O’Bannon Turns Up the Heat on NCAA

O’Bannon v. NCAA, already one of the most important and fascinating cases in the area of sports law, just became much more interesting.  O’Bannon now seeks permission to expand the class action include current Division I football and basketball players.  To this point, the suit included only former athletes.  Michael McCann has an excellent piece on this development on SI.com.

Here are my thoughts on O’Bannon’s legal manuever:

1.  It seems risky.  To me, the beauty of O’Bannon’s case is that few can argue that a former athlete should not be entitled to profit from the commercial use of  his likeness.   Moreover, few (besides the NCAA of course) can argue that the NCAA should control an athlete’s likeness long after the athlete has left school (even assuming that the NCAA does control an athlete’s right to his likeness while a student).  By involving current student-athletes, the lines become blurred, the opposition becomes louder and the solution becomes more complex.  Now O’Bannon involves the “pay for play” debate (the plaintiffs seek the creation of trust fund for student-athletes).

2.  So much for the domino theory.  I had previously believed that a victory by O’Bannon would be the first domino to fall in the process of knocking down the NCAA’s notion of amateurism.  The idea was that O’Bannon wouldn’t change anything for current student-athletes, but its precedent would lead to other cases brought by current athletes.  Now it appears that O’Bannon is going to try to knock down all of the dominoes at once.

3.  With great risk comes great reward.  Bringing current student-athletes into this case adds significant pressure to the NCAA.  If the NCAA loses, the entire amateur system is vulnerable.

4.  Will current student-athletes join the suit?  McCann alludes to this – will star college players avoid the lawsuit for fear it will negatively impact their college and professional careers?  Also will schools and coaches discourage their involvement in the suit?

Stay tuned for more on O’Bannon v. NCAA.

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