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O'Bannon vs. NCAA: Judge weighing class-action certification

Claudia Wilken will decide whether thousands of current and former college players can join in suit seeking student-athlete revenue-sharing. A hearing is being held Thursday.

June 20, 2013|By David Wharton
  • Former UCLA basketball player Ed O'Bannon is at the forefront of a lawsuit against the NCAA seeking student-athlete revenue-sharing.
Former UCLA basketball player Ed O'Bannon is at the forefront of a… (Al Seib / Los Angeles Times )

For the last few years, the powers that be in college sports have watched nervously as an antitrust lawsuit wends its way through federal court.

O'Bannon vs. NCAA is challenging traditional notions of amateurism, arguing that young athletes should receive more than just scholarships for their role in what has become a multibillion-dollar enterprise.

On Thursday, the case arrives at a crucial fork in the road.

A Northern California judge must decide if thousands of current and former college players can join as plaintiffs in what would become a class-action suit. That could set the stage for a massive judgment, potentially changing the business of Saturday afternoon football games and March Madness.

"It's a very big deal," said Michael McCann, a law professor at the University of New Hampshire. "This could be an instrumental lawsuit in terms of reshaping college sports."

The case — spearheaded by former UCLA basketball player Ed O'Bannon — focuses on the way the NCAA and its business partners profit by using athletes' names and likenesses in video games, photographs, promotions and, potentially, television broadcasts. The plaintiffs want a cut.

College sports leaders say they need the riches derived from football and men's basketball to support less-popular sports. Big Ten Conference Commissioner Jim Delany filed a legal declaration stating that changes to the current system might force his member schools to "downsize the scope, breadth and activity of their athletic programs," shifting to a model that resembles the smaller, less glamorous Division III.

But not everyone agrees with this doomsday prediction.

Some experts believe there is enough money to spread around. And a longtime critic of college sports wonders if giving athletes a larger share might help curtail what she sees as out-of-control spending on coaching salaries and training facilities.

"The perception that college athletics as we know them would be destroyed is an overreaction," said Ellen Staurowsky, a sport management professor at Drexel University in Philadelphia. "This could be a clarifying moment."

It was unclear whether Judge Claudia Wilken would hear oral arguments or render a decision during the certification hearing Thursday.

The case before her is a consolidation of suits filed by O'Bannon and former Nebraska quarterback Sam Keller. Others, such as basketball greats Oscar Robertson and Bill Russell, have joined in.

The plaintiffs are represented by Michael Hausfeld, famous for negotiating a large antitrust settlement with Microsoft. Attorney Ken Feinberg, who played a role in financial settlements for the BP oil spill in the Gulf of Mexico, is also involved.

The O'Bannon suit originally focused on the use of former athlete likenesses in video games licensed by the NCAA and sold by EA Sports. The Collegiate Licensing Co., which represents nearly 200 colleges, the Heisman Trophy and the NCAA, was named too.

"I saw a kid playing a video game that had my likeness, and I thought that was wrong," said O'Bannon, who now lives in Nevada, working at a car dealership and coaching high school basketball. "I thought that a change needed to be made."

His legal challenge soon broadened, seeking to include current athletes and bringing television into the mix. TV money dwarfs video-game revenue, which has been estimated at less than $10 million a year.

By comparison, the NCAA has an 11-year, $10.8-billion contract with CBS Sports and Turner Broadcasting to televise its men's basketball tournament. The Pac-12 has a $3-billion deal with Fox and ESPN, characteristic of the wealth that conferences amass by offering replays of classic games and other broadcast content.

"The NCAA is clearly worried," said Robert Orr, a North Carolina attorney who has represented athletes, including former UCLA player Shabazz Muhammad. "You can see the PR campaign they are mounting."

The dispute has focused on several issues: use of likenesses, a waiver that student-athletes must sign and the potential effects of revenue sharing.

Last year, NCAA executive vice president and general counsel Donald Remy issued a statement saying: "The simple, straightforward truth is that the NCAA has never licensed student-athlete likenesses."

It is true that games such as EA Sports' "NCAA Football" do not feature names or faces of players. But the plaintiffs say they have discovered internal NCAA emails suggesting that EA uses attributes and jersey numbers of famous players in its games.

The 2011 version of the game offers numerous examples. USC's quarterback wears No. 7, just as Matt Barkley did that season. Louisiana State has a black quarterback wearing No. 9, just like Jordan Jefferson. Oregon State's running back is No. 1, just like Jacquizz Rodgers the previous season.

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