Open Letter to Mountaineer Nation

  • By Oliver Luck
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  • June 09, 2014 04:24 PM
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An Open Letter to Mountaineer Fans,
Claudia Ann Wilken is a Federal District Court Judge in Oakland, Calif. College sports fans across the country may not know much about her, but she could become one of the most influential people in the country over the next few weeks by changing the way that collegiate athletics operate. She was appointed to the bench by President Bill Clinton in 1993.  Judge Wilken, who graduated from Stanford and received her law degree from California-Berkeley, will oversee the O'Bannon vs. NCAA case, which opens for trial today in her courtroom.
This case has the potential to change fundamentally the 100-year-old relationship between student-athletes and their universities. Historically, the 1984 case Oklahoma vs. NCAA, which saw the NCAA lose its right to market the television appearances for its member schools, was considered to be the most important legal decision in the modern history of college athletics. The O'Bannon case may just challenge that.
The plaintiff in this case, Ed O'Bannon, was a scholarship athlete at UCLA in the early 1990s. He led the Bruins to an NCAA Championship and despite being a first round pick in the 1995 NBA draft by the New Jersey Nets, he didn’t enjoy much of a professional career in the United States.
O'Bannon and his co-plaintiffs, who are current student-athletes, claim that the NCAA and its member institutions illegally conspired to set the price of a student-athletes name, image and likeness at zero and then turned around and sold the student-athletes' names, images and likenesses to a variety of organizations, most notably TV networks and commercial sponsors, for significant money.
The case is complicated and has changed somewhat since it was filed five years ago. Nonetheless, I would encourage you to read an excellent and insightful analysis of the case written by Professor Michael McCann of the University of New Hampshire Law School. It is available at http://sportsillustrated.cnn.com/college-football/news/20140605/ed-obannon-ncaa-trial-primer/ (thanks to Professor McCann for allowing his article to be shared).
Similar to the Oklahoma case, the O'Bannon case could cast very long shadows on the way athletic departments at big colleges and universities do business. The 1984 Oklahoma case resulted in the NCAA giving up its control of Division 1 college football. As a result of that United States Supreme Court decision, the conferences eventually began to create the television packages for their member schools, a system that is still in place today. One could argue that this "strong conference" arrangement led to the recent moves in realignment (including our move to the Big 12) and the ever-louder call for autonomy by the 65 schools in the so-called highly visible conferences - Pac 12, Big Ten, ACC, SEC and Big 12.
So what could a decision in favor of the plaintiffs actually mean?  Well, the judge may allow student-athletes to use their own names, images and likenesses for commercial purposes. For example, a WVU student-athlete could arrange with a local automobile dealership or restaurant or dry-cleaner to shoot a commercial in which the student-athlete endorses the dealership. The student-athlete would receive compensation for this appearance, much like a professional athlete would, and analogous to professional sports, the student-athlete would not be allowed to use the marks and logos of his or her school.
Also, a student-athlete may be allowed to sell autographs, pictures or memorabilia or license archival footage and then benefit materially from that activity.
In addition, the student-athlete may be allowed to create merchandise that is specific to the individual, i.e., with the player's name on the back. Simply put, college student-athletes would be able to do many of the same things that you see from professional athletes and with the same constraints that professional athletes face.
But the more attractive goal for the plaintiffs is to receive a piece of the television pie. The plaintiffs’ argument here is that the name, image and likeness of the student-athlete is also being used without consent by the television networks. Needless to say, the television contracts are the mother’s milk for the conferences and their member schools.
Please note, though, that even with a victory for the plaintiffs, student-athletes would remain students. This fundamental facet of the collegiate model would not change, and it is important to note that this case does not put into question the issue of a scholarship "cap". However, there are a number of other recently filed lawsuits, including one each from former Mountaineer football players Shawne Alston and Nick Kindler, accusing the NCAA and its member conferences and schools of illegally capping the value of a scholarship.
The O'Bannon case has the potential to be a proverbial game-changer for college athletics. Judge Wilken's decision in this case could come as early as the end of this month since this is a bench trial, i.e., there is no jury.
My advice is to buckle up, Mountaineer fans, because the issues that will be resolved over the next few months, including O'Bannon, autonomy and full cost of attendance, very well may change the landscape in college athletics.
Oliver Luck
Director of Athletics
West Virginia University