FENNO: Active plaintiff could be NCAA’s Curt Flood

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ANALYSIS/OPINION:

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.

Someone is going to become the NCAA’s Curt Flood.

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.

The attorney expressed reservations that, if named, the potential new plaintiff could lose eligibility or suffer retaliation for joining the lawsuit.

NCAA attorneys pooh-poohed the possibility.

“They have whatever rights they have,” said Gregory Curtner, representing the NCAA. “We don’t take away their rights.”

Yes, the same organization that profits from, among other things, video games that include the same jersey number, skin tone, athletic abilities, height, weight and hometown of “amateur” athletes is talking about their rights.

One internal Electronic Arts email from 2009 that’s part of the court record details the process tuning those not-so-random avatars to their real-life counterparts: “Check and tune key player ratings to ensure they stand out amongst the other players and are ‘authentic’ in their areas of expertise (eg. Sanders (VCU) top shot blocker, Chris Wright (Dayton) High Flyer, etc.).”

The same organization that, according to its confounding rule book, could punish an athlete who signed an autograph in exchange for a dime or who accepted a free ham sandwich.

That last one actually happened. Back in 2000, Nebraska quarterback Eric Crouch had to repay $22.77 for a ham sandwich and brief flight that left him temporarily ineligible.

The athlete who stands up enters this world of make-believe amateurism, where rights are as illusory as a portion of the proceeds for, say, those athletes modeled in “NCAA Football 13.” The risk of such a move and the courage required isn’t small.

The legal implications are significant. Including all current athletes in the lawsuit adds the piles of television money being printed on their backs. Video games are one thing. The television issue could push potential damages — permitted to be tripled in antitrust cases such as this — into the billions.

The plaintiffs want to keep the athlete’s name, whenever he or she is added, secret. The judge didn’t seem moved.

Even so, how could the athlete keep the participation under wraps? How will his coach react to the inevitable distraction? His teammates? His athletic director? His conference commissioner, as the athlete takes aim at the machinery of the NCAA his livelihood revolves around?

It’s one thing for an athlete to express dissatisfaction with the current system; the consequences of joining the lawsuit that could obliterate the model will ripple around the country. Standing up, really, is just the beginning.

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