The NCAA and its legal team asked a judge last week to delay the class-certification process in the Ed O’Bannon antitrust lawsuit.
Their rationale: the plaintiffs, who are former college athletes, have fundamentally changed their case by claiming that current players should be included.
O’Bannon, who is joined in the suit by such luminaries as Oscar Robertson and Bill Russell, filed their complaint three years ago, arguing that the NCAA, Collegiate Licensing Co., and Electronic Arts violated antitrust laws and profited from the commercial use of the their names, images, and likenesses.
The plaintiffs have shifted gears in seeking to include current student athletes in their lawsuit. They have also sought to avoid the sticky issue of paying current players if they were ultimately successful in the case.
“Although O’Bannon seeks to add current student-athletes to the class, he does not seek for current student-athletes to be paid during the term of their eligibility,” said Christian Dennie, a partner at Fort Worth-based Barlow Garsek & Simon, LLP. “O’Bannon, however, has proposed a trust for money generated by the licensing and use of student-athletes’ images, likenesses, and names. O’Bannon has proposed using an economic formula where student-athletes would receive half of the NCAA’s broadcasting revenue and one-third of video game revenue. The remainder of the revenue will continue to go to the NCAA, conference offices, and universities and colleges. Upon the exhaustion of eligibility, the student-athletes could access the trust to receive payments. The proposed amounts to be paid to individual student-athletes is unclear as is whether star student-athletes will be paid more than back-ups and how to evaluate whether student-athletes at certain schools should be paid more than others.”
NCAA General Counsel Donald Remy, for one, doesn’t appear to be worried about the underlying claim. He said in a statement that the NCAA does not attempt to prevent former athletes from selling or licensing their collegiate likeness, and has never done so.
“Unable to prove their original claims regarding former student-athletes, plaintiffs have now abandoned those claims and are attempting to assert new claims on behalf of current student-athletes,” said Remy. “Unfortunately, this about face runs them smack into a very old argument, and one that the NCAA has defeated in court many times.
“Plaintiffs now claim that the NCAA’s financial aid rules restrain ‘trade’ by preventing schools from ‘paying’ for ‘labor’ of certain current student-athletes by offering to share media royalties with those student-athletes. They want to be cut in on TV revenues, but every court that has examined this type of issue has said that plaintiffs have no right to such a claim. Many courts, including the United States Supreme Court, have repeatedly rejected the notion that the NCAA’s financial aid rules violate the Sherman Act by preventing these sorts of commercial transactions between schools and current student-athletes. Plaintiffs want the court to believe that student athletes are the same as professional athletes and unionized employees — which is pure fiction. We are confident that plaintiffs will find no more success in this case than they have in past cases.”
One of the central issues in the litigation figures to be the “Student-Athlete Statement,” which the plaintiffs claim requires the student-athlete to surrender to the NCAA and others the use of their name or picture. “The Form suggests that completing and signing this provision is a prerequisite for eligibility to play in intercollegiate athletics,” argued the plaintiffs’ attorneys.
The defendants have until Oct. 31 to file responses opposing certifying the suit as a class action. The hearing on the certification status is scheduled for March 7, 2013, and the trial set for February 2014.
