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Again, a Potential Game Changer
L. Jon Wertheim
February 22, 2010
Ed O'Bannon's suit may let athletes share in the NCAA's merchandising proceeds
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February 22, 2010

Again, A Potential Game Changer

Ed O'Bannon's suit may let athletes share in the NCAA's merchandising proceeds

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Ed O'Bannon, the Most Outstanding Player of the 1995 Final Four as a senior forward for NCAA champion UCLA, was watching a friend playing EA Sports's NCAA Basketball game several years ago and was surprised to see a player bearing his likeness. "How come I'm not getting a cut of that?" O'Bannon wondered aloud. He contacted former sneaker panjandrum Sonny Vaccaro, a longtime consigliere to athletes and foe of the NCAA. Vaccaro referred O'Bannon to a San Francisco law firm. Soon, O'Bannon was a lead plaintiff in a class-action suit filed on behalf of former Division I basketball and football players, challenging the NCAA's right to control in perpetuity the likenesses of college athletes. The plaintiffs claim that while the NCAA has made more than $4 billion marketing and merchandising everything from video games to commemorative DVDs, the athletes have never seen a dime, a violation of federal antitrust laws as well as their rights of publicity.

Last week a San Francisco federal judge, Claudia Wilken, denied the NCAA's motion to dismiss the key claims to the suit. (On Feb. 10 EA Sports announced that it will no longer produce new versions of its college basketball game.) While the suit does not attempt to quantify damages, Jon King, a lawyer at Hausfeld LLP, one of the firms handling the suit, contends that hundreds of millions of dollars are owed to the former athletes. (Under federal antitrust law victorious plaintiffs are entitled to triple damages.)

The NCAA released a statement declaring that last week's ruling "[does] not diminish ... confidence that we will ultimately prevail on all of the claims." The organization is likely to assert that the players granted the NCAA rights to use their images in perpetuity when they signed their student-athlete agreement as a condition of their scholarship. The 37-year-old O'Bannon, a former No. 1 draft choice of the Nets, never got his degree and is a car salesman in Las Vegas. He contends that his agreement, buried in an inch-thick binder, was vaguely worded and that he signed it as a teenager without a lawyer.

In past disputes the NCAA has settled antitrust claims before an appeals-court decision. That may not happen this time. If this suit succeeds, the MOP award that O'Bannon earned in the Bruins' title run could end up being a footnote on his résumé.

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