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Ed O'Bannon Case Ruling: Judge Claudia Wilken's Decision Is Completely Reasonable. Will the NCAA Follow Suit?

You don't have to think that college athletes should be millionaires before they graduate to agree with Wilken's thoughtful decision

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Jamie Squire

You've almost certainly heard by now that the NCAA "lost" the Ed O'Bannon case. And it's right there in the Judge Claudia Wilken's ruling: "The clerk shall enter judgment in favor of the Plaintiff class. Plaintiffs shall recover their costs from the NCAA."

To be sure, it's not the ruling that the NCAA wanted. Wilken largely found what the plaintiffs wanted her to find, particularly in the crucial "findings of fact" section of the decision, which is essentially bulletproof on appeal. There's really not a universe in which you can declare that the Association "won" the case.

But, for those of us who are looking for a third way between those who are indifferent to the fact that athletics scholarships don't cover the full cost of attendance and those who want to make some athletes millionaires before they leave college at the expense of other athletes, Judge Wilken's ruling is actually a reasonable compromise. The ruling uses the word "limited" 26 times, often in reference to "limited and equal shares" that players can receive for their names, images and likenesses.

In short, the NCAA can continue to bar student athletes from endorsement deals. It can limit the value of stipends to athletes and cap the amount of money that could be deposited into trusts that athletes would receive after they graduate from college. There's not a lot here to get worked up about unless you are absolutely and completely appalled by the thought of giving players one red cent more than they get now -- or, alternatively, unless you want to professionalize college sports.

Here's the important part of the judge's ruling, where she essentially spells out what will be required of the NCAA:

First, the NCAA could permit FBS football and Division I basketball schools to award stipends to student-athletes up to the full cost of attendance, as that term is defined in the NCAA’s bylaws, to make up for any shortfall in its grants-in-aid. Second, the NCAA could permit its schools to hold in trust limited and equal shares of its licensing revenue to be distributed to its student-athletes after they leave college or their eligibility expires. The NCAA could also prohibit schools from funding the stipends or payments held in trust with anything other than revenue generated from the use of the student-athletes’ own names, images, and likenesses.

Given the opportunity to upend the economics of college football, Wilken essentially found a wise and moderate tweak. Athletes can receive funds from their names, images and likenesses up to the cost of attendance -- helping to achieve a goal that even some of us in the less-eager-to-pay camp share. They can also receive additional earnings from those sources, but only in the form of a trust that would paid out after they graduate (or leave for the pros).

The NCAA can cap the amount put into that trust at $5,000 a year in today's dollars. Players on each team would get an equal share of the money. And schools don't have to give the players anything for their names, images and likenesses if they don't want to. The market will play out, as supporters of paying athletes have pushed for all along.

The decision is not perfect. I'm not sure I completely agree with Wilken's finding of facts, though I don't think they're so egregiously wrong that they'll meet the standard for overturning them on appeal (a standard that some lawyers on Twitter helped me understand). And she doesn't seem to have the best command of how college sports works, given that she says the ruling "will not take effect until the start of next FBS football and Division I basketball recruiting cycle," as if that's a distinct period of time. That's probably going to have to be clarified.

The NCAA doesn't pay me to provide legal advice, or any kind of advice generally, so as someone who has spoken out about the importance of amateurism, I'll issue a challenge to the Association: Don't appeal Judge Wilken's ruling. Mark Emmert and the major conference commissioners have been talking for weeks about how they want to make the lives of student athletes better, and this is the perfect opportunity for them to act on their words.

Judge Wilken has shown herself to be a reasonable person capable of settling on a fair and just outcome to this case. It's time for Emmert and the commissioners to prove that they are as thoughtful and prudent as she is.

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The ruling, in case you want to read the whole thing (via):

Wilken NCAA Order