Saturday, January 20, 2018

O'Bannon suit seeks to upend college sports

Big money flows through college sports.

Coaches get multimillion-dollar contracts. Boosters sit in luxury boxes. Schools rake in money from merchandise sales.

At a recent Florida booster event in Tampa, items autographed by former Gators Riley Cooper, Aaron Hernandez and, of course, Tim Tebow lined a table, ready for purchase. The school just announced a $100.4 million athletic budget for the coming fiscal year.

It seems everyone gets a slice of the pie, except the athletes themselves. But the old argument about whether players should be paid has taken a new twist, and it's one that some believe could bring the end of amateurism in major college athletics.

Ed O'Bannon, a former basketball star at UCLA, leads a lawsuit against the NCAA and companies that license college sports merchandise and market video games. The suit, which has a key hearing Thursday, argues that it's unfair that the NCAA, Collegiate Sports Licensing and Electronic Arts Sports can use players names, images and likenesses in TV ads, apparel, video games and other products even after they are no longer in college.

Some believe the suit strikes the NCAA in a vulnerable area and could result in millions of dollars in damages. Big Ten commissioner Jim Delany threatened to drop his league to the non-scholarship level if O'Bannon and the other plaintiffs prevail.

"The collegiate model is getting a lot of (flak) right now, but we think it works," UF president Bernie Machen said.


O'Bannon, 40, and other athletes object to a requirement that they sign away the rights to their images in order to be eligible to compete in college athletics. That contract doesn't end with their eligibility.

Walk in any Gator sports shop in Gainesville and there will be a generous supply of No. 15 jerseys. The number now belongs to cornerback Loucheiz Purifoy, but for most Florida fans it's really a nod to Heisman Trophy winner Tim Tebow — even though there is no name on the jersey. And while EA Sports has staunchly maintained that none of the players' attributes or physical appearances in its life-like video games are based on real college athletes, a recent SBNation story revealed that a play in one of the 2010 EA Sports NCAA football games was titled "Shotgun Twin QB Tebow." The game was released in 2009 while Tebow was still playing for the Gators.


Lawsuits against the NCAA generally don't gain much traction. Sometimes courts have ruled in favor of the NCAA or in some cases, the powerful college sports governing body has outspent or outlasted plaintiffs.

"On this antitrust issue, the NCAA has used some pretty successful defenses in the past," said Jeffrey Harrison, Stephen O'Connell chair and professor of law at the University of Florida Levin College of Law. "The main one is if you won't let us agree, this product won't exist as it is and people won't be interested. That will be a big part of the antitrust case."

But O'Bannon has an experienced set of lawyers, led by Michael Hausfeld who has represented Native Americans against Exxon after the Valdez oil spill and Holocaust victims against Swiss banks that confiscated their assets in the World War II era.

O'Bannon also has the backing of many athletes, including Pro Basketball Hall of Famers Oscar Robertson and Bill Russell. The case is in its fourth year and isn't expected to reach the main trial until 2014.

"I was optimistic about O'Bannon waging a lengthy legal battle because he has a very prominent set of lawyers," said Michael McCann, director of the Sports and Entertainment Law Institute at the University of New Hampshire Law School who has studied and written about the case. "Sometimes if the plaintiff doesn't have a lot of money, they can't really afford to have a long-term legal battle because the bill gets high. … Often when a student-athlete sues the NCAA, legal bills start to total up. So the advantage here is the financial flexibility of having a lengthy legal battle, and secondly that the argument has some merit to it."

The case hits a critical juncture Thursday when federal judge Claudia Wilken will preside over a hearing in San Francisco to determine whether the lawsuit is eligible for class action status.

Lawyers for the NCAA are expected to argue that the thousands of ex-athletes who could join in the suit are too dissimilar to have the same market value, thus class status isn't valid.

"If they can keep the class from being certified, that means it's very unlikely the case will go on," Harrison said. "If the case does get certified, they might want to try to settle it so no court will actually be faced with the issue of whether they have violated the antitrust laws."

McCann said the case has merit because the athletes are prevented from controlling their images.

"The antitrust argument is that all of the NCAA members have joined hands to conspire to prevent student-athletes from being compensated for their image and likeness; that the market would be more competitive if there wasn't this conspiracy," he said. "I don't know if it's going to work, but there is something there that is worthy of explanation by a court."

If the case makes it to a jury — or a settlement — it could be worth millions of dollars to former players and force the NCAA and its member schools to seriously consider changing its current business model, including stipends and even pay-for-play. Some predict the NCAA would have to disband and schools would form a new governing body.


Machen, the UF president, said the Southeastern Conference's general counsel is in regular contact with the NCAA on the issue and has kept the presidents up to date on the case. He doesn't believe it will result in drastic measures. Delany, the Big Ten commissioner, has backed off his threat to drop to Division III.

"For the presidents, it's such a shock if it happens, that we're not really in perpetuity mode, we're in a how can we keep it from happening kind of mode," Machen said. "They (NCAA) will fight this one out. Everybody will fight for like forever. I think we may be a couple years away from a resolution."

Antonya English can be reached at [email protected]

. fast facts

The lawsuit against the NCAA

WHO'S INVOLVED? The original suit was filed by former UCLA basketball star Ed O'Bannon in 2009. Since then, several other plaintiffs have joined, including former Nebraska QB Sam Keller, former Alabama WR Tyrone Prothro (whose career was ended by a serious knee injury sustained in 2005 against the Gators) and Pro Basketball Hall of Famers Oscar Robertson and Bill Russell.

THE CASE AT HAND: The players contend the NCAA, Electronic Arts Sports and the Collegiate Licensing Company are violating antitrust law by preventing athletes from being paid for use of their names, images and likenesses, even after their college playing days are over.

WHAT'S NEXT? On Thursday , federal judge Claudia Wilken will preside over a hearing to determine whether the lawsuit should be granted class-action status. This is considered a critical point in a case that many analysts are surprised has made it this far. Critical in this decision is whether the suit will include both former and current players if class-action status is granted. If class-action status is granted, the potential damages against the NCAA and other defendants would soar.

AT STAKE: If the NCAA and other defendants prevail, they can maintain business as usual. If the plaintiffs are granted class status and eventually prevail in the case, it could end the days of major college athletes being amateurs.

Antonya English, Times staff writer

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