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Old 07-22-09, 02:04 AM
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Class-action suit filed vs. NCAA over use of players'likenesses

Class-action suit filed vs. NCAA over use of players' likenesses
Updated 8h 36m ago
By Marlen Garcia, USA TODAY


Former UCLA basketball player Ed O'Bannon is the only named plaintiff thus far in a class-action antitrust lawsuit filed against the NCAA and Collegiate Licensing Company.
By Robert Hanashiro, USA TODAY

A class-action antitrust lawsuit on behalf of former college men's basketball and football players was filed at 4:30 p.m. ET Tuesday in U.S. District Court in San Francisco, seeking unspecified damages from the NCAA and Collegiate Licensing Company for the use of players' images and likenesses in video content, photographs and other memorabilia.

Ed O'Bannon, who starred on the UCLA basketball team that won the 1995 NCAA tournament, is the only named plaintiff thus far but lead attorney Michael Hausfeld said he expects the lawsuit will expand to include hundreds, if not thousands, of former Division I basketball and Football Bowl Subdivision players. Attorney Jon T. King confirmed the suit was filed.

"Essentially, the case seeks to correct a major imbalance between the NCAA, its institutions, former student-athletes and the commercial market," Hausfeld said.

NCAA spokesman Erik Christianson said in an e-mail the association will defer comment on the lawsuit since officials haven't had a chance to review it. "However," Christianson wrote, "the NCAA categorically denies any infringement on former or current student-athlete likeness rights."

This is the second class action lawsuit filed recently against the NCAA and Collegiate Licensing. Former Arizona State and Nebraska quarterback Sam Keller has a class action lawsuit pending against those groups as well as their video game partner, EA Sports, for unspecified damages for using player likenesses in video games. It's filed in the same San Francisco court as O'Bannon's class-action suit.

Former Rutgers quarterback Ryan Hart is suing EA Sports in a New Jersey court for using his likeness without permission.

EA Sports is named as a co-conspirator in O'Bannon's suit along with NCAA member schools and conferences. O'Bannon's suit wants the NCAA and Collegiate Licensing to provide accounting of the revenue generated by their commercial ventures. Additionally, the suit asks the court to create a constructive trust for players.

"We put in our time to become better student-athletes, and when you're done playing, you move on," O'Bannon, the 1995 national college player of the year, said in a telephone interview. "At the same time, once you leave your university, one would think your likeness belongs to you."

The suit claims the NCAA's conduct is "blatantly anticompetitive and exclusionary, as it wipes out in total the future ownership interests of former student-athletes in their own images — rights that all other members of society enjoy — even long after student-athletes have ceased attending a university."

Forms that athletes are required to sign when entering college, which allow the NCAA or third parties to use the athletes' name or picture to promote NCAA events, are a point of contention in the lawsuit. The suit alleges the consent forms deprive former student-athletes of earning rights and requests an injunction to force the NCAA to stop using them.

Commercial success

Commercialism is a touchy subject for the NCAA. The association, a non-profit, is dependent on commercial endeavors but critics argue that athletes are exploited and the definition of amateurism is distorted when players' images and their likenesses are marketed and sold in what has become a multi-billion dollar industry.

"College sport is a business and a free market system for everyone except the athletes," Richard Southall, director of the College Sport Research Institute at the University of North Carolina, said in an interview last week on the rights of past and present student-athletes. "I'm not criticizing it, but there's ample evidence of the commercial nature of college sport."

That commercial aspect increasingly is under scrutiny, coinciding with the rapid growth of digital technology that continually delivers new products. "Never in my wildest dreams did I think all this money would be generated based on what I did 15 years ago," O'Bannon said.

His lawsuit lists DVDs from UCLA's championship run in the '95 NCAA tournament that are on sale on the NCAA On Demand online store and promoted with references to O'Bannon's standout performances (he was named the Final Four's most outstanding player).

The suit also alleges O'Bannon's likeness is used in the EA Sports NCAA Basketball 09 Classic Teams video game. "Ask yourself a question," Hausfeld said. "How can the NCAA continue licensing the use of those images after a student-athlete (has left) a university?"

More and more, that question is being asked by former players, lawyers and scholars. "The notion that the NCAA can profit from selling likenesses in video games is silliness," said Smith College economics professor Andrew Zimbalist. "The NCAA and video game companies are treating the rest of us like we're 2-year-olds."

To compensate former players, O'Bannon's lawsuit suggests revenue sharing modeled after group licensing deals in professional sports. An alternative, the suit says, could be the creation of funds for health insurance, additional educational or vocational training or pension plans for former student-athletes.

Vaccaro's role

O'Bannon said he does not expect to receive large sums of money if he wins the case. After playing two years in the NBA and later overseas, he settled in Nevada and makes a comfortable living by working in sales and marketing for a car dealership.

"This isn't really about the money," he said. "This is about going after what's right. It's almost like, 'How dare they put us out there and not compensate us?'"

He said he had been bothered by the NCAA's recent business ventures that included his image and likeness but had not considered suing until he was approached by former shoe company executive Sonny Vaccaro and Vaccaro's wife and business partner, Pam.

"It's so cool the Vaccaros are behind this and really want to help us out," O'Bannon said. "They are pathfinders."

Vaccaro was once a controversial figure for commercializing youth basketball by outfitting scores of players in athletic apparel while searching for the next superstar to endorse the company for which he worked, whether it was Nike, Adidas or Reebok.

He now considers himself an advocate for players' rights and has been railing against the NCAA's strict parameters on amateurism that he says strips players of rightful earning power. In part through speeches he made on the university lecture circuit, Vaccaro said he got the attention of Hausfeld's high-powered Washington, D.C.-based firm. In legal circles, Hausfeld is a well-known antitrust lawyer on a global scale.

Attorney William Isaacson is co-counsel in the case and is from the prominent firm Boies, Schiller and Flexner, which represented former Vice President Al Gore against George W. Bush in 2000 when the Presidential election was too close to call and ultimately decided by the Supreme Court in favor of Bush.

Vaccaro is serving as an unpaid consultant in this case.

"Questions will finally be answered," Vaccaro said. "I need these people — the NCAA — to explain how they can rule over (athletes) and nobody questions them."

Depicting the act of swearing an oath in court, Vaccaro said: "They're going to have to put their left hand down and right hand up. They're going to have to answer to thousands of kids."

Class-action suit filed vs. NCAA over use of players' likenesses - USATODAY.com
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