O’Bannon on O’Bannon: “It was pretty intense.”

It’s a fool’s errand to read too much into what goes on at a hearing such as what occurred in Oakland yesterday when the trial judge heard arguments about certifying O’Bannon as a class action lawsuit.  Still, there were a couple of developments that indicate the case is morphing from its original position about control of post-collegiate players’ likenesses as to clothing into a more pure compensation posture related to media.  For one thing, take what the plaintiffs’ lawyers announced at the hearing:

In the course of the hearing, and afterward, Hausfeld also said the plaintiffs no longer are concerning themselves with the use of athletes’ names, images and likenesses in regard to jersey and other apparel sales, as they had stated in the current version of their complaint. That puts the case on the complaint’s other, considerable, areas: TV broadcast and re-broadcast, video games and other digital and electronic media.

And then there’s this:

U.S. District Judge Claudia Wilken said Thursday she likely will ask the plaintiffs in an anti-trust lawsuit pertaining to the use of college athletes’ names and likenesses to amend their complaint against the NCAA and two co-defendants.

Such a decision would allow the plaintiffs to formally clarify their case, combating one of the defendants’ main arguments in the case. It also would allow the plaintiffs to add at least one current college athlete to the list of named plaintiffs – a move that the plaintiffs’ lead lawyer, Michael Hausfeld, said would be made.

It’s a development that seems logical based on the admissions that have come out about the NCAA’s struggles with player likeness issues.

It’s also a development that led to this ludicrous exchange.

The NCAA also feels the issue is moot because, they argue, most states’ publicity rights allow broadcasters to televise live events without attaining every single participant’s permission. “If you go in front of a camera and know you’re going in front of a camera … you’re fair game for TV,” Curtner said. “Cheerleaders, mascots, lots of people appear in these broadcasts, and there’s a uniform practice in this country that these rights are not individually sold.”

Curtner in turn drew a skeptical chuckle from the judge when Wilken subsequently asked, “So what is it the colleges are selling when they sell rights to show their games?”

“They are selling exclusive access to their stadium or arena,” Curtner responded. “They’re telling CBS, you can come in and broadcast this, and no one else can. … That’s all they’re selling. They’re not selling individual [players’] rights.”

Georgia’s got a bye September 14th. Think Verne and Gary will come to Athens then?

There’s also a whiff of the defendants turning against each other.

Robert Van Nest, representing EA, essentially argued that the company should no longer be included in the suit because the plaintiffs’ case has evolved into a crusade against NCAA amateurism policy.

“Neither EA or CLC have anything to do with [NCAA] rules,” Van Nest said. “They don’t create or enforce them.”

Nah, they just profit by them.


UPDATE:  By the way, make sure you read Andy Staples’ “What’s at stake” piece on O’Bannon.  And note this interesting little tidbit –

When NCAA Football 14 is released next month, it will feature the likenesses of more than 1,400 former players — all of whom have been paid for the rights to their likeness. This is not a coincidence.


Filed under The NCAA

16 responses to “O’Bannon on O’Bannon: “It was pretty intense.”

  1. The easy way to deal with this if you’re the NCAA or its member institutions is to insert language into the LOI that says you consent to your likeness being used in all media both during and after your time at the school. I also think the scholar-athlete should be able to trade on his/her own likeness and personal property (jerseys, rings, etc.) and those payments should be fully disclosed. If current players could get a guarantee of a scholarship with 5 years of eligibility in exchange for all of that, I don’t see why this wouldn’t be fair. I understand the underlying complaint in the suit, but I just don’t get why a $160K scholarship ($40K out of state X 4) plus the other benefits (player development, exposure, etc.) is a “plantation.” These 18-22 year olds get close to $250K of total value from their time at a university tax-free.


    • AlphaDawg

      If a recruit refuses to sign an LOI, what then? I heard Kwame never signed one because he was advised not to by family members.


      • I guess no LOI, no scholarship. If you want to step on the field or court, you sign the media release. That’s why I say the university can trade on the likeness and so can the athlete. It’s mutually agreeable. The issue today is that the athlete can’t earn money off their likeness or property. If you get rid of that, shouldn’t the problem be solved?

        The NFL & NBA aren’t going spend money on developmental leagues like MLB did, so the college path is really the only method.


