Two potentially game-changing developments in O'Bannon vs. NCAA
As both sides vociferously make their arguments in the landmark O'Bannon vs. NCAA case, two recent game-changing developments could greatly affect the outcome.
U.S District Judge Claudia Wilken recently ruled in favor of a class action challenge to NCAA amateurism rules. But she also barred Ed O'Bannon, Sam Keller, Bill Russell and other players from suing for damages on behalf of tens of thousands of former and current Division I men's basketball and football players. Wilken's order means that players cannot sue as a class over past and current NCAA profits arising from television broadcasts, video games, trading cards and other products. Her order is a serious setback to O'Bannon and other former players who believe they have deserve to be compensated.
Wilken's order, however, doesn't prevent these same players from filing new and individual lawsuits against the NCAA. In fact, players could file scores of lawsuits in different federal courts across the country. If the filings were coordinated, they could all be submitted to courts on the same day. O'Bannon's supporters might call it a "day of reckoning."
Multiple lawsuits has sometimes worked when class certification was denied, including in antitrust and products liability cases. Provided there are willing players, the strategy would be fairly simple. Individual player complaints would be filed in different courts and the complaints would articulate very similar descriptions of law. Each complaint would name a different player and detail: the player's history as an NCAA student-athlete; a specific accounting of how the NCAA allegedly harmed this player; and an explanation for why the player has sued in a particular court. Players wouldn't need O'Bannon's blessing to sue. Even if players weren't interested in potential money from an NCAA lawsuit, they might still find reason to sue. Current and former NBA and NFL stars who believe in O'Bannon's cause, for instance, could sue and pledge to donate any award to charity.
One crucial advantage to players suing individually would be to reduce, if not eliminate, the two critiques Wilken identified in her order. Wilken emphasized that video game rosters were smaller than actual rosters, meaning some players in a class of tens of thousands would not have been in those games. A select group of former players, however, could more credibly establish that they were in those games.
Wilken also stressed that some former college players benefited by amateurism rules. She noted that if college athletes had been compensated, some would have stayed in college rather than turn pro, meaning other players would not have received their scholarships. Players who sue in new, individualized lawsuits could attempt to specifically explain how they were harmed, not helped, by NCAA amateurism rules.
To be sure, fewer overall players would sue the NCAA in a "day of reckoning" strategy than in the class action O'Bannon sought. The number of players would likely be in the dozens or hundreds rather than in the tens of thousands. Still, a leaner and identifiable group of players could help O'Bannon's case. Instead of litigating on behalf of lesser known players who the NCAA might persuasively argue received far more in scholarship than they generated in revenue, the plaintiffs in the multiple-lawsuit approach would all have been solid or star college players.
When would a "day of reckoning" take place? Probably not over the next few weeks, as the holidays and bowl games wouldn't fit this kind of large-scale litigation effort. But watch for activity in the week or so following the BCS championship game.
As reported by SI.com last month, organizational efforts are underway to form a college athletes' trade association. The association would effectively be a players' union and would negotiate on behalf of college athletes who elect to join it. The association would enter into deals with television networks and video game companies, among others, for payment to college athletes that appear in broadcasts or in video games. SI.com has learned that several national public relations firms have submitted bids to create websites and other materials that would be used by the association to recruit college athletes.
There are three main hurdles to the putative association's plans to convince networks and others to pay college athletes.
1. The First Amendment may render college athletes "free" for live broadcasts
In court papers filed last Thursday, the NCAA argued that college athletes are not entitled to revenue from live broadcasts of their games. The NCAA's theory rests on the First Amendment, which generally allows broadcast companies to televise live news events (such as political events or press conferences) without compensating persons shown in those events. The underlying logic is that the public has a stake in knowing about live events and broadcast companies should not be deterred from covering news out of concern they may be sued if they don't pay. The NCAA contends this same principle applies to live broadcasts of college games.
Expect O'Bannon to raise several points in response. O'Bannon will likely ask why does the NCAA and its members demand payment from broadcast companies to televise games if those games are free news? O'Bannon will probably also distinguish a scheduled game from a spontaneous news event. While both are live, only one is live by design. He might also stress that news events are generally driven by policy or social considerations, whereas live broadcasts of college games are big business.
2. Television networks may not be willing to negotiate with a trade association
ESPN, CBS and other networks have already paid, or agreed to pay, the NCAA and its members considerable money to broadcast games. These networks assumed they were buying the entire rights to the broadcasts and their price point reflected that assumption. Obviously, these networks do not want to incur a new fee to pay for athletes in games, as the overall cost of broadcasting those games would increase.
According to sources, this second hurdle can be overcome. The trade association would stress to networks that the cost of paying players could be "passed on" to sponsors which pay for game commercials. If that fails, the trade association would admonish networks that if they don't pay to broadcast players, those players will boycott games. To advance such a warning, the Grambling State players' recent boycott of a game with Jackson State would be highlighted.
Some have doubts whether college players would boycott games. Charles Grantham, former executive director of the National Basketball Players' Association, cautions that there were unique aspects to the Grambling State boycott. "The kids at Grambling were treated poorly and that led them to boycott," Grantham stresses. "Most Division I athletes are treated well -- in some cases extremely well. What exactly are they going to boycott?"
Nonetheless, a college players' association would make an economic case to college players. It would emphasize that they are now on nationally-televised broadcasts, even aired against NFL games on Thursday night -- traditionally the most-watched night of network programming. Put another way, college athletes would be told they are prime time TV stars and should be paid as such.
3. The optics of college athletes "being paid" could turn off fans
Last Thursday's filing by the NCAA also raised the argument that paying college players would damage and possibly destroy fan interest in college sports. The NCAA included sworn statements of numerous college presidents, conference commissioners and athletics directors all expressing that view. For instance, Baylor University president Kenneth Starr -- a former federal judge -- stressed, "the goodwill and financial support for the university life that athletics help to generate would be undermined if schools and universities were to enter the business of paying student-athletes for their appearance on television or otherwise." Starr further warned, "parents, alumni, and other members of the broader communities ... would be likely to view such programs as professional endeavors, undeserving of financial or fan support."
O'Bannon's attorneys, of course, disagree with Starr's ominous prediction. They also point out that they envision college athletes as unpaid until the end of their college careers, when they would then draw from a trust. The trust would reflect monies generated by the licensing and sale of the players' names, images and likenesses. Grantham contends some of this money should be deferred to later years and devoted to benefits. "No one wants to see players getting $10K a game," Grantham emphasizes. "But players getting health care and disability benefits, and deferred payments later in life when they have families and obligations -- that's a different story."
Michael McCann is a Massachusetts attorney and the founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law. He is also the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law.