CHICAGO — During the question-and-answer portion of a speech at a downtown restaurant here Monday afternoon, Mark Emmert, the president of the N.C.A.A., was asked about amateurism. Why did the N.C.A.A. still have rules barring payments to athletes, an audience member wanted to know, given that other students can work as, say, interns and research assistants and earn money for their skills?
Emmert said there were moral and practical implications involved in paying college athletes. The functional reason, he said, is to keep recruiting on a level playing field, and he then explained why players could not be paid for signed merchandise.
“Do you sell autographs to School X because they’ve guaranteed you $100,000 and School Y’s guaranteeing $250,000?” Emmert asked. “How does that model work?”
It has been more than two months since a federal judge dealt a blow to the National Collegiate Athletic Association’s long-held amateurism ideal, ruling that N.C.A.A. rules preventing athletes from profiting from their likenesses on television and in video games violated antitrust laws. The decision, scheduled to take effect next Aug. 1, has been appealed by the N.C.A.A.
Still, universities and conferences around the country continue to scramble to increase benefits for players, including giving them more money as part of their scholarships. And the N.C.A.A.’s response to United States District Judge Claudia Wilken’s decision has been instructive, both on the complicated nature of amateurism and the N.C.A.A.’s position of supporting some benefits, but not others, while maintaining intellectual and legal consistency.
Wilken’s ruling in the O’Bannon case — named for the lead plaintiff, the former U.C.L.A. basketball player Ed O’Bannon — does not mandate that players be paid, but she suggested that colleges could share profits by raising the value of the scholarship to cover the full cost of attendance, as well as paying players through trust funds that could be tapped after college. Wilken recommended that the N.C.A.A. could cap the payments at $5,000 per player per year, and it would not violate antitrust laws.
Emmert supports increasing the value of scholarships. The Big Ten, Pacific-12 and Atlantic Coast conferences have endorsed it, too, as part of their platforms for the new autonomy the five wealthiest conferences were recently given to make some of their own rules (the Southeastern and the Big 12 conferences are the other two). But, Emmert said, the N.C.A.A. is opposed to the trust funds.
William Isaacson, one of O’Bannon’s lawyers, said this was the trouble with the N.C.A.A.’s definition of amateurism. He noted that several of the N.C.A.A.’s own witnesses from last summer’s trial were not certain how much money separated an amateur college athlete from a paid professional.
“Their definition changes,” Isaacson said, adding, “They agree with so much of the ruling, you sometimes wonder why they’re appealing.”
The N.C.A.A. also cited Wilken’s ruling in an attempt to have another series of lawsuits dismissed. The highest-profile of those cases was brought by the lawyer Jeffrey Kessler on behalf of the former Clemson defensive back Martin Jenkins, among others, and seeks to essentially turn recruits into free agents. Emmert said the case would “blow up college sports.”
Donald Remy, the N.C.A.A.’s chief legal officer, said a key to Wilken’s decision was the cap on the trust funds, an acknowledgment of the right to restrain athletes’ benefits.
“If we implemented Judge Wilken’s injunction, along with the restraints, exactly as she described it in the O’Bannon decision,” Remy said, “then under the theories in the Jenkins case, that would be an antitrust violation. And that cannot be what she intended.”
In its appeal of the O’Bannon case, the N.C.A.A. has asked the appellate court to re-examine its assertion that amateurism, by the N.C.A.A.’s definition, is vital to its business model. Another argument the organization will make is that players do not have publicity rights and, therefore, cannot be paid for them. The N.C.A.A.’s appellate brief is due in November; the O’Bannon team’s response is due in January. Oral arguments could follow as soon as April, and both sides have requested an expedited decision before the injunction takes effect.
As the O’Bannon case winds its way through the courts, athletic directors and university presidents are also wrestling with Wilken’s ruling. The 65 universities that were granted greater autonomy are expected to vote to increase the value of scholarships at the N.C.A.A. convention in January, which will shed light on how the O’Bannon decision could be affected by Title IX, the statute intended to end sex discrimination in education programs, including athletics, that receive federal financial assistance.
Currently, conferences and universities are looking at four options. The increased scholarships could apply only to the 13 men’s basketball players and 85 football players on scholarship, or to a matching number of women (98 across a number of sports). More expensive options being debated include offering the scholarship increase to all athletes who are receiving a full scholarship. If the O’Bannon ruling takes effect and universities choose to establish trust funds, the same Title IX parameters could apply.
Remy said some conferences could arrive at different conclusions, but he maintained confidence that all universities would be compliant.
North Carolina State’s athletic director, Debbie Yow, was less certain.
“We still have more questions than answers,” she said. “The January convention is going to be historic.”