Six current BCS-conference football players were named as additional plaintiffs in the O'Bannon v. the NCAA likeness lawsuit. Arizona Wildcats Jake Fisher and Jake Smith, Minnesota Golden Gophers Moses Alipate and Victor Keise, Vanderbilt linebacker Chase Garnham, and Clemson cornerback Darius Robinson were included in an amended complaint filed by lawyers for former players late Thursday.
There are some striking similarities between the six players chosen:
All six are seniors at major programs. All six players also have faced adversity since entering college. Four of the six players have suffered season-ending injuries during their college careers. A fifth, Minnesota's Keise, missed offseason practices with an injury. His teammate,Alipate, has not gone through a significant injury but did move from quarterback to tight end and has never seen action. Arizona kicker Smith transferred twice; after initially enrolling at Syracuse just days before the 2009 season began, transferred to Youngstown State after one year, then walked on with the Wildcats.
While some of the named players are team leaders, none are true household names that may garner special attention from the media.
Darius Robinson. Jared Wickerham, Getty.
The use of everyday players could also counteract one of the NCAA's strongest arguments against class certification. Should O'Bannon successfully argue that players deserve a share of proceeds for the use of their likenesses, the NCAA has claimed that star players would be entitled to damages greater than role players. Such a differentiation may lead the U.S. District Court to deny class certification, effectively derailing O'Bannon's claim and potentially generating a cottage industry of litigation by individual players.
Three of the six players listed match up nearly identically with their counterparts in EA Sports' NCAA Football 14: Smith and Garnham are identical in height, weight, and uniform number, while Fischer's avatar is a few pounds lighter than the real thing. Clemson cornerback Darius Robinson, who once wore No. 21 but is now listed at No. 8, is listed in both NCAA Football 13 and 14 in his former uniform number.
"That's me all the way," Robinson told Sports Illustrated's Andy Staples. "It's as close as it gets. Size, ratings."
Smith's virtual likeness in NCAA Football 14, which matches Smith's personal traits. EA Sports TeamBuilder.
The two Minnesota players, however, did not appear in either NCAA Football 13 or 14. While real-life college football programs are capped at 85 scholarships, NCAA Football teams are limited to 70. Given that Kelse and Alipate have a combined 14 appearances and one catch in their eight previous seasons, EA game developers may have decided that they were expendable.
Regardless, choosing two players who are not included in the video games -- and who could well undermine O'Bannon's position on the use of player likenesses in those games -- could raise some eyebrows.
In a hearing on class certification last month, Federal District Court Judge Claudia Wilken requested that the O'Bannon plaintiffs add current players to the suit. Her request was made because, in the lawsuit as it currently stands, current players are requesting different remedies than former players. As a result, former players -- which, until Thursday night, made up all of the named plaintiffs in the suit -- could not request the remedies they sought on behalf of current players.
The addition led to another public spat between O'Bannon's attorneys and those from the NCAA over whether the names of the added plaintiffs should be disclosed. O'Bannon's lawyers said they feared reprisal by the NCAA and individual programs against the named players, a fear which the NCAA said was unfounded. Arizona coach Rich Rodriguez, who coaches two of the six named players, supports Fisher and Smith, according to AL.com's Jon Solomon.
All of the recent legal maneuvering could be rendered moot by Judge Wilken's pending decision on class certification, which should come in late summer.