Darius Robinson, current players become face of O'Bannon v. NCAA

Friday July 19th, 2013

Clemson's Darius Robinson is one of six current players to be added to a potential landmark NCAA suit.
Photo courtesy of Clemson Sports Information

Clemson CB No. 21 is now plaintiff No. 19 in a landmark lawsuit against the NCAA.

Thursday, six current college football players added their names to a group of 16 former college football and basketball players who have joined to sue the NCAA, video game maker EA Sports and the Collegiate Licensing Company. One of those current players was Clemson senior cornerback Darius Robinson, who sees a striking resemblance between himself and a certain senior cornerback at Clemson in the NCAA Football 14 game recently released by EA Sports.

"That's me all the way," Robinson said in an interview Thursday night after attorneys filed an amended complaint to the case, which is being tried in federal court in the Northern District of California. It's Robinson all right -- for better and for worse. "It's as close as it gets," he said. "Size, ratings. I don't have the best hands as a corner, so I always drop interceptions on the video game." And does he occasionally drop interceptions in real life? "Sometimes," Robinson said with a laugh. "I'm not going to lie."(There is one slight difference. Robinson, who wore No. 21 for three years, recently switched to No. 8. His Twitter handle remains @21FearGod.)

Now Robinson will join five other current players -- two from the Pac-12, two from the Big Ten and one from the SEC -- in the fight against the NCAA's model of amateurism, which holds that no matter how much revenue their teams bring in or how much that revenue increases over a period of years, athletes are entitled only to tuition, room and board as payment for their services. Robinson isn't ungrateful. He's thrilled to have a scholarship, but he has spent three years inside the machine, and he has learned a little about how the sausage is made for your Saturday enjoyment. "This is definitely something that I would love to get involved in," Robinson said, "because I really do believe in it."

Robinson's inspiration to join the suit came a few months ago when he learned the same lesson former Minnesota wrestler Joel Bauman learned earlier this year. When you're an athlete at an NCAA institution, your name and your face do not belong to you. Robinson wanted to get a job to earn extra money, but he couldn't work regular hours because of his commitment to the football team. So he sought work with more flexible hours. He hit upon 5LINX, a multilevel marketing company with a business model similar to Amway. While such companies certainly have their drawbacks, 5LINX does offer direct sales. In Robinson's case, he intended to sell mobile phones and phone plans.

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Someone in Clemson's compliance department noticed an uptick in business-related posts on Robinson's Facebook and Instagram accounts, and Robinson was called in to meet with compliance officials. "According to the NCAA, the rule is that a student-athlete can have his own business," Robinson said. "But they were saying that I couldn't have it because I couldn't detach my name from it. They were saying I couldn't promote it. ... I didn't see a reason for me having a business if I couldn't promote it." Basically, Robinson wasn't allowed to use his name or face in connection to his business. This rule exists so boosters can't shuttle extra money to players for bogus products or services, but it also stops athletes from earning legitimate income under their own names. (On the NCAA's own website, you can find the tale of a Northwestern swimmer forced to use a pseudonym before she could self-publish a book.)

Robinson was incredulous. He pointed out that if he had time, he could go to work at a retail store selling mobile phones -- using his real name -- and not run afoul of NCAA rules. Why couldn't he do the same thing independently? Compliance officials, who were just doing their jobs and protecting Robinson's eligibility, told him he shouldn't risk NCAA trouble. So he dropped his business plans.

The episode made Robinson more interested in the inner workings of college athletics. He had seen stories about the huge new television contracts signed by various conferences -- including the ACC, of which Clemson is a member -- but he hadn't paid much attention. Of course he and his teammates had noticed someone was making money off a video game featuring their likenesses, but he hadn't thought much about it. That all changed after Robinson's run-in with compliance. "We need to be more educated about the entire process," Robinson said. "We really just know nothing."

Robinson wanted to make one thing clear to Clemson fans, though. This quest will not harm the Tigers on the field. The College Park, Ga., native, who came back from a fractured ankle to rejoin the first-team defense this spring, said his participation in the suit will not distract him from his role with a Clemson team that should be very good this fall. "It's something that I really believe in," he said. "But at the same time, I'm still focused on this upcoming season."

