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NCAA: O'Bannon case a possible bellwether for big changes in college sports

Published July 1, 2014 10:52 pm

NCAA • Arguments over but issues remain in landmark lawsuit.
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There are briefs to be filed, but the arguments in one of the most significant court cases affecting college sports are over.

O'Bannon v. NCAA is in the hands of U.S. District Court Judge Claudia Wilken, who is expected to issue a relatively speedy — in legal terms — decision by early August.

It's anyone's guess what could happen: The complicated and somewhat imprecise nature of antitrust law means that the NCAA could dodge a bullet or be forced to make some major concessions depending on how Wilken interprets the case.

But there are larger issues looming, legal experts say, and more serious lawsuits coming down the pipe. And if Wilken sides with O'Bannon, asserting that student-athletes have the right to negotiate compensation for usage of their names, images and likenesses, it could be a sign that the NCAA as we know it will come tumbling down, or at least forced to totally restructure a century-old system of amateurism.

While the case may not necessarily be a "landmark" game-changer, it will be a distinct sign of which way the wind is blowing.

"We're talking about at least 30 some-odd lawsuits against the NCAA, in different forums and arguing different theories," Notre Dame law professor Joseph Bauer said. "It's kind of fascinating to see what kind of huge changes might happen."

For three weeks, the two sides have laid out their best punches. The plaintiffs — known best as a group under the name of former UCLA basketball star Ed O'Bannon — have argued that the college football and basketball athletes who command a large public following have the right to make money off their image when it comes to TV broadcasts, video games and jerseys, among other moneymakers. The NCAA asserts that introducing this element could ruin the competitive nature and fan interest in college sports.

On an antitrust law basis, Indiana University law professor Gary Roberts said, the plaintiffs are going into a nebulous region. Traditional antitrust cases are about harm coming to consumers, but this case isn't about that particular harm. The structure and mission of the NCAA is so unique, it's hard to compare it to others. And publicity rights aren't typically a component of such cases.

Then again, it's up to Wilken whether the plaintifs have shown that the NCAA's control over such issues is unfair and illegal.

"In my view, the O'Bannon case is a convoluted, conceptually weak antitrust case," he said. "But antitrust law is sufficiently squishy and vague and malleable that almost anything can be illegal. If she sees the system as unfair, and she's hinted that she has some sympathy for the plaintiffs in this case, she could order the NCAA to make changes."

Although current and former student-athletes are the ones hoping to gain from the cases against the NCAA, experts agree it's the colleges' push to commercialize that has brought the NCAA to this precarious point.

In 1984, the Supreme Court struck down an NCAA ruling that limited the number of times football teams could be broadcast on TV. In a dissenting opinion, Justice Byron White, a former college football star, warned the ruling could launch college sports into a more economically driven stratosphere.

Time has proven him wise. High-powered programs make millions off television deals, licensing, and other interests. With sky-high salaries for coaches, athletic directors and schools spending on new stadiums and athletic facilities, it's not surprising athletes have come looking for their piece of the pie.

"So many of these schools were in a rush to squeeze as much money out of the system as they could: TV deals, video games, jerseys, cards, all that." Roberts said. "A way to avoid it would've been to stop being so greedy. Now it looks like the NCAA is throwing kids a bone with some of its changes. But the ball is rolling downhill, and I think there's going to be some really huge changes through litigation."

Once the decision comes down in O'Bannon, there's almost certainly guaranteed to be an appeal to the Ninth Circuit Court of Appeals. If the plaintiffs prevail in the legal battle that will almost certainly take a year or more to play out, athletes may be able to join trade associations to negotiate the terms of their publicity rights.

Wilken is scheduled to hear more cases against the NCAA that could be even more far-reaching than O'Bannon. A case was recently filed in New Jersey arguing that the NCAA unfairly sets the value of athletic scholarships, which experts interviewed by the Tribune said could be a stronger antitrust case.

But O'Bannon has the potential to be the "shot heard 'round the world," kicking off a long series of courtroom conflicts for the NCAA.

"It the first battle in the war we're seeing," said Mattthew Mitten, director of the National Sports Law Institute at Marquette. "It goes a long way to predicting how some of these other cases come out. It's pretty important."

kgoon@sltrib.com

Twitter: @kylegoon