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FENNO: Active plaintiff could be NCAA’s Curt Flood
Buried in the 68-page transcript from last week’s U.S. District Court hearing in Ed O’Bannon’s lawsuit against the NCAA is the black-and-white reality that will shake college athletics.
Someone is going to stand up.
Not one of the former players like O’Bannon or Bill Russell or Sam Keller. They’re all part of the litigation against the NCAA seeking compensation for the organization’s use of athletes’ likenesses in television broadcasts, video games and more. But they’re the past.
Last week’s 88-minute hearing in front of Judge Claudia Wilken all but assured a current college athlete will join them.
Yes, someone, likely a football or men’s basketball player, will add his name to the lawsuit that says college athletes should get a cut of the money they’re generating.
Remember the name? Back in 1969, Flood confronted another slanted system. Major League Baseball’s reserve clause bound players to their teams as long as they played. Flood had enough after the Cardinals dealt him to the Phillies; he asked commissioner Bowie Kuhn to be declared a free agent.
Sure, the decades-old system had plenty of supporters to maintain the money-making comfort of the status quo. Same as the NCAA. Flood’s stand wasn’t popular. The principle, though, mattered more to him.
“After twelve years in the major leagues,” Flood wrote in a letter to Kuhn that Christmas Eve, “I do not feel I am a piece of property to be bought and sold irrespective of my wishes. I believe that any system which produces that result violates my basic rights as a citizen and is inconsistent with the laws of the United States and of the several States.”
Kuhn denied the request. A $1 million lawsuit that the U.S. Supreme Court eventually decided in favor of MLB in 1972 followed. Flood didn’t kill the reserve clause. But his stand helped open the door to free agency that’s as much of a part of baseball today as pine tar, sunflower seeds and overpriced stadium beer.
Flood’s example is instructive when examining the legal fight against the NCAA’s slanted system that included last week, if you can believe it, an NCAA attorney claiming television networks pay hundreds of millions of dollars simply for “exclusive access” to stadiums and arenas.
The judge laughed.
The hearing explored if the litigation will be certified as a class. There’s a catch. If the plaintiffs want to make claims on behalf of current athletes (in addition to former ones), Wilken asserted, one needs to be part of the lawsuit. The judge asked Michael Hausfeld, lead attorney for the plaintiffs, if they could produce such a representative.
“We could,” Hausfeld said.
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