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SBD/November 11, 2013/Colleges
Ed O'Bannon Ruling Permits Amateurism Challenge, But Blocks TV Damages
Published November 11, 2013
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INTRACTABLE PROBLEM: Wilken said that the plaintiffs who sought a class to seek monetary damages from the NCAA "could not identify a feasible way of determining which current and former athletes were 'actually harmed' by the NCAA's limits on what athletes can receive for playing sports." Wilken noted major-college football rosters have as many as 105 players and said that the video games' "inclusion of 68 players per team and that NCAA football teams allow multiple players to wear the same jersey number, 'makes it impossible to determine' which athletes suffered harm from being in the game 'without conducting thousands of individualized comparisons between real-life college football players and their potential videogame counterparts'" (USATODAY.com, 11/9).
SETTLEMENT POSSIBLE: SI.com's Michael McCann wrote Wilken's ruling, which "both sides publicly hail as a victory but is also bittersweet for both, sets the table for a historic trial next June." The order also "motivates both sides to engage in settlement discussions over the coming months." But sources said that the two sides "have not engaged in settlement talks and are essentially in a cold war." The absence of talks to date "is not surprising." Neither side until the ruling "could reasonably predict the economics of the case." The sides "now have more information and can better forecast whether the case carries the risk of tens of millions, hundreds of millions or even billions of dollars." There are "two remaining potential obstacles to settlement talks." First is whether the NCAA is "on firm ground to enter into settlement talks on behalf of its member schools and conferences." A settlement also would "help the NCAA incorporate Title IX considerations into any new system." A verdict for O'Bannon "would not address Title IX since that law is not part of the case." A second obstacle to settlement is whether O'Bannon has "appropriate standing to reach a settlement with the NCAA on behalf of future college athletes, who would have no input on the terms O'Bannon and the NCAA negotiate." That is "sure to present a complication" (SI.com, 11/9).
HISTORY IN THE MAKING? In N.Y., Greg Bishop writes former Nike, adidas and Reebok exec Sonny Vaccaro, who has been involved on the plaintiffs' side, "felt more optimistic than disappointed" about the ruling. It left O’Bannon and "about 20 current or former athletes, many of whom Vaccaro helped to join the case, without what they desired in the first place: compensation for their likenesses and images after their playing career ended." If their case "makes history, they are unlikely to profit from it." Vaccaro said, "Going forward is where the billions are. I want to live to see that day in court. I want to see that for Ed O’Bannon. The people he and those guys helped won’t even know they helped them. But change is coming" (N.Y. TIMES, 11/11).