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Once again, Ed O’Bannon is creating a stir amongst former and current collegiate athletes, universities, and the governing athletic institutions with the multi-billion dollar class action lawsuit against the NCAA. Lawyers anticipate that this suit, which was originally filed in 2009, will have a trial date scheduled for 2013. Currently in the discovery stage, O’Bannon asked U.S. Magistrate Judge Nathaniel Cousins to grant permission to expand the lawsuit to allow current Division I male football and basketball athletes to join as parties to the suit. While on its face this new development appears minimal, the potential impact of the case is even greater than what was originally projected when the suit was filed in 2009.
The main issue is one that has been around for years — whether collegiate players are entitled to receive compensation for the licensing and use of players’ names and images by the NCAA. In the past, the argument supporting player compensation was heavily criticized as contradicting the most fundamental premise of collegiate athletics — amateurism. In order to preserve a player’s status as an amateur, the NCAA prohibits players from receiving any payment other than reimbursement for tuition, room, and board. In the class action suit, O’Bannon suggests an alternative to physically paying collegiate athletes by setting up temporary trusts in the players’ names. The court’s acceptance of such a suggestion would drastically impact the future of collegiate athletics.
While O’Bannon concedes that the actual distribution and practical dimension of the trust system has yet to be established, he focuses on what this would mean theoretically if the courts accept this proposal. He urges that setting up a trust neither violates the NCAA provision nor interferes with a player’s amateur status because the money would accrue in the trusts during a player’s collegiate career and would only be accessible upon graduation. Moreover, the players receive what they are entitled — just compensation for the profits attributed to the licensing and use of player names and images. O’Bannon furthers his argument by claiming that the player waiver, which the NCAA claims permits the licensing and use of player names and numbers, is a contract of adhesion completely eliminating a player’s bargaining rights because the player’s only alternative to not signing the waiver is ineligibility.
This argument seems worthy of a second or maybe even a third look before one considers discarding it. In theory, it may seem unfair for the NCAA to profit from the players and leave the players empty-handed. If the main issue is preservation of amateur status, then could one solution be that the NCAA designate one jersey number as the only number that may be used for jersey sales, thus avoiding the licensing issue since no player would wear that designated jersey number. But the problem is, the issue is not that simple. The issue goes beyond jersey and memorabilia sales, it deals with the scope of the NCAA’s authority to license and use player names and images. This case began as one about the use of player’s name, images and likeness in video games; but now, with the help of O’Bannon, the issue has transcended new territory and is gaining supporters along the way.
However, there are concerns with implementing a trust system for player compensation. O’Bannon suggests a formula for distributing the player-generated NCAA revenue: (i) players receive up to half of the NCAA’s broadcasting revenue and one-third of the NCAA video game revenue, and (ii) the remaining revenue after satisfying part (i) would be dispersed between the NCAA, conferences and universities. But, what is the authority behind this formula? How do you know how much each revenue each university will receive to be divided amongst the players? Will each university receive an equal amount or will it be associated with how much the NCAA uses a certain university’s players in its commercial endeavors? Also, would there be a potential Title IX issue since the NCAA broadcasts female athletic contests? It appears that there are many questions that must be properly addressed and answered before any trust system would be implemented.
The expansion of the class action suit against the NCAA has the potential to dramatically change college athletics by finally finding the loop-hole to allow player compensation while preserving a player’s amateur status. Perhaps, what this issue may be getting at is the need for the NCAA to redefine its role. Although that is not stated or suggested in the suit, it seems that it would be an interesting thought to refer back to as the case progresses.
– Caitlin Buckstaff
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