O’Bannon v. NCAA

A decision could have major implications on the NCAA’s business model.

Daily Editorial Board

As the NCAA tournament continues, most viewers will notice promotional portions of the broadcast containing former players and their classic “one shining moments.” Importantly, the NCAA uses these videos without making any royalty payments to former student-athletes.

This is a result of Form 08-3a, in which players must sign away the rights to their likenesses for the promotion of NCAA athletics free in order to play in the NCAA. This is the core of Ed O’Bannon’s case against the NCAA, which was recently certified as a class action lawsuit.

O’Bannon alleges that the NCAA’s practice of forcing players to sign away their likeness rights constitutes a violation of the Sherman Anti-Trust Act, which prohibits artificially fixing prices. While it has been upheld in the courts that the NCAA’s interest in ensuring amateurism of student-athletes — and therefore their ability to prohibit endorsement deals and payments to student-athletes — O’Bannon’s suit is able to distinguish itself because he is suing as a former athlete. His likeness was used in NCAA Football, a game by EA Sports, as part of a “classic” UCLA Bruins team.

A ruling in favor of O’Bannon could fundamentally alter the way the NCAA does business. It is likely that the NCAA would have to establish some form of a trust fund to make payments to former athletes. However, this raises significant Title IX issues, which mandates that men and women receive roughly equal opportunities in higher education.

Administrators argue that this would make it harder for the revenue sports, such as men’s football and basketball, to support the non-revenue sports. While some funding would be diverted, these athletes deserve some form of payment — perhaps in the form of continued medical insurance coverage.