NCAA D-I board chair doesn't want O'Bannon case appealed to Supreme Court

NCAA Division I board of directors chairman Harris Pastides said he is not inclined to have the NCAA try to get the US Supreme Court to hear the Ed O'Bannon case if the 9th US Circuit Court of Appeals rules unfavorably against the association.

Jon Solomon
May 30, 2015

DESTIN, Fla. -- NCAA Division I board of directors chairman Harris Pastides said he is not inclined to have the NCAA try to get the US Supreme Court to hear the Ed O'Bannon case if the 9th US Circuit Court of Appeals rules unfavorably against the association.

Pastides, president of the University of South Carolina, said that an NCAA committee is currently working on creating new NCAA bylaws allowing football and men’s basketball players to be paid if the O’Bannon injunction goes into effect. Depending on the outcome of the NCAA's appeal, schools could begin offering players deferred payments for use of their names, images and likenesses (NILs) beginning Aug. 1. The payments would go into effect in the 2016-17 academic year.

Pastides said he thinks the NCAA made a good case in its appeal and described the O'Bannon decision as a "hybrid ruling" that at least would allow the NCAA to limit how much money could flow to athletes. The NCAA could cap the amount of money for NILs at no less than $5,000 per year.

"My hope would be that we'd get beyond this," Pastides said in an interview with from the SEC spring meetings. "You ask me if I'd like to see it appealed to the Supreme Court. I'm one member of the board. I'm eager to see us turn the page on that and start working within whatever framework we have to start working in."

Here are excerpts of the interview with Pastides, who in January was elected chair of the NCAA board of directors. Aug. 1 is the date when schools would be allowed to start offering payments to players for use of their names, images and likenesses. Are bylaws being created now if needed?

Pastides: There is a committee that is working on preparing for that eventuality if this rolls forward and we've got to implement it. We'll be prepared. Let me say, $5,000 is not that different from the numbers we're all declaring relative to cost of attendance. Some of us said $2,500, $3,000, $3,500, $4,000. But it's not like (US District Judge Claudia Wilken) said $20,000. It's not like she said $100,000. It's not like big business can come in and pay a hundred grand to one, two, three or 10 or 20 high-profile basketball and football players and say that's the new model. I think her decision, although not exactly what we would have hoped, is somewhere in the middle." Wilken did include cost of attendance in the O'Bannon injunction in addition to the allowance of money for NILs. So is it your understanding that it would be $5,000 plus cost of attendance, or it would be a combination?

Pastides: I thought it would be a combination. I really do. That's why I think (the dollar amount is) not that far away. ... I think her decision would be just a bump up to five grand. But there are details that would have to be figured out. In fairness to us, if it goes through unobstructed by appeal, there would be some clarification. The NCAA would immediately have questions back: What did you mean by that? How does that get adjudicated? Literally, if we wanted to implement that ruling, it's not clear. Just like the questions you had for me." My understanding was the O'Bannon injunction was cost of attendance plus NILs, not a combination.

Pastides: I'm not sure. (Note: Wilken's opinion supports the conclusion that she's saying NILs ands and cost of attendance are two separate numbers. Wilken wrote "the injunction will not preclude the NCAA from implementing rules capping the amount of compensation that may be paid to student athletes while they are enrolled in school; however, the NCAA will not be permitted to set this cap below the cost of attendance, as the term is defined in its current bylaws. The injunction will also prohibit the NCAA from enforcing any rules to prevent its member schools and conferences from offering to deposit a limited share of licensing revenue in trust for their FBS football and Division I basketball recruits, payable when they leave school or their eligibility expires.") Is the Jeffrey Kessler case that seeks a free market for players the biggest lawsuit you're worried about?

Pastides: It's a big one. We of course talk about it. I am hopeful there will be an agreement there of all parties. Of course, the devil's in the details. I understand that the former players say that we were close to implementing something like full cost of attendance several years ago and there was an override. Now the courts are saying you need to do that, so the players want some of that money retroactively. I understand that point of view.

On the other hand, how far back do you go? Do you go to ancient times? That's something we're going to let the lawyers figure out. But we don't want the players and former players to be against us. I know where money is involved it's a contentious thing. But the NCAA can't be seen as anti-player or anti-former player. We don't want that. Do you think there could be a way to create group licensing for athletes?

Pastides: Maybe. I think when you think about a jersey, just to use that as an example, and when there's a very popular player whose name is on the jersey and they're flying like hotcakes but the university's name is on the jersey too, I could see something where that player benefits later on. Maybe a group license is the way to do it.

We also at the NCAA care deeply about the players whose names aren't on the jersey being bought. I'm one of those people who was strongly in favor of cost of attendance sharing more money with the players to help college become more affordable. ... What I'm equally vehement in opposition is that we allow a small number of elite athletes to benefit egregiously because of their talent financially while they're still college students. But if you were to ask me might there be some way where those students who are directly contributing to the financial gain of the university because they are so good, shouldn't they benefit a little more? I think that's something we can continue to work on. Playing devil's advocate, you've got regular students who are actors, musicians, writers and can get paid while being a student in college. When I was in college, I could work at the student newspaper and get paid and also get paid professionally as a freelancer.

Pastides: But you did that on your own. Right. So that's another model that has been suggested. Couldn't you say athletes could receive sponsorship money they're able to obtain from the outside and universities wouldn't be on the hook to directly pay for it?

Pastides: Well, a track and field athlete arguably has that opportunity. But how does that happen for a football player or basketball player who has no value until they become a pro other than they're part of the university team? If the benefits to accrue are moderate, I'm always going to want to talk about it. If the path forward is like remove all control, you know, then I'm not [in favor of it].

I know we have a student [at South Carolina] who used to be a Disney actor and made a lot. We understood it. How could she not have her big payday? But she took a leave of absence, she made money, she put the money in the bank. I don't know how much. She didn't have to tell me how much. The studios paid her money. She comes back to school at the right time. She has ample time to pay her tuition. That's a good story.

It's a little different in athletics when you're playing a team sport. And by the way, I realize that young woman was different than other students. She came back, she was a little bit of a celebrity, just like athletes can be a celebrity. I'm one of those forces in the NCAA who wants to talk about these things. We'll talk about them with Congress, we'll talk about them with business interests. I just think the courts, plaintiffs, defendants, probably are not the best way to get the right thing done. But change probably wouldn't get done without pressure, right?

Pastides: Well, it's the American way. I think people would understand that we can't just cave and roll over and say well, you're applying pressure so here's the treasury. ... Then people say take the money away from the coaches' salaries. But our hands are restricted there because of federal antitrust and you can't restrict competitiveness. To be fair, that's what the players are saying. They're saying they've been restricted and their value is capped at zero after a scholarship.

Pastides: I know, but I would say 90 percent or more of NCAA members -- even the 65 universities in the five autonomy conferences -- are not going to find it easy to find the extra money because you can't divert it from the coaches. The only thing you really can do is either in the best case defer projects that are of value to the university and the players themselves, or increase tuition or take state appropriations away in order to pay the athletes more. There's not a huge treasury that allows us to do that. We're fortunate with the [SEC] Network we have some new income. That's where we're going to get the money. Some members of Congress want to create a presidential commission to examine issues in college sports. Do you think that is going to happen and what do you believe Congress' role should be in college sports?

Pastides: I don't think it's going to happen. I think there will be a constant din. There will probably be a minority of people wanting this anytime there is a flagrant problem [in college sports], because there will be these problems, I'm sure, every year. Congress' role ought to be inquiring, to be interested, to be observant, but not to be managing or legislating because I think we've done very well all these years."