July 26, 2013 by Brian Palmer
Curt Flood is a name that gets lost in the annals of sports history. His name becomes forgotten because his performance on the field pales in comparison to his accomplishment off the field. Flood, the former St. Louis Cardinals outfielder, challenged Major League Baseball’s reserve clause in 1969 and changed the way professional athletes are paid in the United States by helping to usher in the notion of free agency.
During his battle with MLB, Flood faced a significant amount of criticism among his peers and from those outside of baseball for trying to change the status quo. He was a baseball player and was living every young boy’s dream.
The same could be said about collegiate student-athletes. Many Division I athletes have a significant portion — if not all — of their room and board, tuition, and other expenses paid for by their school. However, greed is not the major factor when it comes to college athletes challenging the NCAA.
It’s about the celebrated employees — the student-athletes — in a multibillion-dollar business having the opportunity to share in the revenues of the NCAA as they continue to increase. It was the NCAA and various university presidents and boards of trustees that decided to turn collegiate athletics into big business, not the student-athletes. As a result of the increasing revenues, everyone in the NCAA has financially benefited. However, the NCAA is at a crossroads with how it does business.
In June, Judge Claudia Wilken told plaintiffs’ attorneys in former University of California, Los Angeles basketball player Ed O’Bannon’s suit against the NCAA, Electronic Arts and the Collegiate Licensing Co. that if they wanted to include current college athletes in their proposed class-action lawsuit, they would have to add at least one current student-athlete. Last week they found their own Curt Flood: actually, six of them.
University of Arizona middle linebacker Jake Fischer, Arizona kicker Jake Smith, Clemson University cornerback Darius Robinson, Vanderbilt University middle linebacker Chase Garnham, University of Minnesota wide receiver Victor Keise, and Minnesota tight end Moses Alipate were all named as additional plaintiffs in the O’Bannon lawsuit.
If Wilken certifies a class that includes current and former players, as described by O’Bannon’s attorney, Michael Hausfeld, the focus of the case would shift from the use of former players’ likenesses in video games and videos to the lucrative media rights deals between television networks, video game companies, and the NCAA conferences and universities. Potential damages could increase dramatically, and the NCAA would be forced to defend its concept of amateurism in court. Plaintiffs would seek a new revenue distribution model that would allow players to receive a specific portion of the revenue generated by broadcast rights.
Hausfeld expressed concern that the NCAA would react harshly against current student-athlete plaintiffs by investigating them or by restricting eligibility. This is an accusation that the NCAA has vehemently denied.
“Your July 8, 2013, request for a stipulation regarding hypothetical ‘retaliation’ against plaintiffs is completely unnecessary and, given the NCAA’s prior representations on this topic, offensive,” NCAA attorney Gregory Curtner said.
If the class-action suit is certified and the plaintiffs win this case against the NCAA, EA Sports and the Collegiate Licensing Co., they are then entitled to a piece of the billions of dollars that the NCAA and its universities rake in every year. The NCAA men’s basketball tournament contract averages $770 million per year. The college football playoff and its fellow bowl games just signed a deal with ESPN for $5.6 billion over 12 years.
These numbers don’t include the hundreds of millions of dollars that the conferences make by selling their own individual television rights. Including current players in this lawsuit has made the potential damages jump from millions of dollars to billions if the NCAA loses. A decision is expected later this summer to see if Wilken decides to certify this class. Her decision will have a lasting impact on past, present and future student-athletes.