June 21, 2016

Running v. Poker—Heads Up for Rollz

I'm a simple guy. I go to work. I come home. I walk the dog. I watch some TV. Lather. Rinse. Repeat.

I only have two major hobbies—running and poker. Both are good ways to unwind. Both can be fun. Both can be challenging. Both can kick you in the nuts.

But, which one is the superior hobby? Let's break it down.


Poker:  Pizza.

Running:  Gu gel.

Winner:  Poker. And don't get me started about pizza-flavored gels.

Financial Leaks

Poker:  Tournament entry fees. Bad bluffs. Sports wagers.

Running:  Race entry fees. Travel expenses. Shoes.

Winner:  Running. At least you still have shoes.

Health Risks

Poker:  Back pain. High blood pressure. Depression. Assaults.

Running:  Knee injuries. Blisters. Chafing. Bear attacks.

Winner:  Running. #TeamGrizzly

Free Beverages

Poker:  Red Bull. Beer. Captain & Coke.

Running:  Gatorade. Chocolate milk. Pickle juice.

Winner:  Poker. Even when you add in the tip.


Poker:  Hoodie. Headphones. Sunglasses.

Running:  Neon-colored shorts. Headphones. Sunglasses.

Winner:  There are no winners here.

Embarrassing Moments

Poker:  Misreading a hand. Bluffing into the nuts.

Running:  Bloody nipplesRunner's trots.

Winner:  Poker. In a gawddamn landslide.

Bad Beat Stories

Poker:  "I had a huge stack on the bubble of this WSOP tourney. I had pocket Kings, flopped a set, and got it all in versus the chipleader. He had Aces and went runner-runner for a flush."

Running:  "My shoelace came untied, so I had to stop and retie it. I missed qualifying for Boston by 30 seconds."

Winner:  Running. Dante really should have devoted an entire level of Hell to poker players who tell bad beat stories.

Inspirational Movies

Poker:  Rounders. Maverick. The Cincinnati Kid.

Running:  Chariots of Fire. Prefontaine. Forrest Gump.

Winner:  Five great flicks, plus that Tom Hanks dud. Rounders captures the seedy, degenerate side of poker, while Forrest Gump is like a box of chocolate gel packs. Poker with the easy win.


Poker:  "Poker Face"—Lady Gaga. "Ace of Spades"—Motörhead. "The Gambler"—Kenny Rogers.

Running:  "Running Down a Dream"—Tom Petty. "Born to Run"—Bruce Springsteen. "Run Like Hell"—Pink Floyd.

Winner:  Usually a lineup of Petty, Floyd, and The Boss would cruise to victory. But Lemmy makes this a draw.

Amateur Aspiration

Poker:  Cash in a WSOP event.

Running:  Qualify for the Boston Marathon.

Winner:  Running. Your family and co-workers have actually heard of the Boston Marathon.

Worst Aspect

Poker:  Playing Limit Omaha-8.

Running:  Running up a mountain.

Winner:  Running. Both are agonizing, but with running you have a great view and a legitimate shot at dying as an exit strategy.


There you have it. The analysis is irrefutable. Running is slightly superior to poker.

And running is freaking stupid.

Mt. Evans Ascent—June 2015

April 26, 2016

Chopping the Primaries

As another set of presidential primary results come in tonight, it is interesting to note how the different delegate selection systems used by the Democrats and Republicans have had significantly different effects on how each party's eventual candidate will be selected. Let's look at these effects by using poker tournaments as an analogy.

Each state is essentially a separate poker tournament, offering a prize pool of delegates. The size of the prize pool (number of total delegates available) will vary based on the nature of the tournament. For example, some tournaments have smaller buy-ins or fewer participants, and have a smaller prize pool, while other tournaments have larger buy-ins or more participants, and have a larger prize pool. Under this analogy, California is the Main Event of the presidential primary season. You have to win a lot of smaller tournaments (or a lot of Nebraskas and Delawares) to net as many delegates as a win in the Main Event.

Even more important than the prize pool, however, is the payout structure. On the Democratic side, all states award delegates on a proportional basis—win 55% of the vote, get roughly 55% of the delegates (in states with small numbers of delegates, the delegate counts may deviate slightly due to rounding, such that a 52%-48% "win" results in an equal split of delegates). On the Republican side, however, early primaries were proportional (with a qualifying threshold), while most later-stage primaries are winner-take-all or winner-take-most affairs. In those states, a simple plurality of the vote—maybe as little as 40%—can win 90-100% of the delegates.

