Former star college athletes sue NCAA for right to make money
(CNN) — It was fourth and long and the clock was ticking down to half-time when the quarterback launched the Hail Mary pass. Tyrone Prothro charged down the field, reached around his opponent’s head and caught the football, tumbling into the end zone to score for Alabama, still wrapped around the defender.
The amazing catch propelled Prothro to stardom and, for a few weeks, the all-star receiver was one of the most talked about athletes in the world of college sports. The play was shown over and over again on television.
That was September 10, 2005. Less than a month later, he shattered his leg, and with it, his NFL prospects. Prothro graduated from the University of Alabama but never made a cent from the thing he studied the most — playing football.
“(He) had something that was monetized on TV, played over and over again,” said Sonny Vaccaro, the former Nike executive who practically invented the branding of athletes and has since become an advocate for paying them.
While Alabama and the SEC cashed in on the astonishing play that was to win Best Play of the year in the 2006 ESPYs, Prothro struggled. He spent years fruitlessly trying to land a coaching job while working as a bank teller and then in pest control.
Hardly the life he’d imagined on that Saturday in September 2005.
That’s the reality for many college athletes — one that Prothro and more than a dozen other athletes are trying to change.
They are all part of former UCLA basketball player Ed O’Bannon’s lawsuit against the NCAA, which goes to trial on Monday.
The suit seeks to end the NCAA’s control over the rights to college athletes’ names, images and likenesses.
As it stands now, when they commit to a university, players are required to sign a waiver that relinquishes their right to their own likenesses in every form.
That means they can’t make money off their television appearances, their jerseys, or in any other way.
Their universities get any revenues from selling sports paraphernalia or other material related to the players.
The O’Bannon suit alleges the waivers the athletes are required to sign are illegal, and they want players to be able to collectively negotiate the terms of their likenesses. Basically, they want a share of those profits.
“They’ve created a world where players can’t negotiate,” said Michael McCann, a sports-law attorney at the University of New Hampshire.
A win for O’Bannon could change college sports drastically. The NCAA might have to restructure its amateur model, even start paying college athletes.
Judge Claudia Wilken, who will decide the suit, has so far given the plaintiffs almost everything they’ve asked for, including the ability to amend and modify their lawsuit to give them a better chance at winning.
That may be no indication of how she’ll rule at the end of the trial, beginning Monday in federal court in Oakland, California. But experts in college sports and anti-trust law are predicting O’Bannon will prevail.
Legal appeals will likely delay a final outcome for years, but the O’Bannon suit is still in a position to be the first major NCAA reform effort to take hold.
The NCAA did not respond to repeated requests for comment over several days on O’Bannon’s suit and the broader issues.
In 2009, Ed O’Bannon was five years’ retired from professional basketball.
He’d worked hard to save money from his nine-year career in the NBA and Europe and was living a modest life with his wife and children in Las Vegas, when, during a visit at a friend’s home, he first saw himself in an EA Sports college basketball video game.
He decided it wasn’t fair that while he was grinding away at work each day, the NCAA and EA sports were making big bucks off his likeness.
So he decided to sue.
In the last five years, his lawsuit has expanded to become the symbolic antagonist to the NCAA, which organizes college sports — both those that generate revenue (basketball and football) and others such as soccer and lacrosse.
“I want players to get what they deserve,” O’Bannon told CNN in January. “I want to right a wrong, I want the game to change. I want the way the NCAA does business — I want that to change.”
His case has morphed into a complicated web of issues. For several years it was merged with a similar suit filed by former quarterback Sam Keller. Then last year, EA Sports settled for $40 million and the company announced it would make no more video games featuring college teams. Keller’s suit against the NCAA was separated and will go to its trial in 2015.
In both cases, the NCAA isn’t budging at all.
What could be next
For O’Bannon to win, the judge would have to agree that the waiver that players are forced to sign is illegal and demand that the NCAA pay athletes for the rights to their likenesses.
