U.S. District Judge Claudia Wilken's order last Friday to partially certify a class action against the NCAA could soon present college athletes with an interesting choice: whether to join a trade association that would negotiate contracts for them. No such association exists yet, but sources close to Ed O'Bannon's legal team say it could be formed in a matter of months. Organizational efforts, which involve several law firms, began immediately after Wilken's order to certify a class action against the NCAA's amateurism rules.
A trade association for college athletes would function as a players' association and would negotiate contacts with television networks, video game companies and other organizations that profit from college players' images, likenesses and names. This means, for example, that college sports video games with real players and names would become possible. The trade association would also seek negotiated compensation for college athletes in the form of long-term disability and pension benefits. Many of the trade association's goals would embrace those of the National College Players' Association, a California-based advocacy group for college athletes' rights.
As the trade association is now envisioned, all current and former Division I football and men's basketball players could join, though it is possible that Division I athletes from other sports may be invited as well. This entity would be classified as a non-profit trade association and not as a "union", mainly because student-athletes are students and not employees for purposes of labor law. Trade associations are very similar to unions. Most crucially, they can negotiate contracts on behalf of industry parties. In this case, student-athletes would be the primary industry party.
To be clear, Wilken's order was not on the merits of the case and NCAA amateurism rules, which bar student-athletes from receiving compensation, remain lawful and in effect. Her order only authorized Ed O'Bannon, Sam Keller and a group of other former and current Division I men's basketball and football players to challenge those rules on behalf of tens of thousands of people in similar situations. Future college athletes now have the most to gain from the O'Bannon case. A trial is set for next June and its outcome could give birth to a new system of college sports.
Sources say Wilken's order is not the first recent event to spur momentum for a college athlete trade association. The first was how the NCAA responded -- or, more accurately, didn't respond -- to Grambling State football payers when they boycotted practice and refused to play a game against Jackson State last month. To some, the NCAA's silence signaled it lacks "the will" to stop a ground swell for college athlete empowerment. Efforts to compensate college athletes are therefore not waiting for the resolution of the O'Bannon case or for the NCAA to change its rules. Those efforts, according to one source, "are happening right now."
It is unclear how a trade association would recruit college athletes to join, though there is speculation recruitment would involve a website where players could learn about the trade association and sign up. College players would likely be reminded of the substantial revenue they generate. Last Thursday's Oregon-Stanford game, which aired in primetime on ESPN, is illustrative of how popular and mainstream college sports have become.
Still, some college players may be reluctant to join what amounts to a union. They could reason that they are only in college for four years and that they do not want to professionalize their lives during that time. Fear of reprisal was said to discourage some current football and men's basketball players from joining O'Bannon's lawsuit. Also, until the NCAA changes its rules voluntarily or by court order, college players could lose their athletic eligibility by accepting any compensation. It stands to reason that a trade association would most effectively recruit members by convincing entire teams to join.
Former College Athletes Left Behind?
The possibility of compensation is less likely for former college athletes. Wilken denied class certification on possible damages suffered by college athletes in past video games and TV broadcasts. The denial means that O'Bannon and Keller cannot sue on behalf of others like them, thereby greatly reducing the overall value of the claims. This is disappointing news for those players' attorneys, who have spent considerable resources on the case in hopes of gaining a sizable share of an award or settlement.
Interestingly, Wilken's rationale for denying class certification on video game damages was apparently not raised by the NCAA. Instead, it was a rationale that she -- or perhaps one of her law clerks -- realized: rosters in NCAA-licensed video games had smaller rosters than their real-life counterparts, so not everyone in O'Bannon's purported class belonged. To the chagrin of O'Bannon, her rationale for denying class certification on TV damages appeared to result from testimony provided by O'Bannon's own experts. They offered a study which claimed that compensating Division I men's basketball players on scholarships would have discouraged some from leaving early for the NBA draft. While that conclusion may be empirically true, the analysis was flawed for purposes of class certification: if some players had stayed in college, then the same number would not have received scholarships and therefore it's unclear who was hurt or helped by NCAA amateurism rules.
Michael McCann is a Massachusetts attorney and the founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law. He is also the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law.