Playing the numbers game


“When you hear athletic directors talk about character and academics and integrity, none of that really matters. Nobody has ever been fired for those things. They get fired for losing.”

— Mack Brown

Former Texas coach

“The NCAA plays a critical role in the maintenance of a revered tradition of amateurism in college sports.”

— Justice John Paul Stevens

NCAA v. Board of Regents, 1984

The beginning of Ohio State’s defense of their football national championship is just a bit over a week away. If you’re looking to buy Buckeye jerseys, however, you’re going to have to get them with No. 1 or No. 15 emblazoned on the back. The reason stems from a complex struggle between amateur athletes and the schools that profit from their athletic prowess.

College football isn’t just big business, college football is HUGE business. Last December, Forbes magazine provided information on the top 20 most profitable college programs. The list, which was produced after Ohio State made the inaugural college football playoff, but before it won the national championship, showed that OSU was the eighth most profitable team in college football.

According to Forbes, the football Buckeyes are valued at $87 million, with $66 million in revenue and a $39 million profit. That didn’t include the $6 million that went to the Big Ten for OSU’s trip to the playoff. The most valuable team on Forbes’ list, the Texas Longhorns, made $74 million in profit. In total, Forbes reported that the top 20 teams generated $1.42 billion in revenue in 2014 alone. ESPN is currently paying $7.3 billion to broadcast college games for 12 years.

For their part, many of the players get a free education and other benefits related to travel, meals and medical care. But the student athletes see the money that is being generated and wonder why they don’t get a bigger piece of that pie. Some of that wondering has turned to legal action in recent years.

The decision on Buckeye jersey numbers is most closely connected to the pending lawsuit in O’Bannon v. NCAA. In that suit, former college basketball star Ed O’Bannon is suing the NCAA in a class-action lawsuit claiming that the organization profited from the names and likenesses of college football and basketball players without compensating those players in violation of federal antitrust laws.

In his lawsuit, O’Bannon claimed that the NCAA licensed video games and television broadcasts using the names and images of college players. Unlike NFL or NBA players who profit through agreements with their players’ associations, licensing costs go directly to the NCAA in college athletics.

The federal court agreed with O’Bannon, ruling in his favor in August 2014 and requiring colleges to pay a $5,000 annual stipend to athletes whose likenesses were used in video games and broadcasts, holding those stipends until their college careers were over. The ruling was to have taken effect on Aug. 1 of this year.

The NCAA appealed and, when a ruling on that appeal had not been made by the end of July, the NCAA asked the federal appeals court to delay the effective date of the stipend ruling. The appeals court did so on July 31 and the entire case now remains on hold awaiting a ruling on the appeal and possible further appeals.

Thus, the quandary that the Bucks now find themselves in with jersey numbers. If they sell jerseys with Cardale Jones’ No. 12 on them, even with no name on the back, can they be said to have profited off of his likeness? And if O’Bannon prevails in the appeal, will they have to pay Jones for profiting off of him?

To guard against that, OSU has carefully chosen numbers 1 and 15 as the only numbers to sell this year. In so doing, they can claim that the No. 1 is for their national championship and the No. 15 is for the current year. But it is surely no accident that those numbers are worn by Braxton Miller and Ezekiel Elliott, among the team’s most popular players.

As an OSU alum, I’ll be rooting hard for the Buckeyes to repeat (none of my pro teams have won a championship in my lifetime, but the Bucks have picked up two since I got my law degree there), but surely OSU will be rooting hard for the NCAA to prevail against Ed O’Bannon.

David Hejmanowski is the judge of the Probate/Juvenile Division of Delaware County Common Pleas Court. Despite Buffalo’s famous winters, the last snow day he had as a kid was in the fourth grade.

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