NCAA needs to be ready to lose Ed O’Bannon case
06/08/2014 10:40 PM
06/08/2014 10:51 PM
If Missouri had only guarded Tyus Edney better in 1995, the NCAA must be thinking.
Because UCLA’s Edney went the length of the court for a buzzer-beating layup in an NCAA Tournament second-round game, the Bruins beat the Tigers by a point and advanced to the next round.
UCLA kept winning, reaching the championship game, and behind a 30-point, 17-rebound performance by Ed O’Bannon, defeated Arkansas in an outcome that harkened back to the Bruins’ glory days.
Turns out, the game may have had a profound impact on the future of college sports.
Today, the amateur-sports idea goes on trial in Oakland, Calif., and O’Bannon is the key figure.
In 2009, O’Bannon filed a lawsuit against the NCAA, Electronic Arts and the Collegiate Licensing Company after seeing a friend’s child playing a video game. It was the “classic teams” portion of EA Sports’ NCAA Basketball 09, and there was No. 31 in a UCLA jersey, bald and shooting left-handed. The game didn’t identify him or any other player. But there was no mistaking who it was supposed to be.
O’Bannon had been out of basketball since 2004 and has coached youth basketball and worked at a car dealership since. He’s since added another responsibility: lead plaintiff in the case that could become a college sports game-changer.
Five years after filing, U.S. District Judge Claudia Wilken will rule in a bench trial — no jury — whether college athletes can negotiate their own deals when it comes to the commercial use of their names, images and likeness. Remember the fuss over Johnny Manziel’s autograph sessions? If O’Bannon wins, athletes likely would be able to sell their signatures.
The plaintiffs will argue that the NCAA has acted as a cartel and has conspired to prevent athletes from making money, at the same time cashing in on the athletes’ efforts with multibillion television contracts. They will no doubt point to a couple of contract extensions announced this week that will pay Alabama football coach Nick Saban $6.5 million annually through 2022 and Kentucky basketball coach John Calipari $52 million over seven years.
Not to mention the figures released by the major conferences in the last couple of weeks about revenue distribution from major conferences to its members, mostly in the $20 million-to-$25 million range, from TV, bowl and NCAA Tournament revenue.
Much has changed since the suit was filed. The O’Bannon plaintiffs aren’t seeking money damages, including potentially billions from past television broadcasts. They simply want the rule change.
There’s already been a monetary victory for the athletes. Last week, EA and CLC announced a $40 million settlement that will allow current athletes to make claims. O’Bannon will receive $15,000 from the settlement.
O’Bannon has proposed a deferred compensation model: Any revenue earned by an athlete would be placed in a trust fund and become available when the athlete is finished playing college sports.
The NCAA will essentially argue that paying athletes in this form is professionalism and the competitive imbalance that already exists —the power five conferences — would grow wider if the richest schools and conferences could offer greater opportunity to cash in on an image.
Also, the NCAA is moving toward greater freedoms for its athletes, including additional scholarship income, better medical benefits and more access to agents.
The testimony will shine a light on college sports’ finances. Plaintiffs will detail the huge TV deals. The NCAA will counter with the true cost and value of an athletic scholarship. The public will be stunned by the figures on both sides.
The NCAA and its members need to be prepared to lose.
In major cases in the last 30 years, when the notion of the NCAA restricting income has been argued, the plaintiffs have prevailed. In 1984, the Supreme Court ruled the NCAA could no longer control the television rights of schools and conferences, which opened the door for realignment and today’s huge media deals.
In 1999, the NCAA paid a $54 million settlement to “restricted-earnings” assistant basketball coaches whose compensation was capped by NCAA rules. Today, salaries not only aren’t capped, but they gush, thanks to the riches that have poured into college sports.
An O’Bannon victory isn’t likely to produce a population of wealthy college athletes. Who are the celebs from the 2013-14 school year that would have commanded big endorsement or appearance fees? Manziel, Jadaveon Clowney, Andrew Wiggins, Jabari Parker, Julius Randle, perhaps a few others.
Michael McCann, a Massachusetts attorney writing for Sports Illustrated, suggested most athletes “would likely gain relatively modest compensation through group licensing contracts negotiated on their behalf by a trade association.”
I spoke to a major-college athletic director last week who couldn’t project how the trial will fall but “will figure out how to make it work,” if O’Bannon prevails.
“We can’t stick our heads in the sand, pretending all is fine the way we’ve operated,” the athletic director said. “One way or another, change is coming, and we need to be ready.”