SAN FRANCISCO — Former UCLA star Ed O’Bannon is watching the NCAA men’s basketball tournament with mixed emotions.
“Everybody’s getting paid except for the players,” he said recently. “It’s not fair, and it needs to change.”
Four years ago, he filed a lawsuit against the NCAA and video game maker EA Sports seeking compensation after recognizing an avatar in the company’s March Madness game that he says was created in his image. The lawsuit has grown into one of the biggest legal threats the NCAA has ever faced over the issue of paying student athletes.
Athletes who play collegiate sports at a high level do so without compensation and sign documents giving the NCAA and its member institutions the rights to
use their images and likenesses to “promote NCAA championships or other NCAA events, activities or programs.”
O’Bannon and other former student-athletes, including basketball legends Oscar Robertson and Bill Russell, who filed the lawsuit want to force the NCAA to share in the skyrocketing revenues earned from television deals, video games, marketing schemes and other money-generating ventures using their images and likenesses.
The lawsuit proposes that former players receive direct payments while current athletes could tap a trust fund once their playing days are done.
The lawsuit alleges the NCAA and its member schools have unfairly and illegally fixed the value of every player’s commercial rights at zero.
The NCAA argues that whatever revenues it earns are used for the benefit of its member schools and students, including those who have filed the lawsuit. It argues that paying players would sound the death knell of amateur athletics.
In its latest court filing in March, the NCAA submitted more than 2,000 pages of legal arguments and statements from university administrators urging a judge to block the players’ attempts to turn the lawsuit into a class action. If that happens and the lawsuit prevails, the NCAA’s financial exposure could reach into the billions of dollars to compensate former players since 2005 while having to share revenues going forward with current and future athletes.
U.S. District Judge Claudia Wilken has scheduled a hearing in June to consider the class action request.
The former players have also included the NCAA’s marketing arm, called the Collegiate Licensing Company, and video game maker EA Sports in the lawsuit. The Redwood City-based EA pays the NCAA an undisclosed amount for the rights to make and sell a college football video game. EA in the past also sold a college basketball game, which it discontinued a few years ago.
The lawsuit alleges the avatars in the games are based on real players. Though the players’ names aren’t used, many of their unique attributes and skills match up with individual avatars in the game. They argue that the similarities are so striking that the avatars have to be based on them.
The NCAA and EA deny the avatars are anything but generic figures.
The debate over compensating college players is almost as old as the NCAA, founded in 1906. Amateurs have long-been expected to compete for free and the love of sport – or at least the cost of a scholarship. But with NCAA athletic revenues soaring to an estimated $4 billion a year, players are starting to clamor for compensation.
The NCAA’s amateur athletics rules have been challenged in court a few times over the years with little success. But legal experts say players are making steady progress with the pending lawsuit, racking up preliminary victories.
“This has the potential to fundamentally alter the NCAA’s business model in a dramatic way,” said University of New Hampshire law professor Michael McCann, a sports law expert. “This is the most significant legal threat the NCAA is facing.”
The judge has schedule trial for June 2014.