Viewed as poker tournaments, the Democratic primaries essentially are structured such that the candidates are required to "chop" every primary. As my poker-savvy readers know, chopping is an agreement to split the prize pool rather than playing out the tournament to its end. Chopping is common in poker tournaments, and is a method for reducing variance (being the chip leader is great until a couple of short stacks get lucky and knock you out with a small payout). Chopping is usually tied to chip stack size, recognizing that players with more chips have a better chance of winning. One basic method of chopping is a "chip-chop" where every player is paid last place money, and the remaining prize pool is divided proportionally to chip stack size. So, players with larger chip stacks get larger percentages of the prize pool, but everyone gets more money than last place money.

The Republican primaries—at least those remaining—are more akin to poker tournaments with top-heavy payout structures. Poker tournaments with guaranteed payouts (such as the WSOP "Millionaire Maker") often feature large payouts to the winner or top few players, with little or no prize money for lower finishers.

These structural differences are critical to the underdogs in both races. On the Democratic side, the primary was essentially decided by Super Tuesday, when Hillary Clinton opened up a sizable pledged delegate lead. Although Bernie Sanders has won numerous primaries and caucuses since then, most of those were in smaller states with fewer delegates. Even worse for Sanders, the proportional award of delegates made it difficult for Sanders to make an appreciable dent into Clinton's delegate lead because Clinton will pick up sizable numbers of delegates even in states she loses. Effectively, Sanders can never come close to sweeping a state's delegates. Based on projections by FiveThirtyEight.com, Sanders will likely need to win 65% of the delegates in the late-stage Democratic primaries, which translates into this essentially impossible scenario:
"Based on these estimates, Sanders would need to beat Clinton by 26 percentage points in California, 28 points in Indiana and 16 points in New Jersey, all states where he trails Clinton in polling averages. He’d also need to win Western states like Oregon and Montana by 50 or more percentage points."

~ FiveThirtyEight.com
By contrast, the top-heavy structure of the late Republican primaries offers Ted Cruz an opportunity to quickly close the delegate gap on Donald Trump if he is able to score even narrow wins in most of the larger remaining Republican primaries. Even though that scenario is unlikely to lead Cruz to a majority of delegates, Cruz still has a decent shot of winning enough delegates to deny Trump a majority of delegates, enabling Cruz to make it past a first ballot and into a scenario where delegates would no longer be pledged to Trump and could throw their support to Cruz (or John Kasich or Marco Rubio).

In short, Sanders could close out the remaining primaries on a string of 60%-40% victories and handily lose the Democratic nomination, while Cruz could close out the remaining primaries on a string of 40%-35%-25% victories and win the Republican nomination. Of course, the most likely scenarios are for Clinton and Trump to score solid victories in most of the remaining primaries (starting tonight) and wrap up majorities of pledged delegates prior to the party conventions. But the difference in delegate selection structure means Clinton is essentially on cruise-control while Trump will be in a dogfight to control Cruz.

February 03, 2016

RINO for a Day—Inside the Iowa Republican Caucuses

I am a Republican.

There. It feels better to have that secret out there. It has been a terrible burden to bear.

I haven't always been a Republican, though I did grow up in one of the most reliably Republican congressional districts in America—Nebraska District 3—which covers pretty much everywhere in Nebraska that isn't Omaha or Lincoln. Republicans in partisan elections can rely on running up 70-80% of the vote in this largely rural district where you find fifth and sixth generation family farmers and ranchers, and county seats with populations in the low-to-mid thousands. Social life revolves around school, church, and Huskers football. Guns and God (and running the dang ball) are a way of life, not a punchline. My hometown actually sits on the banks of the Republican River.

Still, in my very first Presidential election, I voted Democrat, supporting Jimmy Carter in his 1976 victory over Gerald Ford. I suppose technically my vote only counted in the highly influential Weekly Reader presidential poll, considering I was a first grader and couldn't get around that pesky 26th Amendment. Still, my guy had won, so being a Democrat meant being a winner. So I was a Democrat. Of course, I'm still bitter about the other big election that fall, when my elementary school voted on the color of the new tornado slide. Informal recess polls had red and gold neck-and-neck during election week, but somehow blue pulled off the upset victory. I still suspect those shady 5th and 6th graders committed election fraud.

