College basketball tipped off on Friday, but the biggest NCAA win of the night was in another kind of court. The legal kind… not the “deck of an aircraft carrier” kind. After months of speculation, Judge Claudia Wilken handed down her ruling in the class certification motion in the Ed O’Bannon suit.
If you haven’t been following the O’Bannon case, the former UCLA star heads up a group of current and former players suing the NCAA for improperly restraining players from negotiating the use of their own likenesses on everything from calendars and jerseys to broadcasting contracts and video games.
Judge Wilken’s ruling changes the landscape of the case and sets the parties on a collision course for trial in June. It also makes the NCAA very, very happy…
Judge Wilken granted partial certification of the class sought by O’Bannon’s lawyers. Current and future players now belong to a class for the purpose of suing the NCAA for antitrust and intellectual property violations brought on by the NCAA’s policy of treating student ath-o-letes as wholly owned revenue streams.
O’Bannon’s lawyers rightfully claimed a measure of victory on Friday because the case will go forward, and with it the chance that a verdict will force the NCAA to set up a mechanism that allows players to negotiate compensation for their athletic endeavors — basically a collegiate version of the NFLPA negotiating TV and video game contracts on behalf of the players and giving each student an equal share of the proceeds. This would result in never having to program in all the player names when EA finally gets around to making another video game, which means we’re all the real winners.
On the other hand, Judge Wilken rejected O’Bannon like he was back on an NBA court when it came to the biggest claim — compensation for former players. Judge Wilken did not certify the class for former players, noting commonality concerns:
Of particular interest to Wilken was O’Bannon’s use of alternative histories to explain harm. Chiefly, Wilken questioned the actual impact of scholarship student-athletes staying in college had they enjoyed financial incentives to do so. O’Bannon’s expert, Roger Noll, presented evidence that had they been compensated, some star college basketball players would have stayed in school rather than leave early to pursue the NBA. Wilken found Noll’s study problematic. In her view, student-athletes staying in college would have meant fewer scholarships for other players. Some student-athletes would have been “displaced”, meaning they would have never received a scholarship to play D-I hoops. Wilken stressed these “displaced student-athletes… would not have suffered injuries as members of the teams for which they actually played because… they would never have been able to play for those teams.” In fact, the displaced student-athletes likely benefited by star underclassmen jumping to the NBA. Therefore, Wilken reasoned, the displaced student-athletes did not belong in O’Bannon’s class.
Wilken also took issue with O’Bannon’s portrayal of harm caused by NCAA-licensed video games. These games contained smaller rosters than actual rosters. Wilken reasoned some real players were therefore not in those video games. Without a persuasive way of determining who made and didn’t make the cut, Wilken rejected the class.
This means the billions in damages the NCAA might have faced from all the former players won’t be an issue. This was the concern that got EA to run screaming from the case.
So who came out better?
On balance, the NCAA fared worse because the ruling opens the doors for players to assert their rights as contributors to the business of college sports, said Rob Carey, a lawyer who represents former Arizona State quarterback Sam Keller and other players in a related, but separate aspect of the case tied to publicity rights.
“This ruling increases the likelihood that wholesale change will occur in college sports,” Carey told ESPN. “It’s like Major League Baseball when free agency came along.”
Sure, the NCAA faces the risk of having to change its ways, but after losing the motion to dismiss a few weeks ago, it couldn’t really have expected total victory — this is the best it could have hoped for.
Look at it this way, being told “you can’t rob banks any more” is a lot better than “you also have to give back the money you stole.” Even if they lose the upcoming trial, the NCAA can just retire to Aruba.