O’Bannon v. NCAA has the potential to change sports as we know them
By Matthew Piper
The Salt Lake TribuneFirst published Jun 07 2014 10:36AM
The NCAA athletics model is on the verge of change. That much is certain.
Unclear is to what extent one federal judge, Claudia Wilken, will drive that change, and whether she’ll shift it into high gear in the next few weeks when she rules in O’Bannon v. NCAA.
It’s been billed by some as the most significant lawsuit in college sports history, while others have said it’s not even the most important legal action against the NCAA at the moment.
Both statements might be true.
The Cliff’s Notes version is that former UCLA basketball star Ed O’Bannon and 20 other plaintiffs are asking Wilken to stop the NCAA from requiring athletes to sign away rights to profit off their "likeness," which they say is unfairly exploited for use in televised games, stock footage, merchandise and ticket sales.
Here are a few things to ponder before — barring a last-minute settlement or other legal hijinks — the bench trial gets underway Monday in Oakland:
Who’s the favorite? • It has been widely reported that the NCAA is in trouble.
That’s largely based on the perception that Wilken favors the plaintiffs. She has repeatedly denied attempts to delay the trial, and she commented at a summary judgment hearing that "I don’t think amateurism is going to be a useful word here."
But what Wilken seems to have meant is that amateurism has a subjective definition. The NCAA’s core argument is that its rules — whether they constitute amateurism or not — are what even the playing field between teams and attract fans. If there’s no market for student-athletes’ likenesses without those rules, then the plaintiffs’ points may be moot.
The argument might have merit, says Salt Lake sports attorney Mark O. Van Wagoner.
The rules are "intended to, I think, replicate the sort of competition that has always existed between colleges, before there was so much money in it," he said. "I think they can argue that that’s an important product, and that people want to see that."
Van Wagoner added: "I don’t think any of this is a lay-down hand for anybody."
What happens if O’Bannon wins? • That’s awfully murky.
The plaintiffs suggest that college athletes might then negotiate for group licensing contracts, with the profits being placed into a trust for them to access after college. But even though those licenses earn the NCAA $4 billion each year, whatever is then split among thousands of student-athletes might not amount to riches.
Those who stand to gain the most would be beneficiaries of individual endorsement deals, i.e. the Jabari Parkers and Johnny Manziels, who might also be able to sign with agents.
Those who stand to lose include athletic department staff and athletes in non-revenue sports.
Utah athletic director Chris Hill says that if the ruling or others like it threaten the foundation of the existing student-athlete model, "Then you have to decide if that model’s worth it. If that model can be sustained. Do people still go to school? And if they don’t go to school, why would a university attach its reputation to a semi-professional team?"
After Wilken rules, what’s next? • The potential financial impact of the plaintiffs winning would lead you to think the NCAA will litigate to the bitter end.
First, that’d take them to the Ninth Circuit appellate court. Then, if the NCAA lost there, it’d be up to the Supreme Court to decide whether to take the case.
But the Supreme Court is traditionally inclined toward cases that involve multiple circuit court rulings with differing interpretations of the law. With the O’Bannon case, they’d simply be agreeing or disagreeing with the Ninth Circuit, and not clearing up any legal conflicts.
The plaintiffs may be less likely to appeal a pro-NCAA ruling from Wilken, given that The Associated Press reports they’ve spent more than $34 million just to reach this point.
But the courtroom won’t be empty for long.
It was ruled this week that Wilken will hear two other cases that pose a severe threat to the NCAA’s student-athlete model. In one, a former West Virginia player claims that the NCAA runs afoul of antitrust laws by capping an athletic scholarship below the actual cost of attendance, and in the other, a Clemson player seeks a free market for players when they sign with a school.
Wilken’s ruling in the O’Bannon case doesn’t necessarily mean she’ll rule for or against the NCAA in the other cases, but the perception of leverage may prompt settlements.
And it might prompt further lawsuits.