October 7, 2013
From this morning’s online Chronicle of Higher Education.
O’Bannon Lawyers Signal Openness to Settlement Talks With NCAA
By Brad Wolverton
The plaintiffs’ lawyers in a federal antitrust lawsuit involving the rights of college athletes say they are open to settlement discussions with the National Collegiate Athletic Association, a potential sign of compromise in the closely watched case.
Lawyers for Ed O’Bannon, the former UCLA standout who is suing the NCAA over perceived injustices in its system, say they have sent signals to NCAA lawyers suggesting a willingness to resolve the case before trial. But in a statement to The Chronicle, Donald M. Remy, the NCAA’s top lawyer, said that the plaintiffs had “not reached out to the NCAA” about a possible settlement and any such assertion was “patently false.”
Mr. O’Bannon and a potential class of current and former players have argued that the NCAA, through its antiquated system of amateurism, illegally prevents athletes from earning their fair share of the money the NCAA brings in from commercial products, including video games and other merchandise. The plaintiffs are also laying claim to potentially hundreds of millions of dollars in television revenue. The NCAA has vigorously denied the claims, and last month vowed to fight the case to the Supreme Court, if necessary.
The judge in the case, which is being heard in the U.S. District Court for the Northern District of California, is considering whether to certify the plaintiffs as a class. A trial date has been set for next summer.
The lawsuit has sparked widespread debate about whether players should be paid. But Michael D. Hausfeld, the lead lawyer for the plaintiffs, said that the suit’s unstated function is to change the relationship between players, their colleges, and the NCAA.
To do that, he told The Chronicle, the association would not need to pay players explicitly.
“You don’t have to say, ‘I’m paying you,’” he said. “It’s not the NCAA paying; it’s the licensee giving a share of their revenue” to players.
‘A Union Is Not Necessary’
Legal experts say the two sides could resolve their biggest differences by focusing less on payments to players—which NCAA colleges have said they are unwilling to provide—and instead examining new ways of providing benefits to players. Such ideas could include improved health care, increased scholarship aid, and more opportunities for athletes to complete their education.
Those proposals would not undercut the NCAA’s amateur ideals, said Matt Mitten, a law professor and director of the National Sports Law Institute at Marquette University.
“If the plaintiffs were willing to consider something other than, ‘Hey, here’s a pool of money effectively used to compensate athletes for their playing services,’ arguably that’s consistent with furthering the educational aspect of intercollegiate athletics,” he said.
Mr. Hausfeld said his team would be open to any changes that would provide players with a more equitable role in big-time sports.
“We’ve cited what a nonrestrictive market would look like,” he said, but he would not describe specific examples of what players might be seeking. If the NCAA agreed to sit down, he said, the two sides could find out where they might have common ground. (His willingness to discuss a settlement, he added, was not indicative of any deviation from the plaintiffs’ “absolute resolve” to continue with the litigation, if necessary.)
For the plaintiffs, any settlement would probably need to provide increased rights to players, including more due-process protections involving alleged NCAA violations, fewer restrictions on transfers, and more negotiating power.
“A union is not necessary, but an association of students is,” Mr. Hausfeld said. “The NCAA claims to have student-athlete representation within the organization. … But how can you have a legitimate independent voice if you’re being controlled by the very association that supposedly represents you?”
In recent weeks, many leading athletics officials have suggested that colleges were open to considering new ways of supporting athletes, but they oppose unionization. Such efforts, they believe, would lead to attempts to treat athletes as employees.
“There’s a huge disparity between looking at the scholarship model and revisiting what student-athletes receive to the leap that the lawyers in this suit go to,” said one official, who asked not to be identified because of the sensitivity of the matter.
For its part, the NCAA has consistently defended its position on amateurism and shown no signs of backing down in the lawsuit. In an interview last month with USA Today, Mr. Remy, the NCAA lawyer, said the association was “not prepared to compromise on the case.”
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