The Iowa caucus system strongly resembles a school election. Voters are crammed into churches, schools, and community centers. The pledge of allegiance is recited. Some self-important busybody serves as chair because nobody else wants to run the show, and everyone mostly wants to get home to watch Netflix. Speeches are given and ignored. In lieu of a raffle or bake sale, envelopes are passed around for cash donations, with a reminder to keep it below the mandatory reporting threshold; nobody wants to do homework.

My first two forays into the caucuses were as a Democrat in 2004 (Edwards) and 2008 (Obama). Those were the first caucuses of the social media era, and turnout was substantially greater than anticipated. Democrats those years were motivated, organized, energized. We left the caucuses feeling that our votes mattered.

This year, I had planned to skip the caucuses. I had switched my voter registration to Independent in 2010, and the Democratic race seems to hold little actual suspense—it's your standard race between a candidate who would fail an open-book exam in Economics 101 and a candidate who would need a cheat-sheet to pass Intro to Ethics.

But then, around Thanksgiving, a sign appeared.

No, really. An actual freaking sign. In fact, it was this particular billboard mounted on a fence in my neighborhood:

Donald Trump billboard (12/8/2015), West Des Moines.
2016 Iowa Republican Caucuses.
This sign is four blocks from my house. It is mounted overlooking the corner where my street intersects with one of the busiest parkways in the Des Moines metro area. In an unintentional homage to the modern Republican Party's core constituencies, the sign sits smack between the biggest evangelical mega-church in the metro and the largest shopping mall in the state. Given that I run, walk, and drive past that corner several times each day, I've gotten to see a lot of that sign. And as the caucus season progressed, it drew plenty of attention from visitors and the media.

As Donald Trump might say, the sign is yuuuuge.

Now my significant other and I enjoy watching Trump's reality TV show, Celebrity Apprentice. On the show, Trump can be a bullying buffoon, but he's an entertaining buffoon. Trump as President? Not nearly so entertaining. For that matter, I wasn't particularly enamored of several other Republican candidates. But what could I do?

Then, Monday morning as I passed the Trump sign on my way to work, it occurred to me—why not caucus as a Republican? If I'm not thrilled with the Democratic candidates, why not help support a better (i.e., more tolerable) Republican candidate? At the very least, why not see who these people are who think Trump should be President? Maybe the Trump sign guy would even speak!

Iowa allows same-day voter registration, including changing parties to cross-over and vote in a primary or caucus. A quick form to complete online and print out, and presto! I was a newly minted Republican.

Caucus night was exciting. It was a five minute drive to the large Catholic church where our precinct (West Des Moines 221) and four other precincts (the efficiently numbered West Des Moines 222-225) would gather. We arrived at 6:40, and the line stretched around the building. More doors were opened, and the lines collapsed into a black hole inside the church with folks jostling to get in the right registration line. Based on official tallies, 1,203 people voted at our location, with the largest group (406) being from our precinct.

Organizers had not anticipated the large number of caucus participants. There were too few people working registration. Ballots ran out and had to be printed. Lines ground to a halt. In the midst of the chaos, candidate Carly Fiorina was giving a TV interview, presumably setting expectations for a "win" as outpolling Mike Huckabee and Deez Nuts.

Suddenly, a murmur broke out. There, walking through the crowd as if he were parting the Red Sea or walking the Oscars red carpet, was Donald Trump. The crowd acted like he was a Hollywood star, maybe George Clooney on a bad hair day. Trump smiled and basked in the crowd's adoration, gave brief remarks to a TV crew, then headed to the front of the church. Love him or hate him, the Donald exudes charisma.

Donald Trump arrives at the Iowa Republican Caucuses.
St. Francis Church, West Des Moines, 2/1/2016 .
Despite the registration backlog, the caucus was brought to order at 7:15 PM. At least 800 people were crammed into the fellowship hall, with the remaining 400 or so of us out in the adjoining entry room, many still waiting to register. A Boy Scout troop posted the American and Iowa flags, and we all recited the Pledge of Allegiance, because we're Americans, not Socialists, dammit. The temporary chair appointed by the state party was then elected to be permanent chair because nobody else wanted the hassle. And then, as I remained 25 people back in the glacial registration line, the main event was underway.

