Keep an eye on this.
If you’re a sports fan with a legal bent, add this to your Memorial Day weekend reading list: The March 10 complaint in Case No. C 09-01967 CW, United States District Court, Northern District of California, Oakland Division.
It’s 157 pages of straight-forward material that references some of college basketball’s greatest moments and personalities over the last 50 years: Texas Western’s 1966 upset of Kentucky, the Magic Johnson-Larry Bird championship game of 1979, Michigan’s “Fab Five” teams of the early ’90s, and UCLA’s stirring title run in 1995, led by forward Ed O’Bannon.
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The key issue of the lawsuit is this: Should the NCAA compensate former players for the right to sell products — like video games, highlight videos and jerseys — that use their likeness, image, names and other intellectual property? The NCAA, naturally, believes it should not, arguing that it does not actually profit from players’ likenesses, and furthermore that all college athletes sign a form that forfeits their right to receive payment from the NCAA or its business partners.
On the other side, of course, are athletes such as O’Bannon, Keller and a growing list of others, including former Michigan and NBA center Eric Riley and Alex Gilbert, who played alongside Bird at Indiana State, who have never seen a penny as the NCAA has morphed into a behemoth that generates huge sums — reportedly $4 billion annually — from licensing and media deals. O’Bannon was the lead plaintiff in a case that focused on the NCAA’s use of former players’ images and likenesses to sell DVDs, “classic” photos and jerseys, while Keller’s suit was focused primarily on the video game industry, and in particular how Electronic Arts, the video game titan, utilizes players’ likenesses in their games.
The players’ cause got a huge boost in February when a federal judge in Northern California denied the NCAA’s request to dismiss the case. Soon after, the O’Bannon and Keller cases were combined, and the next big issue will be whether the court will certify the case as a class-action lawsuit. It’s a massive decision: Because of the potential for a gargantuan payout in a class-action suit, the NCAA is not expected to fight if the case is certified, and would instead pursue a settlement, which would still likely be a considerable amount. On the flip-side, if the suit is not certified, it’s unlikely that each of the athletes would pursue their cases individually.
I noted this lawsuit last year, after it was first filed. Needless to say, a whole lot of money is at stake. I’m not a lawyer, so I can’t evaluate the legal claims, but the players’ case looks very strong to me. The NCAA requires all players to sign an omnibus “I relinquish all rights to my image forever” document every year, which in this day and age just doesn’t pass the sniff test. Again, the legalities may mean that the players will lose this fight, but from the standpoint of justice, I say they have a slam dunk. Read it and see what you think.