NCAA continues to take hits in light of O'Bannon case
Posted August 7, 2013
It was just last week that a Court of Appeals upheld a ruling that Electronic Arts, Inc. has to stop producing their popular NCAA College Football game. The NCAA had already decided to part ways with EA and 2014 is the last version of their game that will include the NCAA logo.
It's a part of the Keller/O'Bannon case. The Keller case, which began in 2009, was specifically about the gaming company profiting from the use of former Arizona State quarterback Samuel Keller's physical likeness without pay. And the court ruled in his favor, saying that EA sports cannot use the physical likeness of collegiate athletes without compensating them for it.
A thread of 2005 emails released earlier this year showed the NCAA realized EA Sports was specifically designing their game after current players and several NCAA members voiced their concerns.
"The biggest concern I have is that such a position really does allow for the maximum commercial exploitation of the (student-athlete), and if that occurs, will it be long before we can defend not giving them a piece of the profits?," wrote NCAA membership services official Steve Mallonee.
But that concern hasn't seemed to stop the NCAA from doing the same thing. I mean, we are talking about a lot of money here, right?
Tuesday, ESPN analyst Jay Bilas went on a Twitter tirade unveiling that although the NCAA does not sell player specific football jerseys, if one were to search a specific player on ShopNCAASports.com, they would be steered to a jersey that looked almost identical to his. Fans could purchase this jersey with the players team and number on it, and the only thing missing would be the players' name.
In essence, the NCAA would be profiting from using the physical likeness of college athletes without compensating them for it – exactly what EA Sports got popped for and what the NCAA tried to walk away from. Not surprisingly, the search engine on the website that allowed people to search for gear was disabled before the day was done.
The Bilas findings and EA ruling are just the latest developments in the overall picture of the Ed O'Bannon's lawsuit. The O'Bannon suit combines Keller's suit among others against the NCAA. Let's break it down.
The plaintiffs are suing the NCAA for profiting off the likenesses of college athletes, including the conferences and the networks that televise the games.
Prior to playing, NCAA athletes have to sign a waiver that relinquishes their right to make money off of their likeness as an NCAA athlete. So why did the courts rule in Keller's favor? He has the Sherman Antitrust Act to thank for that. The act specifically bans artificially fixing prices, which O'Bannon is alleging the NCAA did by fixing his worth at $0.
The major problem now is that current players have jumped on board. Vanderbilt linebacker Chase Garnham, Clemson cornerback Darius Robinson, linebacker Jake Fischer and kicker Jake Smith from Arizona, tight end Moses Alipate and wide receiver Victor Keise of Minnesota are all part of the suit. The additions satisfied Judge Claudia Wilken's request to have a current player join as a plaintiff before she will rule on certifying the suit.
So while the EA side seems to be over, we now shift to television rights and the hundreds of millions of dollars that the NCAA and conferences earn from TV deals.
The trial isn't set until July 9, 2014 but the outcome could change college sports entirely. Worst case, the plaintiffs win and get everything they ask for. The NCAA would go bankrupt and colleges would have to create a new governing body.
Athletes would get paid, coaches would get paid less and non-revenue sports would be cut. Or the NCAA and schools decide to settle, most likely securing a portion of revenue for athletes.
Either way, Bilas didn't make the NCAA look very good Tuesday.