Each campaign was given three minutes to bore or annoy the crowd with a last minute sales pitch to those oddballs who, despite months of campaign mailers, TV ads, debates, and candidate appearances at local fairs and pancake dinners, still found themselves undecided mere minutes before voting. Carly Fiorina and Donald Trump each spoke for themselves at the beginning, followed by precinct representatives for the other campaigns in alphabetical order. Here are my summaries of their speeches. Keep in mind I was trapped in the undertow of the registration line the entire time, so my notes were minimal. Paraphrasing is likely to be inaccurate, while direct quotes are probably unusually inaccurate paraphrases.

Fiorina:  Drawing on her experience as a failed CEO, Carly gave a wonderfully upbeat speech filled with corporate jingoism meant to distract from her campaign's lousy performance in the 4th quarter of 2015. She closed with an appeal for "enough votes to attract a leveraged buyout or vice presidential nomination."

Trump:  The Donald is loud! He's successful! He's rich! He's an outsider! He will be a winner! Every other candidate is a loser! Free walls for everyone! Mexico will host an open bar with free margaritas and walls! Note: The WALL (TM) thing has me curious. Is Mexico using MasterCard, and if so, what kind of airline miles or cash back multiplier are they getting for construction-related purchases? Will Mexico pay for my new backyard retaining wall? Because that would be amazing.

Santorum:  Rick's wife, Karen, reminded the crowd that the Muslim terror group, ISIS, wants Rick dead, which is sad and puzzling because they share those strong Christian values of demonizing gays and returning civilization to the good ol' days of the Dark Ages. Also, the electoral system is rigged against those who dare to speak against the Republican establishment, particularly if your name happens to rhyme with "Dick Mantorum." Karen closed with an anecdote about how Rick likes to make blackberry jam. But either she forgot to bring jam, or there wasn't enough for those of us in back. Trump would've had jam for everyone, and it would've been award-winning, amazing jam, and Venezuela would've paid for it with a post-dated check. Anyway, no jam, no vote.

Bush:  Jeb! can win Florida. Jeb! can win Ohio. In a close election, Jeb! can win in the Supreme Court. Basically, Jeb! has a very particular set of skills, and at this point, he expects you to vote for him, because if you don't, he's going to torture you with more cheesy super-PAC ads.

Carson:  Doctor Ben is a regular guy. He'd totally drop by your house on Thanksgiving. "By the way, we're all neighbors. You're supposed to love your neighbor. How many of you even know your neighbor?" [crowd shuffles uncomfortably] [Note: This was a totally real quote.]

Cruz:  Ted is a good person. Ted believes in God. He reads the Bible. Ted believes in the Constitution. It's not clear if he has read the Constitution. Ted will ban gay marriage, abortion, and the designated hitter. Ted makes the apple-iest apple pie. Ted is not only not Canadian, he is the only candidate willing to carpet bomb ISIS in Canada.

Huckabee:  No one spoke for Huckabee. For the first time ever, I agreed with every word said by Huckabee's campaign.

Kasich:  Only John can save the United States. Only you can prevent forest fires.

Paul:  Rand's niece, Lisa, spoke. "Dammit Jim! Rand is a doctor, not a career politician!" Note: This message would probably work better if Rand wasn't badly trailing a world-renowned neurosurgeon who actually has never held political office.

Rubio:  "Marco is very religious, but doesn't want to flaunt it. He keeps it private. Like this past Sunday when he came to Mass at this very church. And again both the Saturday and the Sunday before that. Marco loves Mass at this church." Also, Marco is the best candidate for beating Hillary in the general election. There are three important points to remember about Marco:

1. Experience
2. Judgment
3. ???


Official ballot, West Des Moines Precinct 221.
Iowa Republican Caucuses, 2/1/2016.

High tech ballot box, West Des Moines Precinct 221.
Iowa Republican Caucuses, 2/1/2016.
"White" label distinguishes white ballots from Precinct 221
from different colored ballots from other precincts at the caucus site.
Following the campaign speeches it was time to vote. In the Democratic caucuses, participants physically gather themselves into groups by candidate, then spend an hour playing a ritualized version of Red Rover as each campaign poaches people from and lends people to other campaigns to maximize their delegates while minimizing the delegates of selected rivals. The Republican Party, however, is much more modern and simply casts a statewide straw poll using cutting edge technology designed to expedite voting and thwart election fraud—paper ballots and golf pencils. Basically it was just like that Weekly Reader election back in 1976, except instead of the sainted Mrs. Pearson counting the ballots, it was a committee of party hacks in a back room, supervised by the caucus chair who also totally coincidentally was also Marco Rubio's precinct captain.

