Back In The Spotlight: More On Eddie O's Leading The Charge Against NCAA

We have some more followups on the story about Eddie O's lawsuit against the NCAA based on the discussions in the last night comment thread. Couple of really interesting stories are now out regarding O'Bannon's role as the lead plaintiff in the class action lawsuit against the NCAA alleging that the NCAA "has illegally deprived former student-athletes" from "myriad revenue streams" including DVDs, video games, memorabilia, photographs, television rebroadcasts and use in advertising."

First, Dan Wetzel from Yahoo! Sports (HT bryanucla) has a good story that sheds light on Ed's motivation for putting him back in the national spotlight as the leading figure in what could be one of the more important cases in the history of NCAA.  As Dan reported for Eddie O, who has been living "a comfortable life as a car salesman, husband and father of three in suburban Las Vegas," he was "as troubled by the principle as the potential profits." Michael Hausfeld, the lead co-counsel of this case on the crux of Ed's battle with the NCAA:

At the crux of the battle is O’Bannon’s assertion that he never gave the NCAA the right to do such a thing.

"There was no contractual or other granting of the right by a former student-athlete to the NCAA or any of the universities or conferences to capitalize on the use and licensing of former student-athlete’s images," lead co-counsel Michael Hausfeld said Monday. "The NCAA is just exercising it anyway."

BTW Hausfeld is one of the attorneys of a powerful team comprised of two of the country's most high profile law firms, including "one that secured reparations for Holocaust survivors from Swiss banks." Also, Hausfeld LLC per Wetzel "has recovered billions in worldwide class action suits ranging from reparations from price fixing cartels to benefactors of slave labor." Moreover, Hausfeld picked Ed because per Wetzel's report he was looking for that perfect lead plaintiff in the form of "a former athlete with the name and communication skills needed for a major undertaking." So these guys are not messing around.

As for some of the key facts and legal issues implicated in this case come with me after the jump.

To base his claims Eddie O and the other athletes are referrering to a series of documents they were require to sign as student athletes. From Wetzel's piece:

In the past the NCAA has defended the ability to profit off current student-athletes by citing so-called "scholarship papers," or "Form 08-3a" in NCAA jargon, that grant it. The lawsuit alleges the NCAA has simply extended that privilege into eternity.

While arguing the NCAA coerces uninformed students to sign that form, O’Bannon is not arguing for payment to current players.

"When you’re in school you’re obligated to live up to your scholarship," O’Bannon said. "But once you’re done, you physically, as well as your likeness, should leave the university and the NCAA."

Hausfeld notes that the very forms the NCAA cites in controlling all revenue are for one-year terms. " [The scholarship] requires annual signing," he said. It’s proof that the NCAA has no right over former athletes.

"What it does is emphasize the illegality with the Association essentially saying by reason of these annual, limited grants of right, the Association and the universities can exercise the right to use the image of the former student-athlete eternally," Hausfeld said.

"The entire program is focused on the student-athletes’ enrollment in a university as well as the athletes’ eligibility," he continued. "You’ve got two absolute qualifiers. You need to be a student and you need to be eligible. Once that ends, there are no rights the Association acquires over you."

Here is the NCAA's counter:

In the NCAA's view, however, these documents promote the NCAA's core mission: the integration of intercollegiate athletics into higher education and the promotion of student-athletes' educational experiences. Along those lines, as a voluntary organization comprised primarily of colleges and universities, the NCAA tends to frown upon professional and other remunerative endeavors pursued by student-athletes.

Yet respected legal observers are not really buying that argument. Per Michael McCann at CNNSI.com who penned the other interesting story re. Ed's anti-trust case reports:

Some commentators do not find the NCAA's concerns persuasive. In an interview with SI.com, famed attorney Alan Milstein of Sherman, Silverstein, Kohl, Rose & Podolsky argues, "If the NCAA genuinely wanted to keep the college game pure, it wouldn't sell any images or likenesses. Plus, compare how the NCAA treats student-athletes with how colleges and universities treat students who are professional actors or musicians -- they, unlike student-athletes, can keep their earnings without jeopardizing their scholarships. It is completely unfair for student-athletes to be treated differently."

Per McCann there are two "core areas of law implicated by O'Bannon v. NCAA":

First, by requiring student-athletes to forgo their identity rights in perpetuity, the NCAA has allegedly restrained trade in violation of the Sherman Act, a core source of federal antitrust law. Here's why: student-athletes, but for their authorization of the NCAA to license their images and likenesses, would be able to negotiate their own licensing deals after leaving college. If they could do so, more licenses would be sold, which would theoretically produce a more competitive market for those licenses. A more competitive market normally means more choices and better prices for consumers. For example, if former student-athletes could negotiate their own licensing deals, multiple video game publishers could publish games featuring ex-players. More games could enhance technological innovation and lower prices for video game consumers.

Second, according to the plaintiffs, the NCAA has deprived them of their "right of publicity." The right of publicity refers to the property interest of a person's name or likeness, i.e. one's image, voice or even signature. Last year, when explaining why the NCAA has refrained from suing CBS over its use of player information in its fantasy sports game on CBS Sportsline.com, NCAA officials acknowledged that players' rights of publicity belong to the players, and not to the NCAA.

The NCAA, however, will likely argue that by freely signing the Student-Athlete statement and similar documents, and by accepting free tuition, room, board, and other benefits as part of their athletic scholarship, student-athletes forgo any potential antitrust injury and also agree to not profit off of whatever property rights they might otherwise enjoy. The NCAA will probably also contend that under "Rule of Reason" analysis, which governs many claims under Section 1 of the Sherman Act, the policies O'Bannon challenges are more pro-competitive than anti-competitive. If so, the NCAA would likely defeat O'Bannon's antitrust claims.

In assessing O'Bannon's claims, a court will consider the extent to which student-athletes possess a real "choice" when presented with the Student-Athlete statement and similar documents. On that front, O'Bannon appears emboldened by NCAA policies on student-athletes' access to legal counsel. According to O'Bannon, neither NCAA officials nor college athletic officials advise student-athletes that they can seek legal advice in connection with the release of future compensation rights. Particularly given the lack of "life experience" of most incoming student-athletes, such a policy may be viewed as arguably exploitative and also one that creates a disparity in bargaining power.

And it looks like Ed O might abe able to point to recent case law to bolster his arguments:

Recent case law may bolster O'Bannon. In Oliver v. NCAA, an Ohio State court earlier this year held that an NCAA bylaw that prohibited a lawyer from being present during negotiations between a drafted high school baseball player and a Major League Baseball team violated public policy. The case is currently under appeal.

And also keep in mind just last year a group of retired NFL players won a class action lawsuit against the NFL Players Association, arguing that the union conspired with Electronic Arts to use their likenesses in the Madden series without proper compensation.Even though the NFLPA was threatening to appeal, they ended up settling for $26 million. [More at 1up.com, HT westwood12003 to and insomniaclounge].

Obviously the stakes of this case is enoromous. Have to say it is very cool to see a Bruin legend taking the lead role in a case that could bring about much needed reforms in the current state of NCAA athletics. When it comes to leading the charge for progressive reform and bringing about needed change Bruin athletes have built an unmatched tradition. It is great to see Ed O now leading the charge for a new generation of athletes.

This Bruin will be rooting for him. Go Ed go.

GO BRUINS.

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