- The Washington Times - Thursday, July 23, 2009

Now it’s time for the NCAA to play some defense.

The nation’s top collegiate athletic body stands accused of everything from exploitation to slavery, with a horde of lawyers lined up to challenge the treatment of its athletes.

Former UCLA basketball star Ed O’Bannon likely will be joined by thousands of other athletes in a class action suit saying that the NCAA has wrongly benefited from the use of player images in everything from DVDs to replays of game broadcasts. Meanwhile, former Nebraska quarterback Sam Keller has sued the NCAA and EA Sports, claiming that college football video games use the likenesses of players improperly.

While these lawsuits may leave college sports fans disinterested, they should be aware that these are serious cases brought by serious people with plenty of patience. A list of the attorneys involved reads like a who’s who of civil litigators who relish the chance to work on groundbreaking cases. And make no mistake: A victory by the players in either case could drastically change the entire nature of amateur athletics in America. College athletes getting paid? It’s possible.

The question at hand is whether NCAA has the right to use and license player names and likenesses without compensating athletes and, if so, whether that right extends to beyond when players are active. The O’Bannon lawsuit is focused on the rights of athletes who are no longer playing, but legal experts said the case could easily be used to set a precedent for how current players should be treated.

On one hand, the players are amateurs, rewarded for their endeavors with a college education and the potential to hone their games before going pro. On the other hand, the NCAA reaps millions of dollars from the use of player images in advertising, merchandise and the airing of game broadcasts.

It’s the kind of stuff Sonny Vaccaro has been railing about for years, most recently during a series of speeches at universities across the country. Vaccaro, the former sports marketing guru who matched Michael Jordan with Nike, has been hired as an unpaid consultant on the case and was the man who talked O’Bannon into becoming a lead plaintiff.

“We gathered steam, and I think we’re going to get answers now,” Vaccaro said. “We’re going to trial, and I think they have to be accountable. No one’s ever held them accountable. People have always kind of let it go.”

There’s also an antitrust argument being made here. According to O’Bannon’s attorneys, the NCAA is violating antitrust laws by not allowing athletes to negotiate their own licensing deals. That argument may have a tougher road to travel, experts said, because thousands of athletes negotiating on their own wouldn’t necessarily result in a better marketplace for consumers. (Perhaps there would be more options, but things would be a lot more cluttered.)

If the O’Bannon case goes all the way to a jury, however, the NCAA could be asked to open its books and divulge financial information that normally doesn’t see the light of day. That’s the kind of scenario all sports leagues strive to avoid.

“If this goes to trial, the NCAA could be forced to reveal a lot of information it otherwise doesn’t have to make publicly available,” said Michael McCann, an associate professor at Vermont Law School and columnist for SI.com. “I think that, in and of itself, potentially makes the case very compelling.”

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