O'Bannon Attorney: Deal Must Include NCAA Payment, Changes

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October 9, 2013 Wednesday
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O'Bannon attorney: Deal requires payment
Steve Berkowitz, @ByBerkowitz, USA TODAY Sports

One of the lead attorneys for the plaintiffs in a lawsuit against the NCAA concerning the use of college athletes' names and likenesses says he is willing to discuss a settlement but such a deal would have to involve the NCAA making both a payment to plaintiffs and changes to what athletes can receive for playing sports.

At this point, the NCAA says it is not prepared to provide either.

How long that might continue to be the case could depend on a variety of events, beginning with how U.S. District Judge Claudia Wilken rules on the NCAA's pending motion to dismiss the case and the plaintiffs' request for certification of the case as a class action. If the case is granted class-action status, thousands of former and current football and men's basketball players could join the case and the damages at stake could rise into billions of dollars.

The plaintiffs in this case and three others recently reached a proposed $40million settlement with video-game manufacturer Electronic Arts and the nation's leading collegiate trademark licensing firm, Collegiate Licensing Co. If approved by various courts, the deal would leave the NCAA as the lone defendant in a case whose named plaintiffs include former UCLA basketball player Ed O'Bannon and ex-Arizona State and Nebraska football player Sam Keller.

On Monday, The Chronicle of Higher Education first reported attorney Michael Hausfeld's willingness to talk about settling the case. Monday night, Hausfeld elaborated on those comments, telling USA TODAY Sports, "We're here anytime anyone wants to have a responsible conversation" but that "in order to resolve all legal aspects" a settlement would have to "address the monetary aspects and the restraint aspects."

The NCAA's chief legal officer, Donald Remy, said in a statement that the plaintiffs had not reached out to the NCAA about a possible settlement. A little less than two weeks ago, Remy told USA TODAY Sports the NCAA was "not prepared to compromise on the case."

Hausfeld's basic settlement parameters parallel the two forms of relief the plaintiffs seek in their complaint:

The surrender of "all ... profits resulting from the wrongful conduct" of the NCAA and the establishment of a trust fund from which former and current athletes can seek "restitution." Under antitrust law, this damages claim would be tripled. The plaintiffs also seek recovery of legal fees and expenses.

A permanent injunction against a wide range of NCAA rules, including those that basically prohibit athletes from receiving more than the tuition, mandatory fees, room, board and books now covered by an athletic scholarship.

"There are a lot of shortfalls in the present NCAA system's relationship of athletes to the association, schools and conferences," Hausfeld said. Any possible settlement "would address all of these shortfalls and suggest a balancing of that relationship." In addition to bringing scholarships closer to the actual cost of attending school, Hausfeld spoke about negotiating improved health insurance, better safety standards "and a voice, like athletes in other sports leagues, in the operation of the sport."

Division I schools are discussing cost of attendance. Health and safety matters also are involved in a concussions lawsuit against the NCAA that the association has signaled a willingness to settle.

Said Robert Carey, another attorney for the plaintiffs, "These things would be a godsend to players ... and they do not compromise the NCAA's principles of amateurism."

As for Hausfeld's insistence on a monetary payment from the NCAA, Warren Zola, who teaches sports law at Boston College's Carroll School of Management said, "There is no doubt in my mind that the overriding criteria (for the lawsuit) was meaningful reform ... but when plaintiffs' lawyers work on a claim, they are not paid in reform, they are paid in dollars. And if you are seeking a recognition of past harm to the economic rights of individuals, the only way to do that is to get money."

Zola said he was convinced there would be a settlement, but sports law icon Gary Roberts -- former dean of the Indiana University law school in Indianapolis -- said he did not foresee it happening soon. Roberts said if a settlement occurred before a ruling on class certification, for instance, it could make it unclear whom the NCAA is settling with. That could leave the NCAA to face a similar lawsuit and plaintiffs' lawyers emboldened by the prior settlement.

"It could be open season on the NCAA," said Roberts, who added he thought the plaintiffs' antitrust case was "very weak" but that there was "always the risk of a tipping point in the way courts look at the NCAA system."

If the case is granted a wide-ranging class-action status, "it would raise the price of a settlement significantly," Roberts said, but "knowing (NCAA President) Mark Emmert, I would be stunned if the NCAA is going to consider settling at this point. I think they'll want to see what the judge has to say."

October 9, 2013

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