The O’Bannon plaintiffs’ trial strategy – use the NCAA’s own records to show contradictions in how the association has approached the use of athletes’ names and likenesses – is so obvious that it would be an act of blatant malpractice to do otherwise.
And it’s not like they have to work up much of a sweat doing it.
An e-mail chain from January 2008 in which an LSU athletics official asked whether Sports Illustrated could legally offer a DVD commemorating LSU’s football national title to customers who bought a subscription to the magazine and whether players who appeared in the DVD might face eligibility questions.
In the emails, then-NCAA membership services associate director Leeland Zeller writes back to the LSU official that an NCAA rules interpretation “clearly addresses” and prohibits “the use of the DVD as ‘premium’ in conjunction with a subscription. … Regardless, SI does this every year. If the school asks about it, they are advised to send a cease and desist letter, which preserves the eligibility of the student-athletes. SI ignores the letter and we all go on about our business.”
The NCAA mouthpiece had no comment in response to the article. Unfortunately for the NCAA, that approach won’t work in court.
I keep waiting for some school president or conference commissioner to wonder out loud what Mark Emmert’s thinking. But I guess we won’t hear that until the litigation goes badly. Or ever.