Limber Up Your Suin' Arm, Ed O'Bannon, Because You've Got A Stick Now

O'Bannon's suing the NCAA for exploiting his likeness by putting him in video games well after his playing career ended, which sounds kind of small potatoes until you draw the camera back and check out the forest.

It's a little pebble of a ruling right now, but here it is:

A district court judge in San Francisco on Monday denied the N.C.A.A.'s motion for dismissal in a class-action lawsuit headed by the former U.C.L.A. basketball star Ed O'Bannon. The ruling leaves the N.C.A.A.'s licensing contracts open to discovery.

Many people think this is a big deal. The hoity-toity law firm that Sonny Vaccaro hooked O'Bannon up with is a specialist in these sorts of things and is rolling the Sam Keller lawsuit against Electronic Arts up into a massive class action. Dan Wetzel provides some perspective:

The case could lead to former student-athletes getting a cut of the multi-billion dollar college sports revenue pool and dramatically impact the way college athletics operates.

Consider a famous play such as Christian Laettner's buzzer-beating 3-pointer that lifted Duke past Kentucky in the 1992 NCAA tournament. The footage has been sold by the NCAA to be used in commercial advertisements for nearly two decades. In most cases, neither Laettner, nor any other player in the footage, has been paid. The O'Bannon lawsuit could cause the NCAA to retroactively compensate everyone in the highlight (the UK players guarding Laettner, the bench players, celebrating Duke teammates, etc.) for a cut of the revenue advertisements using that footage generated. Then there's memorabilia, classic sports television rebroadcasts, in-house ads and so on.

If O'Bannon wins the case a small subset of former college players are going to get paid, a whole host of video game features will migrate to the unofficial underground that already puts out fully-named NCAA football rosters on the day of that game's release, and the NCAA's attempt to keep its athletes wholly amateur will get considerably more ridiculous. It's already weird enough that guys like Blake Griffin and Adrian Peterson can be placed on the cover of a video game without compensation; it will be weirder if they're actually paid.

Even if O'Bannon does not win, the ruling will make a large chunk of the NCAA's private books open to the public, revealing just how much is being made off the likenesses of college athletes -- it's a portion of four billion (with a b!) dollars -- who are acquiring zero dollars in return.

So... is this a good thing? Wetzel brings up the specter of recession and athletic departments in the red and all that, but I say pah: Coaching salaries and facilities continue to drive 90 percent of cost increases and any reallocation of money from buildings and rich dudes to the people who are providing most of the value is welcome. If the NCAA is forced to trickle down some moderate amount of money to its players, the folks who will benefit the most are the ones who aren't ticketed for pro stardom.

I mean, attempt to disagree with this from one of O'Bannon's lawyers:

We think the court and public will be shocked at how crassly commercial the sale of all these items are. It's not a public service. It's purely to make money. In every other walk of life you enter, you have to share the proceeds.

I am not a lawyer, but it seems grossly unfair to pick this one group of pretty exploited people -- the 1985 Washington State Cougars, who were probably compensated fairly for their labor, do not appear in video games or promotional materials -- and declare them out of luck because the NCAA's educational mission is compelling or whatever. The money the NCAA makes goes to men in ties, not underprivileged volleyball players. O'Bannon's lawsuit isn't going to make the athletes worse off, so it's welcome.

Just don't remove the ability to load custom rosters, okay?

*(Ironically, EA's all-but-official decision to discontinue its college basketball title leaves zero titles on the market after 2K Games withdrew last year. Virtual O'Bannons are a thing of the past.)

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