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Cardozo Journal of Conflict Resolution

Abstract

Between the mounting pressure of public opinion, and continuing litigation in which various plaintiffs are seeking to take advantage of the player-friendly language in O'Bannon, the power dynamic in college athletics is shifting back towards the players. The previously uneven playing field is leveling. This Note examines how to inject mediation into the "pay-for-play" debate to better serve the interests of the NCAA, the major conferences (Big 10, SEC, ACC, Big 12, and Pac-12), and the student-athletes in the wake of O'Bannon. While litigation was necessary to start the process, ultimately, it will be up to the NCAA and the conferences to decide how to change their rules. Mediation is well suited to that task.

Part II examines the background and the history of the "payfor-play" debate. Specifically, Part II discusses the landmark 1984 decision in the NCAA v. Board of Regents to present the origins of the issue. Finally, Part It also discusses the current NCAA rules in place that restrict college athletes from being paid and analyzes both how the NCAA makes its money and what exactly studentathletes receive through scholarships.

Part III examines the principal arguments made in O'Bannon and how Judge Wilken addressed them. The NCAA makes four main arguments in the O'Bannon case in attempt to uphold the challenged rules. The NCAA's arguments are the preservation of its tradition of amateurism, maintaining a competitive balance among FBS football and Division I basketball teams, promoting the integration of academics and athletics, and increasing the total output of its products. However, the Court finds these arguments to be unpersuasive and rules against the NCAA. Further, Part III looks at Jenkins v. NCAA, a recently filed lawsuit that seeks to invalidate all restrictions against compensating college athletes and essentially create a "free market" for college athletes. Pundits view the Jenkins lawsuit as the next big threat to the NCAA.

Finally, Part IV explores the possible benefits of using mediation between the NCAA, the conferences, and the student-athletes, and discusses reasons why litigation is not the best vehicle for resolving student-athlete compensation issues. Further, Part IV shows why mediation is a better alternative and discusses precedent in other sports contexts. Finally, Part IV discusses who might come to the mediation table, what type of mediator may work best, and the challenges of mediating the "pay-for-play" dispute.

Disciplines

Dispute Resolution and Arbitration | Education Law | Entertainment, Arts, and Sports Law | Intellectual Property Law | Law

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