A district court judge in San Francisco on Monday denied the N.C.A.A.’s motion for dismissal in a class-action lawsuit headed by the former U.C.L.A. basketball star Ed O’Bannon. The ruling leaves the N.C.A.A.’s licensing contracts open to discovery. O’Bannon’s lawyers filed the antitrust suit in July, claiming that former athletes should be compensated for the use of their images and likenesses in television advertisements, video games and on apparel. They said Monday’s ruling was an important first step.
Ed O'Bannon had an active offseason. First, there was the profile in the Washington Post about O'Bannon's post playing days. (He's a family man and car salesman in Las Vegas and, after struggling with his NBA failure, appears to be quite happy with his lot.) Then there was this: A lawsuit organized by shoe maven Sonny Vaccaro and headed by O'Bannon, who is the lead plaintiff in the case that just might force the NCAA to start paying royalties to its former players. Now that the above has happened -- the NCAA's motion for dismissal was denied -- that reality is closer than ever.
O'Bannon is suing over royalties used in college basketball video games -- which, ironically, EA Sports recently stopped making, probably because that game was always terrible -- but the suit is far more important than that. At stake is the NCAA's model, which grants the business rights to a player's likeness in perpetuity, which can in turn be used for revenue-generating things like State Farm ads, CBS tournament spots, magazine spreads and, yes, video games. It's not a minor suit over a few dollars O'Bannon would like to recoup. It's an organized, class-action effort, and it's about the $4 billion the NCAA makes off its athletes, and those athletes wanting a piece of the pie.
Even if O'Bannon's lawyers don't win the trial, this is a big day -- it opens the NCAA's books to the discovery process, meaning O'Bannon's lawyers get to dig through the NCAA's infamously cloistered financial records. O'Bannon's lawyers are certainly pleased:
"The key to this order is that it opens the door to the discovery process, and we soon can begin collecting evidence from the NCAA [and its member schools and conferences], taking depositions, and uncovering everything that it wanted to hide and keep from the public’s and athletes' view," said Jon King, partner at Hausfeld LLP, one of the firms handling the class-action suit.
"This is a truly historic day – to our knowledge, no one has ever gotten behind the scenes to examine how student-athletes' current and future rights in their images are divided up and sold," King said. "As Supreme Court Justice Brandeis once stated, ‘Sunshine is the best disinfectant,’ and we’re about to let the sunshine in."
That's a more than a bit overwrought, but you get the idea. For the first time, outsiders are going to get to see what the NCAA does with the money it generates on its athletes. We know what it doesn't do: pay the people who generate that money. (Well, unless these people are coaches, many of whom have been made millionaires in the current system while their players' income tops out at free classes, bland campus food and a 13-by-13 dorm room.) Whether you see this as a good thing will have a lot to do with your predisposed notions towards whether college athletes should be paid, but it's pretty hard to disagree with the notion that there's something horribly unfair about $4 billion -- yes, $4 billion -- being made off the performance of those who see none of that money in return.
At the very least, former athletes like O'Bannon -- who are no longer in college and no longer at prone to the corruptive risk of a modest paycheck -- deserve a cut. Is that so much to ask?