Separating truth from myth before the Ed O'Bannon v. NCAA trial
SI's Andy Staples presents (possible) opening remarks for both sides in O'Bannon v. the NCAA.
Ed O'Bannon v. the NCAA begins on Monday in a federal courtroom in Oakland, Calif. Since the case isn't easily explained in 30-second sound bytes, and since it can't be reduced to a simple A or B argument, you haven't seen much about it on television. But make no mistake, this case is far more important than debating whether Johnny Manziel should have gone to Las Vegas last month. This isn't the only case pending against the NCAA -- in fact, that's one of the more interesting facets of the story -- but it represents the stiffest legal challenge to the business model of major college sports to date.
Unfortunately, because the case has morphed so much since it was originally filed in 2009, it has been difficult to follow for the vast majority who prefer to look past the wonkiness and legal maneuvering and skip straight to the part where we figure out what it all means. That moment is coming. But first, let's separate some truth from myth.
This case is about video games.
MYTH: It was originally about video games. It isn't anymore. Now it's about the entire business model for major college athletics. According to the origin story, former UCLA basketball star O'Bannon was at a friend's house one day and noticed someone playing a video game. In the game, the 1995 Bruins team featured a player wearing No. 31 who had the same physical appearance and skill characteristics as O'Bannon. The NCAA and UCLA had sold O'Bannon's likeness to game-maker EA Sports, but O'Bannon had not been compensated. Plenty of former college football and basketball stars probably had a similar experience, but O'Bannon was selected to be the face of this lawsuit.
Despite the fact that his name is mentioned most frequently, O'Bannon isn't the most important jock in the case. That distinction belongs to the younger plaintiffs who joined the suit last July while they were still active players for the football teams at NCAA member schools. It was that group that was certified as a class by U.S. District Judge Claudia Wilken. Those players represent every player currently in school and all those who will come after them. The plaintiffs argue that the NCAA and its member schools -- through rules voted on by the schools and administered by the NCAA -- have acted as a cartel and conspired to fix the price for the names, images and likenesses of these players at $0 while at the same time selling those names, images and likenesses for billions of dollars in television, DVD and video game rights deals. The NCAA will argue that the players are compensated with tuition, room and board and that they sign away their name, image and likeness rights in return.
The plaintiffs have already produced damning evidence that NCAA and school officials knew they were selling player likenesses for video games. That is a major reason why Electronic Arts, which was originally named in the suit, got out of the business of college sports games. EA Sports and fellow co-defendant the Collegiate Licensing Company finalized a $40 million settlement with the plaintiffs last week. That leaves the NCAA by itself. Plaintiffs want an injunction that would bar the NCAA and schools from selling athletes' names, images and likenesses without allowing the athletes -- as a group -- to participate in the sale of those rights. (Professional leagues do this in conjunction with their respective players' unions.) The NCAA will argue that such an injunction would be anti-competitive because it would give some schools an unfair competitive advantage over others. It could also argue that the consumer -- the college sports viewers whose cable and satellite expenditures fund those lucrative TV deals -- would be harmed by a decrease in parity on the field.
If O'Bannon or any of the other plaintiffs still want to get paid by the NCAA because it sold their publicity rights to a video game-maker without permission, they should root for the plaintiffs in former Arizona State quarterback Sam Keller's case against the organization. At one point, that case was combined with O'Bannon's, but now it has been separated and placed on track for another trial.
Finally, a jury of regular folks will judge the NCAA's business model.
MYTH: Last month, the plaintiffs switched gears -- they've done a lot of that during the course of this case -- and requested a bench trial instead of a jury trial. The plaintiffs won't seek individual damages, but instead seek injunctive relief. Basically, the plaintiffs want Wilken to declare a pretty important part of the NCAA and schools' business model for athletics to be illegal.
Those of us who received most of our legal training from L.A. Law -- or for the younger, less fortunate generation Franklin & Bash -- will be sorely disappointed at the lack of a concrete, finite, gavel-banging decision at the close of this trial. Like her colleagues in the federal appeals courts, Wilken will take time to consider the arguments she has heard before writing and releasing a verdict.
This is a gambit by a bunch of lawyers to collect a lot of fees.
TRUTH: This is not an insult. It's just the truth. In the legal community, the NCAA is considered low-hanging fruit because of the relatively recent infusion of cash into the system that has transformed from what began more than 100 years ago as a group of extracurricular pursuits into a multibillion-dollar business. Combine that with the NCAA's rules -- which seem reasonable inside the academia bubble but can seem nonsensical to those not invested in the system -- and the NCAA makes an ideal target. Attorneys have been lining up to sue the NCAA over these issues as well as football concussions.
You know about O'Bannon and Keller. In January, a panel of judges consolidated 10 concussion-related cases against the NCAA into one case in the northern district of Illinois. On Wednesday, former LSU linebacker Mike Anderson dismissed his federal suit against the NCAA and helmet-maker Riddell so he can re-file the case in state court in Louisiana.
