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.

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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.