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WVU Law Professor's Views on O’Bannon Suit


CAMPUS CONNECTION
By John Antonik for WVUsports.com
June 17, 2014 10:55 AM

>>> Read Oliver Luck's Open Letter to Mountaineer Nation
 
Weishart
Do a Google search of the name Ed O’Bannon and you will find enough information to keep you occupied for days on end.
 
Of course, most of us by now know that Ed O’Bannon was a former UCLA men’s basketball player who helped the Bruins win the 1995 NCAA title. O’Bannon’s NBA career, however, never materialized and fizzled out after just two seasons with the New Jersey Nets and Dallas Mavericks.
 
And once his professional career overseas ended, O’Bannon filed a class action lawsuit against the NCAA on behalf of football and men’s basketball players over the licensing of the names, images and likenesses (NIL) of former student-athletes in television broadcasts, rebroadcasts, NCAA-branded video games, and other forms of marketing.
 
Presently, O’Bannon’s case is in federal district court in California where Chief Judge Claudia Wilken is presiding over it. Because O’Bannon opted for a bench trial and the NCAA’s request for a jury trial was denied, it is Judge Wilken’s decision alone that could potentially impact the way the NCAA does business from this point moving forward, although the losing party will likely appeal to a higher court.
 
Joshua Weishart, visiting assistant professor at the West Virginia University College of Law, has an interest in education law and once served as a judicial extern for Judge Wilken, so he understands many of the particulars concerning the O’Bannon case.
 
“The O’Bannon, case along with other legal challenges to the way the NCAA operates, have shifted the momentum toward some kind of compensation (for student-athletes),” said Weishart.
 
Current NCAA rules say schools cannot provide more compensation to student-athletes than what is already offered in the value of an athletic scholarship consisting of tuition, room, board, books and associated fees. To be eligible to participate in intercollegiate athletics, students must also sign a NCAA form relinquishing their publicity rights. O’Bannon is arguing that the NCAA’s rules represent an illegal restraint on an athlete’s ability to earn revenue from his or her NIL. His claims were bolstered a couple of years ago when Hall of Fame basketball players Oscar Robertson and Bill Russell joined the suit.
 
O’Bannon’s attorneys are seeking an injunction immediately prohibiting the NCAA from denying current and former football and men’s basketball players the ability to license and receive a share of the revenue from their NIL. This includes potentially a student-athlete’s access to some of the television revenue that individual conferences are now able to negotiate on their own behalf, which, ironically, came about in 1984 when the NCAA lost a lawsuit filed by the University of Oklahoma on behalf of the now defunct College Football Association (CFA) that reached the Supreme Court.
 
Another irony, according to Weishart, is that the NCAA is relying on some of the language in that adverse ruling to support its arguments in the O’Bannon case.
 
The NCAA’s argument is that an adverse ruling would permanently damage the competitive balance of college sports and would represent a catastrophic disruption to the industry as a whole, particularly for non-revenue sports, while also potentially violating the gender equity requirements of Title IX.
 
As an example, an unfavorable ruling for the NCAA could potentially enable School X to have a competitive advantage over School Y because School X can offer more marketing and sponsorship opportunities to high-profile football and men’s basketball players, Weishart explains.
 
“The schools in the bigger TV markets could have access to the better players,” he says.
 
On the other side, O’Bannon’s attorneys are attempting to show that a favorable ruling would not substantially harm the NCAA as an organization and that it can continue to exist and conduct business in a much less restrictive way in respect to student-athlete compensation.
 
In this instance, a favorable ruling for O’Bannon could possibly mean some sort of a trust fund managed by the NCAA that athletes could have access to once their collegiate careers have ended.
 
There are other cases either ongoing or recently settled before the O’Bannon case before Judge Wilken that are also impacting the way the NCAA conducts business, specifically the Sam Keller lawsuit that recently awarded a $40 million settlement to former players over video game proceeds, and the Shawne Alston case filed by sports labor attorney Jeffery Kessler that is taking aim at college scholarship limits. Alston, of course, played football at West Virginia University and was a member of the Mountaineers’ 2012 Orange Bowl championship team.
 
The Alston case, and a similar case brought by his former WVU teammate Nick Kindler, alleges that NCAA and the five power conferences have engaged in price fixing by colluding to cap the value of an athletic scholarship much lower than the actual costs of attending school, says Weishart. Unrestricted by the NCAA's rules, the complaint asserts that the free market would allow universities to compete to offer scholarships that cover the full cost of attendance.
 
What these lawsuits - especially the O’Bannon case - will mean to the NCAA as an organization is anyone’s guess. Some believe Armageddon could possibly be at the NCAA’s doorstep, while others see an adverse ruling against the NCAA in the O’Bannon case as only impacting a handful of athletes in football and men’s basketball who can command a market for their NIL.
 
“There are only so many Johnny Footballs out there,” Weishart points out.
 
Although Weishart is unwilling to predict the outcome in the O’Bannon case, he notes that the NCAA is willing to go all-in because the issues are paramount to the way it currently does business.
 
“(The NCAA) could have more control over how this all plays out,” he said.
 
Stay tuned.
 
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