This would completely change the way the NCAA works, and that would mean athletes would need some kind of union to negotiate.
Already there is an organization on the sidelines waiting to help players handle the details.
Attorney Ken Feinberg, known best as special master of the 9/11 victims compensation fund, has formed the Former College Athletes Association, which he says will be ready to act on behalf of the athletes if the NCAA settles or O’Bannon wins.
“It will be ready to help represent athletes in sharing NCAA proceeds after they graduate from college and are in the marketplace earning a living like everyone else,” Feinberg said.
Unlike some of the other lawsuits against the NCAA that seek a free market for athletes, the O’Bannon case would put cash in the pockets of a large number of athletes — maybe even benefiting those in the non-profit-generating sports.
Feinberg says he envisions that the pool of money from television revenues would be evenly distributed to athletes on teams that are televised.
“We’re not going to get into the business of distinguishing between the bench warmer and the all-American tight end,” he said.
Players featured in video games and those whose jerseys are sold would get a cut of those profits, too.
O’Bannon dropped the part of the lawsuit that would have sought payment for former players, but they could still potentially get royalties when classic games are aired on TV in the future.
In all cases, the pay would come only after an athlete graduates or leaves school.
Challenge to NCAA core
There is a catch — O’Bannon is only suing the NCAA, and the NCAA doesn’t make money off regular season television games.
Revenue from the NCAA specifically comes from March Madness television contracts and from sports paraphernalia sales. It’s the conferences and the schools that negotiate the TV deals for — and profit from — Saturday football and regular season basketball games.
Sports-law attorney Michael McCann says he doesn’t see that as much of a problem. He thinks that the NCAA could easily demand each of its member schools share in its new burden, and pull the money from universities and “demand that each member school contribute its fair share.”
Yet critics of the O’Bannon suit say it’s a weak anti-trust claim, and that O’Bannon is suing the wrong entity, because the NCAA doesn’t make money from the regular season television contracts.
“You can bully people, that’s not an antitrust violation,” said Gary Roberts, a Indiana University sports-law attorney.
Still, Roberts says that based on the public support and recognition the O’Bannon case has gotten, he thinks it’s likely to win at trial but lose on appeal. Other efforts to dismantle the current NCAA model that have had less publicity might actually be more legally sound, Roberts said.
At the heart of all the lawsuits is a core challenge to the current NCAA model. All the critics maintain that the NCAA is not keeping its promise to pay players with a free education.
A CNN investigation found many public schools admit revenue-sport athletes with SAT and ACT academic scores far below the average of their peers. That leads to instances where players are forced into hodgepodge majors, grouped together in easy classes and getting too much help from tutors.
A key example of that is at the University of North Carolina, where whistle-blower Mary Willingham and former athletes say “paper classes” were used to keep eligible athletes who were admitted at much lower standards than the rest of the student body.
The NCAA has been widely criticized for not punishing UNC after the scandal was revealed. And many reformists have told CNN they believe it’s fear of the O’Bannon suit that led the organization to look the other way at UNC.
Willingham is listed as a potential witness in the O’Bannon trial. It’s unclear if she will testify, but she told CNN this week that she was told to be on standby. O’Bannon’s lawyer couldn’t be reached for comment.
For Prothro, there is no chance of cashing in on that ESPY-winning catch. Last month, the plaintiffs gave up their request for monetary damages in exchange for a bench trial, meaning there will be no jury, and the judge will make the decision.
O’Bannon says the goal isn’t to make money, it’s to change the culture of the NCAA and college sports.
“I think change, in my opinion, is inevitable. I think change needs to happen,” O’Bannon said. “A lot of players don’t have anything to show for their effort, when they go to school, because they put everything into that particular craft, and once it’s done, life kind of chews them up and spits them out.
“A player should be able to take what they did in college and kind of use that to, to their advantage, at least there should be something monetarily in the bank for them when they’re done, they can fall back on.”