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This week is a very important week for Ed O’Bannon’s case against the NCAA

Jun 20, 2013, 8:25 AM EST

NCAA Men's Final Four - Practice Getty Images

Ever since Ed O’Bannon first filed a lawsuit against the NCAA over the use of his likeness in a video game back in 2009, there has been scuttlebutt that the outcome of said lawsuit could end up playing a major role in the way that college athletics operates at the highest level in the near future.

(For those that haven’t been paying attention, you can get some terrific background insight into the lawsuit from Brad Wolverton’s story in The Chronicle here. You might also want to give J. Brady McCollough’s feature on Sonny Vaccaro, the former shoe peddler turned amateur athlete advocate, who, along with O’Bannon, is the inspiration behind the case.)

This week may be the most important week for the case, as U.S. District Judge Claudia Wilken will hear arguments regarding whether or not the case can be certified as a class action lawsuit on Thursday in Oakland. If the case were to be certified to include current athletes, it would mean that “the NCAA would be liable for claims brought not just by the plaintiffs but also by all former athletes,” Bloomberg’s Jonathan Mahler wrote back in May. “Anyone who has ever played a Division I college sport would instantly be suing for damages for every instance in which his or her image was used in a video game, highlight reel, broadcast or rebroadcast.”

That could spell out disaster for the NCAA, who has a 14-year contract worth more than $10 billion with CBS and Turner to broadcast the NCAA tournament and whose member conferences annually cut $20 million checks to each member school for their TV contracts.

With that much money being tossed around, it’s a logical leap that the O’Bannon case could end up changing the NCAA’s entire business model, right?

Well, maybe we need to pump the brakes here just a bit. From a blog that Wolverton published accompanying the story linked above:

Gary R. Roberts, dean of Indiana University’s Robert H. McKinney School of Law, went further, describing some of the predictions as a “preposterous stretch of the intellectual-property laws.”

“I don’t see why, if the NCAA is infringing on former players’ publicity rights in the production of video games, that would lead to a remedy of current players receiving TV rights,” he said. “There are people who want that to happen so much that they’ve convinced themselves it’s right. But I don’t think there’s any court that will jump that legal chasm.”

Other legal scholars, whose voices didn’t make it in my article, agreed.

“Maybe in five years O’Bannon will cause the entire NCAA infrastructure to come unglued, but I doubt it,” said Gene Marsh, a retired professor of law at the University of Alabama at Tuscaloosa who represents colleges in NCAA disputes. “The thing about sports litigation—and particularly anything related to the NCAA—is that you get this wave of wishful thinking and emotion, and then someone comes along and actually applies the law, and that takes the air out of the balloon.”

In simpler terms, we’ve all gotten so excited about the fact that someone is actually stepping up to the plate and challenging the NCAA that we’ve forgotten all the legalistic red-tape the case needs to wind its way through.

And just because there’s a movement of people that are emotional and passionate about changing the basis of the NCAA doesn’t mean a federal judge who has been trained to filter out emotion and passion and focus on the letter of the law is going to agree.

You can find Rob on twitter @RobDauster.

  1. dallasstars9 - Jun 20, 2013 at 3:20 PM

    I guess getting a free education and the opportunity to play college sports for a University with the chance of moving on to professional sports, where you do get paid, isn’t enough for some.

  2. critter69 - Jun 21, 2013 at 6:25 AM

    And after the DISTRICT Federal court determines if this case can be, or cannot be, a class action suit, and after the court hears the evidence, and after the court issues a decision, and after the losing side decides to appeal or not, then we go to a Circuit Court of Appeals if the decision is appealed.

    Then after the Circuit Court of Appeals decides to accept, or not, the appeal, we get to the hearing of the appeal (if the case is appealed). Then we get to the court issuing a decision, and after the losing side dicides to appeal or not, then we go to the Supreme Court of the United States (SCOTUS) if the decision is appealed. What may surprise many is that SCOTUS rejects almost all appeals, accepting less than 5% of the cases that come its way. IF SCOTUS accepts the case, it might hear the case within a year of the time it accepts the case, or it may schedule arguments for the next court year. And SCOTUS might decide that the athlete only has a beef with the video manufacturer, not the University or Athletic Conference.

    Of course, if the District Court decides to not make it a class action suit, then that decision can be appealed all the way, if accepted, to SCOTUS. At that point, the case can then resume in the District Court.

    In other words, the court case at the District Court level is, in effect, just the first step in what could be a multi-year effort. And if the case is not granted class-action status, additional cases will have to be filed again and again by each individual. And with those additional cases, most District Courts will put a hold on the case until SCOTUS rules on any pertinent case that might be heard at that level.

    In other words, if anyone is expecting this case to be settled in the near future (as in the next year or two), I would suggest that you don’t bet a lot on that expectation.

  3. w2lucky - Jun 21, 2013 at 12:44 PM

    When it’s millions on the table, and the NCAA gives nothing to the athletes, greed is bound to take over. I know, some of you will say the free education and an opportunity to showcase for the pro ranks should be enough, but I’m a realist. I assure you that in many cases the education is secondary.

    I lived in the jock dorm at a major university and saw many of these great athletes from poor backgrounds with no money to even eat a burger, yet the school makes millions off them. As long as the NCAA pretends this is not an issue it will blow up in their faces. Perhaps an allowance for the players that comes from the pot is in order and worth taking a look at. Is this a step closer to doom? Absolutely. But this problem was created by Pro sports (owners, agents, and athletes) that have allowed this monster to become what it is.

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