    • W Cobb Dawg

      Hmmm…so in exchange for an education and school’s okay to participate in extracurricular activities, a football player (or any student I guess) who obtains a scholly or grant signs their rights away. And aren’t most of these schollys/benefits publicly funded? Welcome to amateur sports. Sounds good if you’re espn or ncaa bringing in millions or billions. Primarily publicly funded institutions – check. Free labor – check. No liability if anyone injured – check.


      • The athletic scholarship is not publicly funded. That’s the use of contributions to the Hartman Fund. I can’t stand the NCAA, but the athlete receives benefit from the arrangement. If Jerry Jones, Arthur Blank, etc. could make money off a developmental league, they would do it in a heartbeat. Would people go see or watch Todd Gurley play for the Raleigh Raiders or Aaron Murray for the Orlando Mice right out of high school, I would guess no way.


    • Monday Night Frotteur

      If schools agreed with each other to do this it’s an antitrust violation. Look, this is what people don’t seem to get: competitors are not supposed to agree with each other to reduce the cost of labor. Period, full stop.

      While you think $40,000/year seems “fair” that’s a Marxist way to think about value. What’s fair is a market wage set by independent competitors bidding against each other for each player’s services. That’s what’s fair in a capitalist, free-market society.


      • Sorry but that’s BS. Love or hate the NCAA, which I can’t stand, but they have the rules that their member institutions agreed to. High school athletes don’t have to go to college, but the NFL and NBA make them wait to be eligible for their drafts. Until the big-time programs break away from the NCAA, nothing changes unless the member institutions change it.

        If you have a problem with the current system, take it up with Roger Goodell and the NFL suits. I believe that players should be able to trade on their likeness while in college but whatever is done for football players with compensation has to be done for the women’s equestrian team due to Title IX. That would be the end of the college sports model.


        • 1996 Dog

          That doesn’t make sense, the schools can’t agree to rules that violate the Sherman Act. A court can make them change and the O’Bannon case might be getting the ball rolling. Ending this college sports model is what a lot of us want. We want a better, fairer model. .

          What the NFL and NBA do or don’t do has no bearing. That’s a doggone copout. The schools need to do what’s right on their own.


          • My understanding is that the suit has nothing to do with the antitrust provisions of Sherman, but I haven’t done the research. If someone wants to sue to break up the NCAA monopoly, more power to them. What do you want to replace the current system? Minor league football and basketball in the college system isn’t going to happen. Paid college athletes will end the non-revenue producing sports and will likely lead to lawsuits under Title IX. I wouldn’t be surprised if that led to the break-up of the NCAA into the 60 or so athletic programs which are big businesses and the rest (preferable) or to the end of a lot of college sports programs that find it difficult to keep their heads above water in today’s environment. Either way, it leads to fewer opportunities for high school athletes.

            The laws of economics eventually win out regardless of the outcome of the suit. You raise the cost to provide a service (a college athletic team, in this case), and you eventually get less of the service either in quality, quantity, or both.


            • 1996Dog

              O’Bannon’s lawsuit is an anti-trust suit. Read the complaint or one of any number of articles written about the case.

              I can’t tell the future but I’m guessing that if O’bannon wins, not much changes except football and men’s basketball players get more money on top of their scholarships, some expensive sports with no following are shut down (swimming, lacrosse) and coaches and administrators make way way less. That’s an outstanding result if you ask me.


  2. Is that not right though, from EA’s standpoint? Their complaint is about getting a cut of what the NCAA is making off EA, not with EA’s profit margins. So why should EA be involved in a employer vs. employee fight?


  3. 69Dawg

    Why does the NCAA keep hanging on to the unrealistic and untenable position that they can prevent the student-athlete from profiting from his own likeness. Let’s just take the AJ Greene example. He sells clearly what is his property and gets busted. If the NCAA is afraid of boosters or agents over paying on purpose require the student-athlete to report the sell but don’t forbid it. Greed is a bad thing and the NCAA’s and the President’s greed will end up killing the Golden Goose. When you make a student-athlete pay the school $20.00 for using water to wash their car the sky has fallen.


  4. ScoutDawg

    Much like Nazi’s at Nuremburg, the NCAA won’t go down without a fight. Where oh where is my cyanide pill when I need it?