Robinson got himself hooked up with the plaintiffs' attorneys, who are led by Washington-based Michael Hausfeld. Hausfeld's team also signed up Arizona linebacker Jake Fischer, Arizona kicker Jake Smith, Vanderbilt linebacker Chase Garnham, Minnesota tight end Moses Alipate and Minnesota linebacker Victor Keise. Patrick Vint of SBNation pointed out that while Fischer, Garnham, Smith and Robinson are readily identifiable in the NCAA Football 2014 video game, Alipate and Keise do not have avatars in the game. In the amended complaint, plaintiffs' attorneys point out Alipate and Keise signed "one or more release forms." So the inclusion of the two Minnesota players may serve to challenge the name and likeness release forms Big Ten athletes are required to sign. In an interview Thursday, Hausfeld declined to discuss specific strategies. "We wanted to show the diversity of commitment in the different conferences, the different schools," Hausfeld said. "This is an issue that has caught their attention."

It took guts for the players to stand up to the NCAA, just as it takes guts for anyone who stands up to the establishment and asks for a better deal. But the players have plenty of support. The plaintiffs have a huge legal team that has sunk millions into this case because the attorneys see the NCAA and the schools and conferences that run major college sports as a poor man's Big Tobacco. The players also have support on campus. Fischer and Smith, for example, discussed their participation at length with Arizona football coach Rich Rodriguez and Wildcats athletic director Greg Byrne. "While we do not support the lawsuit, we support their right to be involved and express their opinion," Byrne said in a statement. "They are two fine young men and we are glad they are part of our program and university."

When the names of the players were released Thursday, the reaction was predictable. Critics on Twitter suggested they didn't buy the NCAA Football video game to play as Arizona's kicker or Vanderbilt's middle linebacker. But whether they realize it or not, they bought the game for the realism. There is a reason EA Sports employees spend valuable hours trying to match the size and speed attributes of backup tight ends on mid-tier Big 12 teams to their real-life counterparts. This is a business decision, an investment based on market research. The game sells better when it is as realistic as possible.

Another prong of the suit is television money. The rights to the games in which these athletes will play are sold for massive amounts. The Pac-12 has a 12-year, $3 billion deal with Fox and ESPN for select football and men's basketball games. Other games are broadcast on the Pac-12 Networks, which are sold to cable providers for a per-subscriber fee. All that money is redistributed to the schools, which will make millions more than they did a few years ago without giving a raise to the performers people are paying to see. The same is true of the SEC, which is in the middle of ESPN and CBS deals that will pay about $3 billion over 15 years. That figure will rise when the league and ESPN team to launch the SEC Network in 2014. The Big Ten, the Big 12 and the ACC also have big-money deals that dwarf what they made even 15 years ago.

Athletic directors, who have had no cap placed on their earnings as revenues have mushroomed, will argue that if the court forces more to players in the revenue sports (football and men's basketball), it will leave less money to support non-revenue sports such as volleyball, soccer and swimming. This is true, and a victory for the plaintiffs or a settlement might force schools to cut sports. This may sound insensitive, but what direct responsibility does a football player have to fund a swimmer's scholarship? None.

The players who joined the lawsuit Thursday will likely be long finished with their athletic careers by the time this case gets resolved. They're all seniors and they'll exhaust their eligibility before the scheduled trial date in 2014. If the case goes to trial, expect any verdict to be appealed all the way to the U.S. Supreme Court. That will take years. The players probably won't get rich individually even if they win, and they'll have to turn the other cheek to criticism from people who think athletes should just shut up and play ball.

In June, when Hausfeld said the plaintiffs would add at least one current athlete, I wrote that whoever joined the suit could be remembered as the Curt Flood of college sports. Flood, if you'll recall, faced mostly scorn and never reaped a financial benefit from his decision to challenge Major League Baseball's reserve clause. But generations of future professional athletes benefited from Flood's willingness to fight for a more reasonable split of the revenue between management and the labor force. These players will face criticism as well. But they might be the ones who pave the way for future generations of college football and basketball players to receive a larger share of the bounty they help create.

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