After dropping our ballots in the color-coded and completely secure homemade ballot boxes—our precinct was awkwardly designated the "White" precinct—we had the option of leaving or sticking around for a business meeting about organizing the precinct and electing county party leaders and committees. We skipped out before we could be drafted to make glitter signs and hang crepe paper in the gym or whatever.

Unfortunately, it turns out I was on the wrong end of this grown up Weekly Reader poll. In selecting a candidate to back, my first criterion was "Don't Be Batshit Insane". Right away that knocked out Trump, Cruz, Carson, Paul, Santorum, and Huckabee. Christie is a jerk. Fiorina lacks experience. I could find myself supporting Jeb!, Rubio, or Kasich even if I don't agree with some/many of their policy positions; unlike the rest of the field, they seem qualified to govern.

In the end, I went with Jeb! while my precinct went with Rubio. In fact, Rubio (160 votes) essentially tied the combined votes of Trump (86 votes) and Cruz (75 votes) who finished second and third in the precinct. The aggregate votes for the five precincts at our location had a similar pattern, with Rubio (455 votes) far outpacing Trump (240 votes) and Cruz (228 votes). Although Rubio finished third overall in the state, he clearly attracts the support of middle-class suburban voters who will be critical to the success of any candidate in the general election (statewide precinct level results have been compiled by the New York Times and the Iowa Secretary of State).

So much for the good signs. The bad omen is that Trump and Cruz are both still ahead of Rubio and the rest of the pack. Trump looks to win New Hampshire. Trump and Cruz are both strong in South Carolina. Rubio or any other "establishment" or "mainstream" Republican candidate will need to find a way to tap into the anti-establishment energy driving this campaign or be left in the dust.

Although the presidential primary marathon has only begun, Iowa's turn in the spotlight is blessedly over. Now it's up to the next wave of primary states to further clarify who will represent the Republican Party. As for me, my 48 hours as an Iowa Republican have been exhilarating and embarrassing. At least if Trump is nominated, I can say I played my part in the resistance. But sometime in the next few weeks, this Republican will turn back into an Independent.

In the meantime, I have a hankering for some homemade blackberry jam.

Standing room only at St. Francis Church, West Des Moines.
Iowa Republican Caucus, 2/1/2016

Standing room only at St. Francis Church, West Des Moines.
Iowa Republican Caucus, 2/1/2016

Donald Trump enters the Iowa Republican caucuses.
St. Francis Church, West Des Moines, 2/1/2016.

Crowds waiting to register for Iowa Republican Caucuses.
St. Francis Church, West Des Moines, 2/1/2016.

Crowds waiting to register for Iowa Republican Caucuses.
St. Francis Church, West Des Moines, 2/1/2016.

January 08, 2016

Always Protect Your Beverage

An axiom of live poker is: "Always protect your hand." If a hand is fouled or mucked by mistake, a player often has no recourse. To protect their cards from misadventure, many players will use a card protector or "capper"—a chip, coin, medallion, or small trinket placed on top of their cards to weigh them down and signal to the dealer the hand is live. 2004 WSOP Main Event champion Greg "FossilMan" Raymer famously uses small fossils as card protectors, and often gives them away to players who beat him.

I got to thinking today about the "protect your hand" rule and card protectors because of a blog post by Rob, over at the cryptically named Rob's Vegas & Poker Blog (here's my memory of one of my first times meeting Rob). Rob may be the last poker blogger left in the wild. He writes regularly, often posting entertaining trip reports (remember those?) about his poker outings in Vegas. With posts filled with wacky hand histories, outlandish characters, and hilarious hijinks, Rob keeps it old school. Nobody consistently puts the "long" in "longform" quite like Rob.

Today, Rob posted a vignette (an "anecdote" by Rob's standards) about having his drink "stolen" from him while he stepped away from the poker table during a tournament at Aria. Now "stolen" is probably a bit of an overstatement. In reality, what likely happened is that a cocktail server saw a glass which appeared abandoned and picked it up in the normal course of her rounds. Look, beverages are free in Vegas poker rooms (though Rob, like most poker players, typically tips the server a buck per drink). So if your glass is picked up with a couple of sips left, no big deal, right? Well, not for Rob, who has—to date—been inspired to pen more than 2,500 words over two posts on the grave injustice of removing his beverage glass before he has consumed every drop of liquid and every cube of ice. 

