Since being filed in 2009 by former UCLA basketball player Ed O'Bannon, the NCAA v. O'Bannon case has taken many different forms, but as it stands, it will go to trial on June 9 in an attempt to deliver a major blow to the NCAA's concept of amateurism. Click a section to learn more about each of the case's major factors.
What's the case about? ★ Video games and TV ★ Arguments already decided ★ What NCAA needs to prove ★ What O'Bannon needs to prove ★ What happens if O'Bannon wins? ★ What happens if the NCAA wins? ★ Who will testify? ★ Whom to follow and what to read
The O'Bannon case is a class-action antitrust lawsuit seeking an injunction. It claims the NCAA has violated antitrust law by not allowing athletes to receive money from their likeness, particularly in television deals. You'll hear three of those words a lot: antitrust, injunction, and likeness. Here's what they all mean in terms of this case.
Antitrust: The O'Bannon plaintiffs are alleging that the NCAA's members are being anti-competitive by keeping all of their television revenues to themselves and not giving anything to the players, whom they claim are the primary revenue-generators. Since college sports are the only path to a pro career for athletes in many sports, the NCAA has no competition, and thus players have no leverage.
Injunction: An injunction means that a party has to stop doing what it's doing. In this case, the NCAA would have to stop keeping revenue from the athletes if it loses.
Likeness: An athlete's likeness is a reference to the use of his or her image. The O'Bannon suit alleges that it is illegal for the NCAA to use athletes' images for profit -- mostly by broadcasting games -- without sharing that profit.
The O'Bannon suit is basically a lawsuit against the NCAA that challenges its right to sell broadcasts without paying players anything. If the O'Bannon plaintiffs succeed in getting an injunction, then the NCAA will be forced to pay the players some sort of broadcast rights.
However, the case hasn't always taken this form. Initially, the O'Bannon plaintiffs were seeking damages and an injunction, but the damages portion was not certified by Judge Claudia Wilken, meaning the NCAA won't have to pay past players for the use of their likeness. The plaintiffs were going to receive individual damages, but they decided not to, so they could have a bench trial decided by Wilken instead of a jury trial.
In 2010, the O'Bannon suit was combined with a lawsuit filed by former Arizona State and Nebraska quarterback Sam Keller, who sued Electronic Arts, the Collegiate Licensing Company, and the NCAA. However, EA and the CLC settled with the plaintiffs last September for $40 million, effectively taking them out of the case. EA also announced that it would stop making college sports video games.
The NCAA refused to settle, and the Keller suit was still combined with the O'Bannon suit. The NCAA wanted to delay the O'Bannon trial, so it requested that the O'Bannon and Keller suits stay together, citing the Seventh Amendment. But Judge Wilken officially split them in late May, meaning the O'Bannon trial will go on as scheduled on June 9, while the Keller trial will be in March 2015.
Video games will still play a part in the case. Wilken denied an NCAA motion to not allow documents from that case to be used during the O'Bannon trial. That's bad news for the NCAA, since evidence has shown that the organization knew players in the video games were based on current players, despite claiming otherwise.
EA Sports modeled players in its games on real-life athletes, with the NCAA's knowledge and without compensation.
Judge Wilken has already ruled on a few points that cannot be used at trial. Among the three biggest, two were big losses for the NCAA.
The NCAA wanted to argue that it has a First Amendment right to broadcast games however it wants, but Wilken won't allow that argument. She said the athletes have not validly transferred their broadcast rights to the NCAA. In turn, the organization tried to argue that broadcast companies pay to show stadiums, not players, but that was dismissed.
Wilken also ruled that the NCAA cannot argue at trial that it can't pay players because it needs the money to finance non-revenue sports. She said the NCAA has not explained why it couldn't just force stricter revenue-sharing rules, as schools typically spend enormous sums on football and basketball facilities and coach salaries.
Other than the damages claim, the O'Bannon plaintiffs lost their pre-trial argument that broadcasts of games are commercial speech. Wilken's explanation was that the games themselves aren't commercial. Rather, commercial breaks coincide with the play on the field.
Wilken's dismissal of the non-revenue sports argument shows that the NCAA can't argue that it needs to continue to appropriate money the way it currently does. It's clear the NCAA has the money to pay players if it wanted to, even though it says that would hurt the universities' purpose of educating students. Now it meets its ultimate test: show why paying players hurts its mission.
The NCAA has lived off of rhetoric for decades, because it could. At the beginning of the case, the organization did the same thing, touting maintenance of amateurism as a reason to not change the system. But Wilken has dismissed that notion, saying amateurism won't be a "useful word" during the trial, because an organization can't make up its own rule and claim to be bound by that rule.
Wilken summed it up best in a pre-trial hearing when she placed the burden on the NCAA to explain how its policy against paying players "actually contributes to the integration of education and athletics."
That's a tough task, but that's what it will take for the NCAA to get out of this lawsuit without paying a cent.
O'Bannon plaintiffs will look to prove why the amateurism policy is unfair and point out how much money the NCAA makes as a result of the players. Expect mentions of the following:
Large conference and tournament TV contract figures will undoubtedly come up, as will every budgetary detail that proves the NCAA makes enough money that it needs to be paying its primary revenue generators.
