O’Bannon case could change NCAA landscape
Former UCLA star Ed O’Bannon is part of a lawsuit that could end up playing a significant role in whether NCAA athletes get paid.
Seattle Times staff reporter
They demolished the Kingdome years ago, but the likeness of the 1995 NCAA Final Four most outstanding player has lived on in video games.
Something about that seemed very backward to Ed O'Bannon, so here we sit, two days from a U.S. District Court hearing in Oakland that some say could blow the lid off college athletics.
“It started out as something I thought was an injustice,” said O’Bannon by phone from Henderson, Nev., where he is sales manager for a Toyota car dealership. “Now it’s taken on a life of its own.”
O'Bannon is 40. Back in the ’90s, he was a forward for the UCLA basketball team, a player who performed with sort of a regal bearing. In the last of three NCAA title games at the Kingdome, O'Bannon had a monster 30-point, 17-rebound effort to help beat Arkansas.
Five years later came the demise of the Kingdome, where Ed O'Bannon had dropped to his knees and wept openly, and every time he’s been back in Seattle he gets a pang of regret at the drab building’s demise.
He moved on, fathered three children, and one day in 2009, he was over at the home of a friend whose son was playing a video game. O’Bannon saw something familiar in the figure on the screen, in the left hand and the drop step.
It was he. O’Bannon was rankled that somebody was still profiting from his image and he was getting nothing. He decided to sue the NCAA.
His name became most identifiable among several plaintiffs in an antitrust lawsuit that seeks a share of royalty payments for former football and men’s basketball players and for current and future athletes to be able to work out their own licensing deals.
From there, it’s probably only a short walk to the concept of paying college athletes.
The pivotal hearing Thursday is in the U.S. District courtroom of Judge Claudia Wilken. The case is Keller v. Electronic Arts Inc. et al, Sam Keller being the former Arizona State and Nebraska quarterback suing EA Sports for use of his likeness in video games. He’s represented by Seattle attorney Steve Berman.
O’Bannon also filed suit, alleging a broader misuse of athletes’ images in commercial enterprises like movies and television, and his name has become the one chiefly associated with the cause. Wilken will consider whether the case merits class-action status, which could open it up to untold numbers of current and former college athletes.
“I guess it has the potential to get pretty big,” O'Bannon says, adding that his intention was only to redress what he saw as a personal wrong. “For me, it started with one thing. Now where it ends up is another thing entirely, and I'm good with it.
“My biggest thing, win or lose, is to provoke conversation.”
Done. A Bloomberg.com columnist says the lawsuit could hit the NCAA “with biblical force.” On Grantland.com, Charles Pierce compared the suit to a meteor and wrote, “If that one hits, and it’s more than likely that it will, it will be an extinction-level event for college sports as we know it.”
Before that, Jim Delany, the veteran commissioner of the Big Ten, didn’t spare the hyperbole. In what has become the mission statement of the sky-is-falling set, Delany, asked what might be the implications of an unfavorable ruling, replied, “Several models exist ... such as Division III.”
Meanwhile, a segment of the college athletics community is skeptical that a judge is going to set in motion an upheaval of a long-entrenched system. They reason that this might be another example of media taking potshots at the NCAA, a frequent whipping boy.
“That’s not the public perception, that (the case) is going to lose,” one athletic administrator told The Times. “(That narrative) is not exciting. What's most exciting” — he chuckles — “is that this could topple college athletics.”
Another athletic official doubts that Wilken will issue a ruling based solely on intellectual merit, without assessing the practical impact. Alarmists suggest that could include massive cuts of nonrevenue sports and possible setbacks in the women’s sports movement.
In any case, says that official, “If the worst case does happen, then you approach this thing like the tobacco companies approached their judicial decision: You deal with it. Last I saw, Philip Morris and R.J. Reynolds are still around.”
Still, there is considerable sentiment that the NCAA and its membership should be holding its figurative breath.
“I think it’s certainly the most threatening case the NCAA has encountered for some time, and possibly ever,” says sports legal analyst Mike McCann.
That’s also the belief of Warren Zola, assistant dean of Boston College's Carroll School of Management and a frequent critic of the NCAA.
“There's no doubt the claims the plaintiffs have made have legal standing,” Zola says. “They've jumped all sorts of hurdles, they've made all sorts of incredible advances in discovery. The NCAA is left to argue primarily on procedural grounds and delay tactics so far.”
NCAA chief counsel Donald Remy, responding on the NCAA website to an April filing by the plaintiffs, summed up his side: “It appears to be more of the same — baseless theories supported only by inaccurate speculation aimed at destroying amateurism in college athletics.”
Both McCann and Zola believe the case will be settled, with the class-certification outcome a key to determining leverage. Failing that, the case could drag on for years, with a trial likely for 2014 but an appeal probably to follow.
Central to the class-action issue is the question of athletic prominence. Jake Locker was a moneymaker for Washington during his quarterback days — his jersey seemed to be everywhere — but he had teammates who rarely played. How to parse those similarities and differences?
The difference is, college athletes are still considered amateurs, even if the definition is strained on some fronts.
“We will change the way college athletes are compensated,” wrote Berman, Keller's attorney, in an email. “They will get damages for past misuse of their names and in the future the monies will be held in trust while they play and released to them after. That's my prediction.”
O’Bannon is the latest in a line of UCLA athletes who, in varying ways, championed social-conscience causes. It includes Kareem Abdul-Jabbar, Bill Walton and more recently, former linebacker Ramogi Huma, who organized the National College Players Assn., an athletes’ advocacy group.
First, and most iconic, among all those Bruins was multisport athlete Jackie Robinson, who broke baseball's color barrier. His family, ironically, is close to O’Bannon’s mother’s side.
“I walk the same halls, humbly, after them,” O’Bannon says of those pioneers.
At 6 feet 8, O’Bannon cuts a large figure. It could soon become much bigger.
Bud Withers: 206-464-8281 or firstname.lastname@example.org