Given the quirky nature of many poker players, it should not surprise anyone that some poker players can be a little over-protective of their free beverages. Back during our annual Ironman of Poker (IMOP) trip in March 2012, my buddy Santa and I were playing 4/8 Limit Omaha8 at Venetian. As you might expect for such a game, Santa and I were the only players born after World War II. One of the players—let's call her Ruth—reminded me of a raptor; beady-eyed, with talon-like hands that pounced on any pot she drug. 

Ruth, like most of the other players, was a regular in the game. Also like most of the regulars, Ruth complained loudly about everything—the room temperature, the drafty ventilation, her chair, the dealers, the other players, her cards, the board cards, the food and beverage service, the comp system, and whatever topic was brought up at the table. I think it's safe to say that low stakes Omaha8 players are the pettiest, most miserable class of people in any poker room, and possibly in the entire casino.

I had the dubious privilege of sitting next to Ruth. Needless to say, a couple of drunk young guys yucking it up and splashing around did little to lighten the mood at the table. Losing money to a couple of luckboxes who played too many hands and chased (and caught) too many draws was just the latest indignity the regulars had to endure; many of the regulars, including Ruth, were rather vocal in sharing their displeasure at our style of play.

At some point, Ruth ordered dinner. When her food was delivered, it was placed on a side table between us. Of course, we heard a litany of complaints—service was slow, they hadn't gotten her special instructions right, the food was too cold, blah, blah, blah. Nonetheless, Ruth ate her dinner, then got up and went for a walk.

About 15 minutes later, a food server came by and asked if he could remove the dishes from the side table. I told him he could. The server left the side table because I and another player had our drinks sitting on it (the Venetian's tables did not have cup holders).

Another 15 minutes went by, and Ruth returned. Immediately upon sitting down, she snapped: "Where is my soda? Who took my soda?" At that outburst, I remembered Ruth had been drinking a soda with dinner out of a standard glass. When she left, the glass was less than half full, and she had tossed her napkin over it. It certainly had appeared ready to be cleared. But ...

"Why would they take my soda? 

"I told them I thought you were done with dinner."

"I was done eating." Beady eyes glared at me. "Why did you tell them they could take my soda? I put my napkin over it so they wouldn't take it."

Now, I'm not certain if a napkin over a glass is a high society etiquette maneuver which indicates, "please don't take my beverage", or if the Venetian's napkins serve as magical cloaks of beverage invisibility. But Ruth was clearly peeved about her missing soda. So naturally, every server the rest of the evening was given imperious instructions not to touch her beverage glass. And, every time she left the table, the dealer was given strict orders to protect her beverage as though it were an irreplaceable family heirloom. I got the impression—via several glares and snide comments—that Ruth did not find the situation nearly as amusing as I did. Of course, I may have needled her just a little whenever she brought up the topic.

In any event, about a month later I was back in Vegas for a work conference. One night I went over to Venetian to play 1/2 NLHE. As I wandered through the room, I noticed Ruth was back at the 4/8 Omaha8 game. And again, Ruth had a side table next to her to hold her dinner plate and a glass of soda. But this time, Ruth was prepared. Covering her glass was a laminated coaster with a straw hole. Above a large black skull and crossbones on bright yellow background was neatly typed:


Based on Rob's posts, I bet there's an untapped market for poker drink protectors.

"Please Do Not Take This Drink"
--Venetian Poker Room (April 2012)

December 16, 2015

O'Bannon v. NCAA—College Athletes Get a Lump of Coal

In August 2014, a federal judge ruled in O'Bannon v. NCAA that the NCAA's amateurism rules were an unlawful restraint of trade in violation of the Sherman Antitrust Act because colleges improperly prevented their athletes from being compensated for the use of their names, images, and likenesses (NILs). The judge entered an order requiring the NCAA to place some portion of the money colleges earned from athletics—up to $5,000 per athlete per year—into a trust fund which athletes could access once their collegiate careers had concluded. Not surprisingly, the NCAA appealed.

In September, a three-judge panel of the Ninth Circuit Court of Appeals issued an opinion largely affirming the district court's determination that the NCAA violated antitrust law by restricting compensation paid to college athletes to the cost of attending school (tuition, room and board, books, and fees). The panel, however, limited the athletes' relief to expanding athletic scholarships to the full cost of attendance, but struck the district court's order to establish an athlete trust fund. Today, the full Ninth Circuit denied the athletes' petition for rehearing en banc, leaving the panel's appeal decision as the final ruling in the case, barring an improbable appeal to the United States Supreme Court.

