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July 27, 2013

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

By Justin Vernold
The Daily Star

---- — 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.”

It’s unlikely that the NCAA or the game companies will be able to dismiss such “exploitation” as an honest mistake or misunderstanding. As cited in the lawsuit, then-NCAA president Myles Brand said in 2008 that “(t)he right to license or sell one’s name, image and likeness is a property with economic value.” And the game companies should know better; professional athletes Michael Jordan, Shaquille O’Neal, Charles Barkley, Bill Parcells and Bill Belichick, for example, have been conspicuously absent from similar games in the past because of licensing disputes.

In other words, even if they won’t admit it, the NCAA and EA Sports probably knew all along that one can’t profit off athletes’ fame without compensating them. That explains the doomsday pronouncements of NCAA chief legal counsel Donald Remy, who said last week Hausfield’s “scheme to pay a small number of student-athletes threatens college sports as we know it.”

Hausfield and more than a dozen law firms have spent $20 million on the case since 2009, according to ESPN, and have the backing of college basketball legends Bill Russell and Oscar Robertson.  They’ve even set up a players commission, the Former College Athletes Association, for negotiating deals with the NCAA on broadcast rights, memorabilia sales and licensing agreements. The FCAA would be led in part by Kenneth Feinberg, a lawyer best known for handling victims’ compensation funds after the 9/11 and Boston Marathon terrorist attacks.

What does all of this mean for college sports? Most of the problem stems from the haphazard way football and basketball grew in this country — as clubs that began as a fun diversion from university life. The clubs became intertwined with the identities of some of our oldest academic institutions long before college sports was a multibillion-dollar industry, and it’s too late to separate them now. For what it’s worth, many other countries have amateur sports leagues that aren’t associated with centuries-old colleges, where “student-athletes” are just that — athletes who also have the desire to attend college, nothing more.

As a fan (go Huskers!), I’d hate to see Remy’s dire predictions come true, but I have a feeling he’s just crying wolf. Giving the players a fairly negotiated cut from that gigantic pile of money they produce on the NCAA’s behalf won’t necessarily be the death knell of college sports, although non-revenue-producing sports would likely take a serious hit.

Either way, it’s hard for me to sympathize with the NCAA. And maybe some of these schools spend an inordinate amount of their time and resources on bread and circuses, so to speak, and should focus more instead on philosophy. But as long as someone’s reaping a profit from the deeds and fame of college athletes, O’Bannon and his attorneys have a valid argument.

JUSTIN VERNOLD is a copy editor for The Daily Star. Contact him at jvernold@thedailystar.com.