UC Hastings Board of Directors member Bruce Simon ‘80 enjoyed a storied San Francisco childhood, watching the 49ers at Kezar Stadium and hopping cable cars downtown to sneak into skyscraper construction sites.
(These escapades were recently recounted in profiles in Northern California SuperLawyers and Law 360).
When he was at UC Hastings in the late 1970s, he had visions of being a sports lawyer, or perhaps an agent for athletes. “The Note that I wrote for Comm/Ent was on sports agency law and about how athletes were being taken advantage of,” he said.
But despite an abiding passion for the San Francisco Giants (he’s an annual season ticket holder since the Candlestick days) Simon believes that the business of sport is broken. Now sports-related litigation is a high profile area of his practice at Pearson, Simon & Warshaw LLP, after he spent three decades focusing on antitrust and class action cases of all types.
“What’s happening is that sports — even amateur sports — creates so much money now that certain amount of greed has set in. Some of the athletes who are at the heart of these empires are not getting compensated for the value they are bringing.” Simon cited the example of T.V. contracts for events like March Madness, the NCAA (National Collegiate Athletic Association) basketball competition that bring in billions of dollars, which doesn’t flow back to NCAA athletes.
Recently, his firm has taken on a case that alleges that the NCAA is acting like a cartel, illegally suppressing the compensation players can receive. Instead of competing in a free market to lure players to their schools, the NCAA and power conferences get together and determine a cap onathletic scholarships, known as grants in aid.
The legal arguments against this practice is that there should be competitive decisions made about what student athletes should get. This is important because thecap on grants in aid that all of the schools and conferences agreed on does not reflect the economic realities of going to school. “It means that the grants that many men and women basketball players, and Division I football players, receive don’t even cover the true cost of attendance at their schools. So those students have to pay the difference, and many of the athletes, coming from poor families, don’t have the means.” In addition, Simon said, there are prescriptions about the kind of work they can do, adding to their burden.
In another related case, O’Bannon v. NCAA, Simon’s firm helped bring suit on behalf of student-athletes who object to the NCAA’s restraints on players benefiting from the licensing of their images in products such as live broadcasts and video games. A former UCLA basketball player, O’Bannon was outraged when he saw his likeness on a popular video game. O’Bannon’s suit argued that after graduation, student athletes should be able to claim compensation for the NCAA's commercial use of their images. The question was whether this would violate the orienting principle of collegiate sports: amateurism. This past August, Judge Wilkin of the Northern District of California found for O’Bannon, stating that the NCAA’s rule on name and likeness constituted an unreasonable restraint of trade that violated antitrust law.
A third case Simon’s firm is litigating is against the office of the Commissioner of Major League Baseball. It involves MLB’s failure to comply with the wage and hour laws in their payments to minor-league players. “They play for a set amount of compensation during their season,” explained Simon. “They have no collective bargaining agreement or union, and it’s a take it or leave it contract.”
The typical minor league player who is not star quality and who won’t advance to the major leagues gets a minimal signing bonus, and only gets paid around $1500 per month for a five month season. These players are not compensated for off-season training, spring training, or for extra, related activities like community events. Simon reported that this adds up to less than minimum wage under state and federal law. “During their playing season, they stay with host families, because they can’t afford their own places!”
Simon’s righteous indignation is palpable.
“What’s at stake in all of these cases is fairness and equity and making sure that these athletes are treated the same as everyone else,” he said. “If you are an employee, you need to be compensated, and the employer needs to abide by the wage and hour laws. There is no exemption for athletes.”