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July 27, 2013

O'Bannon aims a stake at the NCAA's heart

The lawsuit filed against the NCAA by former UCLA basketball player Ed O’Bannon has been flying under the radar, but the case could have a profound impact on the future of college sports.

The suit was filed in 2009, and picked up momentum this year when U.S. District Judge Claudia Wilken in January rejected a motion by the NCAA to have the suit dismissed on procedural grounds. Last week, a handful of current college athletes were added to the suit to meet Wilken’s requirement that the suit include active players before it can proceed.

O’Bannon’s beef with the NCAA stems from the institution’s licensing and sale of game footage and player likenesses for video games, in particular EA Sports’ “NCAA Basketball” series. The games never use actual player names, but the power forward for the mid-90s UCLA “classic” team on “NCAA Basketball ‘09” matches O’Bannon’s height, build and skin tone, wears O’Bannon’s No. 31 jersey and even shoots left-handed.

“My friend said, ‘The funny thing about this is you didn’t get paid,’” said O’Bannon to the Las Vegas Sun in 2010. “He laughed pretty good and I just sat there thinking, ‘Wow, that’s true.’ My reaction was a little bit of embarrassment, but I was also disappointed that no one told me that they were going to be using my likeness to make this video game. They never sent me any paperwork. I didn’t release my face or my likeness.”

O’Bannon’s attorney, Michael Hausfield, on April 25 cited records showing that as far back as 2002, EA Sports acknowledged that the legality of using game footage and unlicensed player likenesses was dubious at best.

But the startling accusations Hausfield made last week, if proven true, could turn the NCAA and its shady subsidiary, the Collegiate Licensing Company, on their heads. While negotiating with the CLC in 2007, the plaintiffs claim, EA Sports offered to create a fund for players in exchange for using their names and likenesses. But the CLC asked that the funds instead go directly to the NCAA, the suit alleges, and the two parties “actively lobbied for, and obtained, administrative interpretations of those rules that permitted greater uncompensated exploitation of student-athletes’ names, images and likenesses.”

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