- The Washington Times - Wednesday, July 22, 2009

Former UCLA basketball standout Ed O’Bannon has filed a class action lawsuit seeking to stop the NCAA from licensing the images and likenesses of former college athletes in DVDs, photographs and other products.

The lawsuit, filed Tuesday afternoon in U.S. District Court in San Francisco, says the NCAA has improperly benefited from using former Division I football and basketball players’ images even after they stopped playing and seeks an injunction to stop the practice.

It also seeks damages and an accounting of the money made by the NCAA from past licensing. In addition, the lawsuit says the NCAA has violated antitrust laws by not allowing athletes to negotiate their own licensing deals.

O’Bannon, a member of UCLA’s 1995 national championship team, is the only player named in the suit. But attorneys said the case was filed on behalf of thousands of athletes.

“We’re going to assist them in challenging the NCAA’s right to license their [image] and likeness,” said Megan Jones, an attorney in the D.C. office of Hausfeld LLP, one of the firms representing O’Bannon. “As the growth of technology has increased, so has the means by which the NCAA can license these images. There’s been an awakening in the players because they’re seeing themselves more and more places. And they’re asking, ‘How did I get there without anyone talking to me?’ ”

The NCAA declined to comment because it had not reviewed the lawsuit. In the past, it has denied any infringement of athletes’ rights, arguing that paying players would be contrary to the basis of amateur athletics.

O’Bannon agreed to be the lead plaintiff in the case after meeting with Sonny Vaccaro, a former sports marketing executive who has toured the country the last two years to speak out against the NCAA’s lack of compensation for players.

“I just really want people to understand that it’s all about exploitation,” O’Bannon said. “The NCAA has exploited its ex-players and student athletes, and it’s about time everyone sees that.”

Vaccaro called the NCAA’s refusal to compensate former players for the licensing of their images “the ultimate servitude.”

“They don’t have the right in perpetuity,” he said Tuesday. “No one has the right to anything for an indeterminate amount of time.”

The lawsuit does not ask for a specific amount in damages. But any award likely would be sizable; the NCAA licenses a wide array of products while also allowing for broadcasts of past games and other events involving players.

This is not the first legal challenge to the NCAA’s use of college players’ images. In May, former Nebraska quarterback Sam Keller sued the NCAA and video game-maker EA Sports on the grounds that the company had no right to use players’ likenesses in its games. EA Sports and the NCAA have claimed innocence, arguing that the games do not use photos or names of players.

Legal analysts said there is a good chance this latest case will survive at least initial legal challenges because of the roster of experienced and high-profile attorneys involved. Hausfeld is seen as one of the top class action litigators in the country. Other attorneys include David Boies, who worked on behalf of former Vice President Al Gore during the recount of the 2000 presidential election.

But experts said handicapping the case could be challenging.

“Whatever benefits there are in promoting the amateur mission of the NCAA for existing college players, I’m not sure that argument is as salient in the context of [retired] guys,” said Michael McCann, associate professor at Vermont Law School and a columnist for SI.com. “A guy like Ed O’Bannon, did he give up the right to license his image just by being a college athlete? The NCAA could argue that ‘yeah, you do. There’s free tuition and all the benefits you get as a college player.’ So it will be interesting because there are good arguments on both sides.”

• Tim Lemke can be reached at tlemke@washingtontimes.com.

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