Although the O'Bannon decision has been rightly hailed as significant blow to the NCAA's claim of general exemption from federal antitrust law, the Ninth Circuit's opinion is actually a major loss for college athletes. Surprised? Let's take a closer look.

In applying what is known as the "Rule of Reason" analysis to the NCAA's amateurism rules, the district court and appellate court each agreed that the NIL rules actually provided a pro-competitive effect which was beneficial to the schools and athletes by creating special market conditions for college athletics. Both courts agreed that the benefits of the NIL rules included “preserving the popularity of the NCAA’s product by promoting its current understanding of amateurism” and “integrating academics and athletics.”

Of these supposed benefits of the NCAA's NIL rules, the more important was the public appeal of amateurism. Citing a U.S. Supreme Court decision, the Ninth Circuit noted that paying college athletes would potentially damage the NCAA product by transforming amateur college athletes into poorly paid minor league athletes. In other words, college athletics exists as a lucrative product in large part because athletes are not paid, so requiring athletes to be paid might destroy the very market upon which college athletics depends (italics in original):
"We cannot agree that a rule permitting schools to pay students pure cash compensation and a rule forbidding them from paying NIL compensation are both equally effective in promoting amateurism and preserving consumer demand. Both we and the district court agree that the NCAA’s amateurism rule has procompetitive benefits. But in finding that paying students cash compensation would promote amateurism as effectively as not paying them, the district court ignored that not paying student-athletes is precisely what makes them amateurs.

Having found that amateurism is integral to the NCAA’s market, the district court cannot plausibly conclude that being a poorly-paid professional collegiate athlete is “virtually as effective” for that market as being as amateur. Or, to borrow the Supreme Court’s analogy, the market for college football is distinct from other sports markets and must be 'differentiate[d]' from professional sports lest it become 'minor league [football].'"
Denying college athletes any share in the mountains of cash they earn for the NCAA and its member schools, in the court's view, is a feature, not a bug in the collegiate sports business model. Now the Ninth Circuit grudgingly acknowledged that the meager NIL payments ordered by the district court would likely not cause significant harm to the concept of amateurism for the sports-consuming public. Yet, the Ninth Circuit noted that payments of any kind would inevitably lead to slippery slope demands for greater payments to college athletes:
"The difference between offering student-athletes education-related compensation and offering them cash sums untethered to educational expenses is not minor; it is a quantum leap. Once that line is crossed, we see no basis for returning to a rule of amateurism and no defined stopping point; we have little doubt that plaintiffs will continue to challenge the arbitrary limit imposed by the district court until they have captured the full value of their NIL. At that point the NCAA will have surrendered its amateurism principles entirely and transitioned from its 'particular brand of football' to minor league status."
The upshot of the Ninth Circuit decision is a bright line determination that any payment in excess of the costs of attending college is substantively compensation for play, and athletes are instantly transformed from amateur to professional. Because the court determined that preservation of the amateur athletic paradigm is a pro-competitive purpose for the NCAA's business model, the Ninth Circuit has given the NCAA a green light to enforce a hard line rule against any NIL payments in excess of the cost of attending school. Essentially, while paying lip service to antitrust law, the O'Bannon decision actually provides the NCAA and its members schools a virtually unassailable get-out-of-jail-free card—"protection of amateurism"—which effectively trumps antitrust law and prevents athletes from obtaining any meaningful monetary compensation.

With O'Bannon in its hip pocket, the NCAA and its member schools are essentially free to continue to rake in billions of dollars of revenue (and in many cases, still run large deficits) without paying its labor force anything remotely close to their fair market value for their work. The relief the O'Bannon decision affirmed—increasing scholarships to the full cost of attendance—is a hollow victory, as major conferences had already adopted these minor scholarship enhancements. The O'Bannon decision also likely guts other pending athlete compensation class action cases; if modest compensation of $5,000 per year is out of bounds for athletes as a threat to amateurism, how can a court award the even greater unlimited "market value" compensation sought in these pending cases? Throw in the recent National Labor Relations Board decision to deny college athletes the ability to form labor unions, and it's pretty much business as usual for the NCAA.

So, as you sit back to enjoy the upcoming college football bowl games this holiday season, rest easy that America's colleges will take on the terrible burden of divvying up a half a billion dollars in revenue so that their athletes remain true amateurs. It's all about the integrity of the game.