To prove the anticompetitive argument, the O'Bannon attorneys will likely argue that there are no other options for athletes coming out of high school to play sports and profit off their likenesses and that the NCAA has fixed the price for the industry at the value of a scholarship, allowing the organization and the schools to get rich.
The plaintiffs will also drive home their argument that athletes have not validly transferred their broadcast rights to the schools because of the way the market is set up, and that the NCAA and the schools get an unfair proportion of the revenue.
The O'Bannon plaintiffs have to prove that athletes are entitled to broadcast revenue and that the NCAA's gaming of the market has led to them being denied what they're actually worth. To do that, expect them to show a lot of numbers about the business of college sports and how sports are no longer co-curricular, like the NCAA still claims.
The simple answer is that the players will receive a cut of the television revenue, but the process is much more complicated. The NCAA, conferences, and schools all have lucrative rights deals, and the players would be given a portion of money from those pools.
It's impossible to say the sum, but the NCAA alone made over $700 million off of just television revenue in 2012-13, so it would certainly be substantial. The O'Bannon plaintiffs are asking for up to half of that revenue, but it won't necessarily get all of that appropriated to the players. The NCAA could potentially settle for a much more reasonable number and smaller changes to its rules, but it's indicated it isn't going to do that.
The plaintiffs are asking for group licensing for players. Rather than each player getting paid on his or her market worth, the players would split revenues evenly, like the media rights deals in the professional leagues. They would likely do so through some sort of union.
As far as the effects on college sports, there are wildly different perspectives. Some have said college sports would disappear, though that certainly won't happen, because successful industries don't just disappear. More likely, there would be changes to how non-revenue sports operate and a more open market for players.
As you've probably figured out by now, it's not very likely the NCAA gets out of this scot-free. It has a very difficult case to prove that legally, players don't deserve any of the money that they generate. Its best hope is to give up as little as possible.
Still, even if the the NCAA does win and doesn't have to give up any of its television revenue, it has other lawsuits to worry about.
Perhaps the biggest is the Jeffrey Kessler lawsuit, which alleges that the NCAA and the five major conferences have engaged in price-fixing to cap athletes' compensation at the price of a scholarship. Kessler aims to create a free-market system, but it could also end with the creation of a collective bargaining agreement between the athletes and the NCAA.
There are others, too. For instance, former Florida football star Sharrif Floyd is among the plaintiffs who are looking to force the NCAA to allow full cost of attendance scholarships for football, men's basketball, and women's basketball players in all of the FBS conferences. Oh, and there's that pesky Keller video games trial coming up next March.
Minnesota Vikings defensive tackle Sharrif Floyd is one of several athletes waging legal battles against the NCAA. At Florida, Floyd was suspended by the NCAA in 2011 for receiving benefits from a man who went on to adopt him. Hannah Foslien, Getty
Both the NCAA and the O'Bannon plaintiffs have submitted their witness lists, and CBS Sports' Jon Solomon has a nice rundown. Here's a look at a few who could testify.
NCAA president Mark Emmert
Numerous conference commissioners, college presidents, and athletic directors
The NCAA's former director of corporate relationships
Numerous economists and professors
A current athlete on the NCAA's Student Athlete Advisory Committee
Author and historian Taylor Branch, who wrote "The Shame of College sports" for The Atlantic. The NCAA called his potential testimony "a veritable Russian Matryoshka nesting doll of hearsay," and his participation is doubtful.
The testimony is predictable. The NCAA will parade a bunch of commissioners, presidents, and athletic directors who will say what they believe the goal of the NCAA is, even though the Northwestern unionization case taught us that is irrelevant in legal proceedings. The former NCAA director of corporate relationships will likely testify that NCAA revenue comes from the schools' platforms, not the players, which could be substantive if Wilken agrees.
The focus of the O'Bannon plaintiffs, meanwhile, will be to bring in economists to discuss how much money the NCAA makes and how the money is appropriated, along with getting testimony from former players on their college experiences.
If you have Twitter, here are the people you should be following for the potential 15-day trial. If you don't have Twitter, get Twitter.
- Jon Solomon, CBS Sports (@JonSolomonCBS)
- Steve Berkowitz, USA Today (@ByBerkowitz)
- Rachel Bachman, The Wall Street Journal (@Bachscore)
- John Infante, The Bylaw Blog (@john_infante)
- Andy Staples, Sports Illustrated (@Andy_Staples)
- Patrick Vint, SB Nation (@HS_BHGP)
- Patrick Hruby, Sports on Earth (@patrick_hruby)
- Andy Schwarz, OSKR economist (@andyhre)
- Ben Strauss, The New York Times (@bstrauss1)
If you'd like, you can also follow me on Twitter at @k_trahan.
You can also read up on our past coverage of the O'Bannon trial and the NCAA.
- The four-year StoryStream: all our O'Bannon coverage in one place
- What happens if O'Bannon beats the NCAA?
- Ranking the NCAA's five biggest legal battles
- Will a College Football Playoff help players? Then who needs it?
- Why college football players deserve more money than your dad does
- How closely players in "NCAA Football 14" match real players
- It's not just O'Bannon: What to know about every major NCAA change