Meanwhile, the case that truly scares the leaders of the college sports world sits in a federal courthouse in New Jersey. Jeffrey Kessler, who argued the Freeman McNeil v. the National Football League case that brought free agency to the NFL, filed it, and it includes football players from Clemson, Cal and UTEP and a basketball player from Rutgers as plaintiffs. Instead of only attacking the NCAA, Kessler smartly named the five wealthiest conferences (the ACC, Big 12, Big Ten, Pac-12 and SEC) in the suit, which alleges that the NCAA and schools have acted as a cartel to create a wage ceiling for athletes (tuition, room and board and no more). The suit doesn't seek damages. Rather, it seeks to dismantle the NCAA's rulebook and impose a truly open market on football and men's basketball, the two sports that bring in the vast majority of the money.
The deck is stacked against the NCAA in O'Bannon.
TRUTH: Perhaps the worst thing the NCAA's attorneys could hear was this statement from Wilken during a hearing in February: "I don't think amateurism is going to be a useful word here."
In most arguments, the NCAA and member schools have held out the concept of amateurism as some sort of unimpeachable virtue that makes everything kosher. Amateurism was originally conceived in 19th century England to ensure rich people didn't lose to poor people at sports, but that's neither here nor there. Since the NCAA's founding, the word has become tied to the notion of sports used to enrich academic pursuits. In some sports (football), that was probably never true at the highest levels. In others (any sport that doesn't make money), that concept remains true to this day. Unfortunately for the NCAA, this case is only about the sports that generate money. NCAA attorneys could replace the word "amateurism" with the word "unicorn" and get about the same result.
Wilken also won't allow the NCAA's attorneys to argue about the possible negative effects that a plaintiffs' victory would have on non-revenue sports. Her reasoning is that no one forces schools to sponsor teams that can't financially support themselves, so she considers the impact on those teams irrelevant in the eyes of the law. This doesn't leave much for the NCAA to argue except the pro-competitive aspects of its rules. Wilken will let the NCAA's attorneys argue that the rules ensure a mutual benefit between athletics and academics, but she has promised to shut down that argument quickly if the attorneys can't prove a direct link.
In a filing on Wednesday, the NCAA's attorneys listed 19 potential witnesses -- including NCAA president Mark Emmert, Big Ten commissioner Jim Delany and SEC executive associate commissioner Greg Sankey -- who they might call in support of their case. The real fireworks could come when the much-maligned Emmert spars with plaintiffs' attorneys, who wanted to call him as one of their own witnesses. If Delany and Sankey are called, they could provide the most entertaining testimonies. Both understand the system and its flaws completely. They're also whip-smart and quick on their feet, so they can match wits with anyone from the plaintiffs' side.
Even with those two as witnesses, if the NCAA prevails, its legal team will have earned every penny.
A verdict in favor of the plaintiffs will cause the NCAA to crumble.
MYTH: Nothing will happen immediately, because no matter what Wilken decides, this case will get appealed. More than likely, it will get appealed again after the circuit court rules. After that, it would be up to the U.S. Supreme Court to decide whether it wants to consider the case. As SI.com legal analyst Michael McCann points out, the Supreme Court's docket is a tough ticket.
It was a case decided by the Supreme Court that wound up causing many of these issues in the first place. NCAA v. Board of Regents of the University of Oklahoma, which was decided on June 27, 1984, allowed schools and conferences to sell their teams' television broadcast rights and stripped the NCAA of its control over the sale of those rights. That paved the way for the explosion in revenues that spawned most of the cases the NCAA is currently fighting.
This case could significantly change the business model for major college sports.
TRUTH: If the plaintiffs prevail, the NCAA will appeal. But if the NCAA loses its appeal, players will win the chance to participate in the sale of their publicity rights. That would force schools to cut players in on those lucrative TV deals.
Would that turn of events destroy college athletics as NCAA doomsayers have warned? Probably not. As long as there is money to be made in football and men's basketball, someone will be willing to administer those sports. Would non-revenue teams face scholarship cuts? That unfortunately could be true. But schools funded those sports before football turned into the financial juggernaut it is today, so blaming an order to share the wealth with the labor force for the demise of non-revenue sports wouldn't be entirely honest. School leaders would have to choose how to best allot their resources.
In several ways, the O'Bannon case has already changed the way the NCAA and schools operate. The autonomy plan currently being discussed by the five wealthiest conferences and the rest of Division I is a direct response to lawsuits such as this. The five wealthy conferences -- the most obvious targets of future suits -- want the ability to give more to athletes and shrink the potential plaintiff pool. This includes providing athletes with more money as well as voting rights with regard to NCAA rules. No one will say it publicly, but the autonomy plan would also give those leagues the flexibility to change the rules, thus allowing them to settle the most threatening cases.
That probably won't happen with O'Bannon. The NCAA and schools have run out of time. Now, a courtroom in Oakland will become the most important arena in major college sports.