O'Bannon vs. NCAA

Posted by Kevin Arnovitz

The debate over whether college athletes should have their images used by the NCAA for commercial purposes has been percolating for years. With the emergence of the video game industry, commemorative championship-season DVD and other merch, the NCAA profits greatly from the likeness of amateur athletes.

Yesterday, one such athlete -- former UCLA basketball standout Ed O'Bannon, along with thousands of other former college athletes -- filed a class action lawsuit against the NCAA in federal district court.

The implications of O'Bannon's complaint are huge. Vermont Law School professor and Sports Law Blog's Michael McCann explains at SI.com:

... If O'Bannon and former student-athletes prevail or receive a favorable settlement, the NCAA, along with its member conferences and schools, could be required to pay tens of millions, if not hundreds of millions, of dollars in damages -- particularly since damages are trebled under federal antitrust law. The marketplace for goods may change as well, with potentially more competition over the identities and likenesses of former college stars.

A victory would also necessitate substantial changes in the relationship between the NCAA and student-athletes. Namely, the NCAA could be required to advise student-athletes of the importance of legal counsel and of ways in which student-athletes can obtain counsel.

Proponents of such an outcome would likely hail the creation of a more equitable bargaining relationship between student-athletes and the NCAA. Critics, in turn, would likely bemoan a more litigious experience for both student-athletes and athletic department officials. They might also worry about diminished NCAA protection of student-athletes, with swindlers and charlatans potentially having easier access to student-athletes as they transition into the real world.

Coming off a championship season at UCLA, O'Bannon was drafted 9th overall by New Jersey in the 1995 NBA draft. Knee injuries bothered O'Bannon, as he struggled to stick in the league. Two years after being drafted as a lottery pick, he was released by Orlando. Since his departure from the NBA in 1997, O'Bannon has played pro ball in Europe, earned his college degree, and has been working for an auto dealership near Las Vegas, where he lives with his family.

This morning, O'Bannon published a post at Lost Letterman, explaining his rationale for bringing the suit to court:

Every student-athlete - past, present and future - wishes to get paid when they're in school. Let's be honest about that.

At that time, we're amateur athletes. OK, we can't get paid. That's fine. When you go into school, it's already embedded in your head that you're not going to get paid. It's not some big news.

I don't know if college athletes should be paid when they're in school. That's a whole different topic. I'm not going to get into that.

My biggest thing right now is, once we leave the university and are done playing in the NCAA, one would think we'd be able to leave with our likeness. But we aren't able to. If you don't take your likeness with you, you should at least be compensated for every dime that is made off your name or likeness.

That's where this lawsuit comes in.

It's been a long time that we have been exploited. Things have got to change, for crying out loud.

Maybe the people who deserve compensation and have been exploited will no longer be exploited. Maybe now the NCAA will hold true to what it says it is: a non-profit organization.

The NCAA has been doing people wrong for a long time. It's about time something changes. That's the bottom line.

We haven't gotten into the odds of winning the case. And I can't say I followed previous cases about paying college athletes very closely, or at all for that matter. But I will be following this one closely.

If I'm viewed as someone who's linked to this case ahead of being viewed as a former Player of the Year and UCLA ballplayer, that's just the way it is. I just feel like it's my duty to do this.

God put me on this earth to do something. And it obviously wasn't to play NBA basketball, which I thought it was. I thought I was born to play the sport. I thought born to be a hall-of-fame ballplayer. But that didn't happen.

God has a plan for me, even if I don't know what it is.

So, when I'm given an opportunity to help someone else, to open doors for players who have been exploited like me and don't have a voice, I'm going to do it.

That voice has been given to me. I actually have legs to run here. It would be a sin for me not to.

I don't know if I'd be able to sleep if I hadn't done this. I haven't had a full night's sleep in a month because I've been worried about this case. Now that it's finally here, maybe I'll be able to actually get some sleep.

I have absolutely no idea how long this case could go. I'm in it for the long run.

It's not often you get to change the game. And it's not often you get to make an impact on a lot of people's lives - whether they know it or not. How someone would not want to do that is beyond me.

If the court awards damages to the plaintiffs, O'Bannon would like to set up a collective trust with the money for former collegiate athletes once they leave school.

Undoubtedly, the main actors in the suit are former amateur athletes and the NCAA. And as McCann writes in his explainer, the issues at hand will focus on the arcane matters of antitrust law and whether the athletes' "right of publicity" has been violated.

I also wonder if an ancillary benefit of the suit might be broadening the conversation toward the universities themselves. It's hard to voice this opinion without coming across as priggish -- particularly when you write about basketball for a living -- but is it possible that quasi-professional sports maintain too prominent a place at public universities?

I'd like to see the Ed O'Bannons of the world get what's theirs, and the triumph of competition in the free market is usually a good thing. But if this suit does anything to restore the proper balance between athletics and learning on campus, that will be its real achievement.