Hello Internet friends. It seems like the NCAA just can't stay out of trouble these days. Last week we found out that NCAA investigators were probably guilty of obstruction of justice. Then this week a judge ruled that a class action lawsuit against the NCAA led by Ed O'Bannon can proceed. The O'Bannon lawsuit is pretty convoluted, but it could help further erode the NCAA's power. The problem is that could take a while. Here to help explain it is my friend, the made-up non-lawyer questioner, for yet another legal Q&A.
Q: So what is Ed O'Bannon suing for?
A: When you play an NCAA sport, you have to sign a waiver that relinquishes your right to make money off your likeness as an NCAA athlete. The NCAA let EA Sports use those players' likenesses in video games, like the NCAA Football and NCAA March Madness series. The NCAA probably could have gotten away with this if they only used current players in these games, as college athletes don't usually have the inclination to sue people who could suspend them and don't have the money to pay for litigators.
But EA and the NCAA got greedy. They used classic teams, like the 1996 UCLA Bruins basketball team. This caught the attention of former UCLA power forward Ed O'Bannon, who's now a car salesman outside Las Vegas. He doesn't work in sports any more, so what does he have to lose by suing the NCAA for using his likeness? He later got Tyrone Prothro, the Alabama receiever whose leg injuries in college prevented him from having a pro career, Bill Russell, Oscar Robertson and others to join his suit.
Q: But they signed those waivers giving up their right to use their own likenesses.
A: This is where the Sherman Antitrust Act comes in. Today you can't get a bill preventing rich guys from doing bad stuff passed, because a majority of the House of Representatives thinks Atlas Shrugged is nonfiction. But a century ago you could!
The Sherman Antitrust Act specifically bans artificially fixing prices, aiming to mean people and businesses are paid what they deserve. O'Bannon is alleging that if the NCAA didn't force him to sign this contract, then he could have gotten money from someone else (say, an EA competitor) to use his likeness. Thus, it essentially fixed the price of using his image at zero. Even if you consider players' scholarships adequate payment for their services, this still artificially depresses how much they're paid. If a judge agrees, the waiver would be considered an illegal restraint of trade under the act.
For a fuller explanation of the antitrust aspects of the lawsuit, see this helpful primer by the Bylaw Blog's John Infante and two of his colleagues.
Q: So is O'Bannon just suing on behalf of himself?
A: No, he's suing on behalf of everyone whose likenesses are being improperly used by the NCAA. When there's a small, tangible group of people who are harmed in a case like this then you can simply add them all as co-plaintiffs. But if you've ever played NCAA Football or NCAA March Madness, you know that there are thousands of players whose likenesses the NCAA uses. Since it would be practically impossible to get every athlete in those video games to join the lawsuits, O'Bannon is leading a class action lawsuit.
Q: I've seen ads for asbestos class action lawsuits during the Price is Right, but can you explain what one is to me?
A: A class action lawsuit is an action in which not all of the plaintiffs are named to the suit, but if the suit is successful, then the defendant has to pay damages not just to the people who lead the suit (i.e. O'Bannon) but anyone who has been harmed by its actions. Class actions are feasible in two scenarios: 1) where the harms to individual plaintiffs are so small that it wouldn't make sense for them to bring individual lawsuits, but the overall harm is large, and 2) where the plaintiffs are so uniformly poor that they can't afford to bring suit. This is a case of number 1), though number 2) certainly applies to current athletes.
Q: So what's the status of this lawsuit?
A: Well the most important moment in this lawsuit came back in 2010, when a judge ruled against an NCAA motion for summary judgment.
Q: What's a motion for summary judgment?
A: In order to prevent pointless lawsuits from making it to trial, we require there to be some question of law based on the undisputed facts in the case. The NCAA said that O'Bannon and his class couldn't make a case based on such facts, but the judge disagreed.
Q: So why is that a big deal?
A: If there's a bona fide dispute between the parties, then they can demand information related to the dispute from each other. This is called "discovery," and in this case it mostly involves the NCAA handing over documents to the O'Bannon plaintiffs. For more than two years they've had to turn over documents relating to their licensing agreements. The NCAA is based on exploiting unpaid players for labor, so they really don't like turning over documents that show how profitable that exploitation is.
Q: I guess that's why the NCAA sued to get this lawsuit thrown out recently.
A: You bet your ass. They want this thing to go away ASAP. So they sued to have it thrown out on the basis that the players amended their lawsuit to ask for damages arising from the NCAA using their likenesses on television as well as in video games. The NCAA argued that this prejudiced it, because it'd have to change its legal strategy, but the judge disagreed.
Q: So when does this thing go to trial?
A: The trial is scheduled for July 9, 2014.
Q: What? That's really far away!
A: Yeah, it is. Complex civil litigation takes years. The discovery process involves sifting through millions of pages of documents. Parties make all sorts of appeals and requests that the judge needs to hear. As you can see, this case involves a lot of complicated issues, and complicated issues require billable hours from lawyers.
When it comes to complex civil litigation, judges are more concerned with getting decisions right than rendering such decisions expeditiously. Which means such litigation is protracted and expensive. Which is why a class action lawsuit makes so much sense; imagine if every other athlete that was used by the NCAA had to go through this process.
Q: So what happens next?
A: The judge still needs to certify the class of players that are listed as plaintiffs. She will decide on that after a May 9 hearing. Even if the class is not certified, a trial may still occur in 2014.
Q: Ugh, I wish it wouldn't take this long to bring the NCAA down.
A: Rome wasn't built in a day. Well it didn't collapse in a day either. Victories won through litigation take a long time. Look at Brown v. Board of Education. That lawsuit was filed in 1951. In 1954 the Supreme Court ruled that school desegregation was unconstitutional. But in 1955 the Supreme Court ruled that school boards could take their time to integrate. Desegregation lawsuits for individual school districts lasted for decades.
Civil litigation is the worst venue in which to seek justice, because litigation forces justice to wait. The best way to achieve real justice is to put righteous people in charge, because they can act quickly. Unfortunately, we're stuck with Mark Emmert. Which means we're also stuck with civil litigation.
Ultimately an economic system that pays athletes in the equivalent of Camel Cash while schools get hundreds of millions of dollars will not stand up to judicial scrutiny. But it'll take time. Martin Luther King said that the moral arc of the universe is long, but it bends toward justice. That means we're not done with the NCAA just yet.
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