Current college athlete set to become face of Ed O'Bannon v. NCAA?

Friday June 21st, 2013

A current college athlete could soon step forward as part of Ed O'Bannon's lawsuit against the NCAA.
Greg Nelson/SI

The Curt Flood of major college sports is probably on a campus somewhere in America right now. He's probably participating today in some "voluntary" summer weightlifting or conditioning session. His head coach probably makes seven figures, and his school's conference probably signed a megabucks television deal in the past few years.

At some point this summer, this player will reveal himself. Like Flood, the former St. Louis Cardinals outfielder who challenged Major League Baseball's reserve clause in 1969 and changed the way professional athletes are paid in America by helping usher in the concept of free agency, this player will face derision and scorn. People happy with the status quo will wonder why someone who has it relatively good -- Flood was a pro baseball player; this college athlete receives free tuition, room and board -- is so greedy. But it isn't about greed. It's about the star employees in a multibillion-dollar business getting a chance to share in the revenues as they continue to skyrocket. The 20-year-olds didn't decide to make major college football and men's basketball a lucrative business. The grown-ups did. Now, those grown-ups have to deal with the consequences of their choices.

At a class certification hearing in a packed courtroom in Oakland, Calif., on Thursday, federal judge Claudia Wilken told plaintiffs' attorneys in former UCLA basketball player Ed O'Bannon's suit against the NCAA, Electronic Arts and the Collegiate Licensing Company that if they wanted to include current college athletes in their proposed class, they'd have to actually add at least one current athlete. Within the next few weeks, the plaintiffs probably will do just that.

MANDEL: Some movement, but no ruling in Ed O'Bannon v. NCAA class certification hearing

Those on the plaintiffs' side have said for months that they have current players ready to add their names to the suit provided the NCAA guarantees in writing that it won't retaliate by threatening the players' eligibility. No one trusts the NCAA to do the right thing and allow the players to proceed unhindered. It was only April when several high-profile athletic directors asked for anonymity before criticizing the NCAA because they feared NCAA officials would take out their frustrations on their schools' athletes. As we've seen how some of the sausage was made in the NCAA's investigation into Miami's football program, we've learned that some NCAA employees don't mind doing things the organization considers unethical to achieve a desired outcome. An NCAA attorney said in open court on Thursday that there would be no reprisals against players who joined the suit. The plaintiffs still want that guarantee in writing. That's probably sound reasoning.

If they get that guarantee, a player -- or players, depending on whether the plaintiffs want strength in numbers -- will step forward. Any player who does will get ripped in the media and by fans who want to cling to the illusion that sports with billion-dollar television deals are amateur enterprises. That player will have to be strong. Coaches and athletic directors will want him to fail, because money diverted to athletes means less money for them.

But why would a current athlete sign up for all this grief? Remember, Flood never got the payday he sought. He lost his case, but the attention he brought to the issue ultimately forced a change in public perception that in turn forced Major League Baseball to change its rules. Despite dire warnings that free agency would kill baseball, the sport now rakes in billions. Ramogi Huma, the former UCLA football player who runs the National College Players Association advocacy group, believes plenty of players would volunteer to become the Flood of college sports. "If they think their participation would strengthen the case and would bring quick justice and would get the NCAA to stop these practices, I think they're interested," Huma said on Thursday night. With the NCAA's Q rating in the toilet because of several recent scandals, Huma believes players will want to fight. "The more the NCAA is exposed on some of the practices that aren't very favorable, it makes it easier to stand up against," Huma said. "This is probably the best time for players to stand up against the NCAA."

Former St. Louis Cardinals outfielder Curt Flood challenged MLB's reserve clause in 1969.
Walter Iooss Jr./SI

The player who steps forward will need to be either a football or men's basketball player. For maximum effect, he'll need to be a starter at a school in either the ACC, Big 12, Big Ten, Pac-12 or SEC. He'll need to be the type of player who gets lots of screen time when ESPN or Fox or CBS shows his team's games. Essentially, he needs to be the type of player the networks are paying to show, even though an NCAA attorney argued -- with a straight face, no less -- on Thursday that networks merely pay for exclusive access to the venues and not the right to film the players at work.

The player who steps forward could be a hero to future college athletes who -- either through a settlement or through a courtroom defeat of the NCAA -- receive a portion of the riches being lavished upon the 60 or so wealthiest athletic programs. The player who steps forward could also be wasting his time. Wilken won't rule until later this summer, but she could choose not to certify the class, or she could choose to certify a class containing only former players. Or Wilken could certify the class and the plaintiffs could ultimately lose the case.

If adding a current player will convince Wilken to certify the class to include current and former players, then the plaintiffs will make sure they find their Flood. The real money comes with the current players. If the class consists only of former players, the case is about video and video games. If the class consists of current and former players, the case is about videos, video games and the billions schools bring in each year from selling their broadcast rights to television. Major conference football and basketball packages now bring in upwards of $200 million a year. The games of the College Football Playoff and its companion bowls will bring in nearly half a billion dollars. The NCAA basketball tournament contract averages $770 million a year. In a jury trial, potential damages jump from the millions to the billions if current players join the mix.

Why is this happening now? Because the revenues have grown, and the athletes' wages have remained capped at tuition, room and board. Sure, the cost of tuition has risen, but not nearly as substantially as the revenues of major athletic programs have risen. According to the U.S. Department of Education, the average tuition at a four-year public school cost $2,550 in 1980. By 2011, that number had jumped to $15,918. That's more than five times the price. That's a steep rise. Now let's look at the growth in revenue for one of the nation's most successful conferences. In 1980, the SEC distributed $4.1 million to its member schools. In 2013, it distributed $241.5 million. That's more than 58 times the 1980 figure. That's a much steeper jump. As the revenue kept rising, the arguments for keeping the wage capped sounded sillier and sillier.

What's amazing is that inside NCAA headquarters, the people at the top have long known this day was coming. At 9 a.m. on Aug. 3, 2005, Steve Mallonee, the NCAA's managing director of membership services, sent an email to Kevin Lennon, the NCAA's vice president for membership services. The email came after a Princeton compliance official wrote to David Berst, the NCAA's vice president for Division I, asking how EA Sports' NCAA Football 06 could include such accurate, identifiable information about current players. Berst asked Lennon and Mallonee for an answer. Mallonee provided it. He closed with a question of his own.

"The jersey number along with the position and vital statistics is clearly an attempt to have the public make the association with the current student-athlete," Mallonee wrote, according to a copy of the email placed in the O'Bannon case file by the plaintiffs. "And it appears to be working. The Best Damn Sports Show was aired several weeks ago and had Matt Leinart and Reggie Bush acknowledging that they were in the video game.

"That then raises the issue of whether getting in line with technology means being more restrictive or lenient with our rules. The article would imply that we might relax our rules a bit. The biggest concern I have is that such a position really does allow for the maximum commercial exploitation of the [student-athlete] and if that occurs, will it be long before we can defend not giving them a piece of the profits?"

Now, the NCAA is in the position of defending practices its own leaders considered indefensible eight years ago. In the next few weeks, it may have to begin defending those practices in court against one or more of the student-athletes for whom it claims to cheer so hard.

STAPLES: What's at stake? Who's involved? A complete O'Bannon case primer

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