donte Stallworth in finding himself subject to the discipline of his team or league, apart from the legal authorities. With two crucial differences: Blount has no Players Association to plead his case, and Blount has not been a beneficiary of the sport he defiled in the same way that the NFL players have been.

That second point requires some explaining. Michael Vick was making millions when he was arrested for doing something horrific, and those millions derive from the enormous success of the NFL brand. His action tarnished the brand, and it was appropriate that he lost the millions that the brand made possible for him, and that those who manage the brand (the commission and the team owners) should have the power to determine whether or not he can play again without further damage to the brand.

Think of LaGarrette Blount in this context. He damaged the UO brand and is paying a stiff penalty: suspension for a year, his final season, and therefore perhaps irreparable damage to his opportunity to cash in on NFL millions. But unlike Michael Vick, Blount has not been benefiting from the brand that he tarnished. UO football generated $21.5 million in revenue in the most recent year reported, but not a dime of it went to LaGarrette Blount beyond the cost of his athletic scholarship.

Once the reaction to the punch itself settles down, the Blount incident thus raises yet again the issue of “athletes’ rights.” It follows what seems to be off-season news of a very different sort: the lawsuits filed in July against the NCAA by former UCLA basketball player Ed O’Bannon and against EA Sports by former quarterbacks Sam Keller (Arizona State and Nebraska) and Ryan Hart (Rutgers) over the use of their images without compensation. Someday, a suit of this sort (perhaps one of these) is going to demolish the basic structure of college athletics.

As college amateurs, O’Bannon, Keller, and Hart were of course forbidden to profit from marketing their likenesses, a restraint of course not shared by their institutions, the NCAA, or EA Sports. And of course their coaches can earn millions beyond their institutional salaries. But don’t athletes have rights, too? The two lawsuits are the latest skirmishes in a sporadic campaign for athletes’ rights that dates back to the early 1980s.

Last January, in his State of the Association address at the NCAA convention, Myles Brand expressed concern about the potential “exploitation” of student-athletes for marketing purposes. By “exploitation,” he meant using their images in a way that implied their endorsement of the product, not using their images without compensating them. To the NCAA, compensation is unthinkable. To at least some athletes in programs that generate two, three, or four millions for their coaches and tens of millions for their universities, compensation has increasingly become very thinkable indeed.

In January 2008, the NCAA agreed to a settlement in another lawsuit, White v. NCAA, that could have led to athletes’ right to negotiate their salaries. The suit specifically addressed the NCAA’s limit on athletic scholarships to an amount below the full Cost of Attendance (COA) as calculated by financial aid officers—for travel and living expenses beyond basic board, room and books—which was about $2,500 more than the NCAA allowed. But if the litigants had won the right to the full COA, the precedent could have led to future litigants winning the right to negotiate their full market value. The text of the lawsuit included this statement: “While big-time college sports have become a huge commercial enterprise generating billions in annual revenues, the NCAA and its member institutions do not allow student athletes the share of the revenues that they would obtain in a more competitive market.” The full COA would not do so either.

The potential blow to the current system of college sports was enormous, yet media attention was remarkably meager. The NCAA had not fared well in court. In 1984, it lost its television monopoly for football on anti-trust grounds. In 1999, it lost an attempt to limit the salaries of “restricted-earnings coaches” on anti-trust grounds. The White case seemed certain to be another defeat. The litigants, however, settled in order to avoid years of appeals; the NCAA settled to avoid a potential catastrophe. Groups such as the now-defunct Center for Athletes’ Rights and Education (CARE) and the National College Players Association (which backed White v. NCAA) have been working with meager resources since the early 1980s to secure athletes some basic employment rights.

Although top coaches’ salaries have increased from $25,000 or $30,000 in the 1960s to $3 million or more today, athletes have not received a raise in over 50 years. Thus the NCAA and its member institutions are increasingly vulnerable to legal challenge. Athletes have lacked the organization and the resources to sustain a prolonged lawsuit, but their case gets stronger every time a top football program negotiates a coach’s contract or a conference creates its own TV network or signs a new deal with an existing one.

The NCAA can likely cope with the lawsuit against EA Sports by forbidding the use of recognizable player images. The O’Bannon suit may prove trickier, because it involves the highlight films that the NCAA and its member institutions market without compensating the players who perform the highlights. What’s most clear is that, whether here or in future lawsuits, the NCAA will be profoundly vulnerable.

This season is the first for the SEC under its new television contracts which will distribute $205 million among its 12 institutions, about $5 million more per school than under its previous agreements. Of course, not a dime will go to any of the athletes. Another recent off-season story describes what deal the players can get: at Michigan under new coach Rich Rodriquez, mandatory 9-hour workouts on Sundays following games, the one day of the week when “student-athletes” can catch up on homework.

The LaGarrette Blount incident can be another reminder that big-time college football puts “student-athletes” in the role of professionals but without the benefits and rights of professionals. The astonishing growth of revenues at a handful of top football programs, the disparity between coaches’ and athletes’ compensation throughout the Football Bowl Subdivision, and the shrinking opportunities to get a real education as compensation create an unsustainable system. The issue of athletes’ rights will not go away.

Michael Oriard
Oregon State University