Why weren't any current basketball players added to O'Bannon suit?

Friday July 19th, 2013

Ed O'Bannon's lawsuit against the NCAA grew grew on Thursday when six current Division I football players were named as plaintiffs. The addition of current athletes should help O'Bannon's argument to certify the case as a class action suit, but it did raise one interesting question: why weren't there any current basketball players added?

According to a source close to O'Bannon's legal team, several college basketball players communicated interest in joining the suit. After some consideration, however, the players thought otherwise. Parents of those players, in particular, expressed concerns about the potential for retribution by the NCAA, specifically that negative information might surface that might impact the player's draft status and corresponding rookie NBA contract.

The parents focused on what they considered to be an unwarranted drop in Shabazz Muhammad's draft prospects. Muhammad was widely projected to be a top two pick before he entering UCLA as a freshman last fall. Although he played well for the Bruins -- he was named the Co-Freshman of the Year in the Pac-12 -- Muhammad encountered controversy off the court. The NCAA suspended Muhammad before UCLA's season opener because he allegedly received impermissible benefits. Muhammad also attracted negative attention when it was determined he was a year older than he claimed.

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In last month's NBA draft -- considered to be one of the weakest in years -- Muhammad slipped to No. 14, where he was selected by the Minnesota Timberwolves. The drop from being the first pick to the 14th pick is a difference in guaranteed money of about $5.9 million ($9.1 million to $3.2 million), plus fewer endorsement opportunities. Players said to be interested in joining O'Bannon, along with their parents, noticed.

Players who expect to play one season of college basketball and then turn pro also questioned the value of joining a lawsuit that centers on compensation for play while in college. As for good college basketball players who do not project to be NBA players, those players had concerns about losing starting jobs or minutes.

Expect the NCAA to argue there is legal significance to the absence of current basketball players in O'Bannon's class. U.S. District Judge Claudia Wilken is currently deciding whether or not to certify O'Bannon's class and, if so, how wide a class it should be. The presence of current players as named plaintiffs enhances O'Bannon's argument that current players should be in the class. The NCAA, however, insists such a class would be too broad since, among other reasons, star players may demand more than lesser players and the interests of current and former players may not be aligned. The lack of a current college basketball player might give Wilken reason to separate them from a certified class. Her decision on class certification is expected later this summer.

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.

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