The current and former athletes who claim in a lawsuit the NCAA is violating antitrust laws by not compensating players, even as the organization sells television game rights and player likenesses in other products, will not pursue monetary damages as part of the suit.
In a court filing that was first reported by USA Today, lawyers for former UCLA basketball star Ed O'Bannon and other players informed the court of their decision and also sought to have the judge in the lawsuit rule on the case rather than a jury.
The plaintiffs' lead attorney, Michael Hausfeld, told ESPN that forgoing the effort to seek damages for the individuals who are named in the lawsuit streamlines the case, making it all about stopping the NCAA from continuing to prevent athletes from sharing in the media revenues they help generate.
"It simplifies the case," Hausfeld said. "There will be fewer sidebars and objections to evidence, and it should reduce the number of witnesses who need to testify. In short, the plaintiffs did not want to lose focus on the fact that their priority was to cause change to the system and structure of college sports."
The filing by the plaintiffs aims to focus all of the attention on whether the NCAA's economic model should be changed. It's an attempt to avoid the messiness of sorting out who may have been harmed for past wrongs, and to what degree. For the plaintiffs, avoiding a jury trial also keeps the issue squarely in the domain of U.S. District Judge Claudia Wilken, who is steeped in the issues and has presided over the case for five years.
The court case is slated to begin on June 9, but the NCAA has filed multiple motions seeking a delay. This week, Wilken ruled against the NCAA in a motion that questioned her earlier decision on what the NCAA can use as a defense in a case that has the potential to drastically alter the way college sports are regulated. Three other motions are pending before Wilken's court in Oakland, Calif.
The NCAA objected to the new move by Hausfeld to drop the damages claim. The association's lawyers wrote Wednesday night that they were "surprised and troubled by the Plaintiffs' last minute and abrupt decision to attempt to avoid having a jury decide" the case, calling it a "last ditch effort to change course in this litigation.
"The NCAA reserves all rights to seek the appropriate relief in response to the Plaintiffs' last-minute attempt to change the nature of the trial in this case. Further, in the event the case goes forward as a bench trial, the NCAA reserves all rights to revisit and revise all stipulations, pretrial filings, and submissions that were made today in anticipation of a jury trial."
Hausfeld dismissed the NCAA's argument.
"There's always been a damages claim and an injunctive claim," he said. "If they haven't been paying attention to the injunctive claim, it's inexplicable."
Hausfeld acknowledged that he needs the consent of each of the named plaintiffs to move ahead with dropping the damages claim for all of them. He said he had spoken to each of the named plaintiffs in the lawsuit except two, and gotten the consent from each, including O'Bannon, the former UCLA forward.
One of those he had not reached was Oscar Robertson, the former University of Cincinnati star and Basketball Hall of Fame member. When contacted by ESPN on Thursday, Robertson said he was unaware of the dropping of the damages claim. "Who decided that?" he said. "You're the first to tell me about that."
Robertson declined to comment on whether he agreed with the decision until he had a chance to speak with Hausfeld. Hausfeld said he plans to speak with Robertson but had to file the motion before midnight Wednesday due to a deadline set by the judge, who scheduled a conference call for Thursday to discuss issues and motions related to the case.
Should the players win or settle the O'Bannon case, Hausfeld expects their share of the potentially billions of dollars in revenues will flow into a new, not-for-profit entity called the Former College Athletes Association. The FCAA has selected Nashville-based SESAC, one of the nation's largest performers-rights companies, to register the athletes and distribute funds based on formulas that will be created by the FCAA, ESPN learned Thursday. The SESAC has represented artists ranging from Bob Dylan to Neil Diamond, according to its website.
"They have agreed to act as the claims administrators," said Kenneth Feinberg, an FCAA board member. "As athletes sign up, someone's got to calculate and distribute the funds and be responsible for the day-to-day operations."
Feinberg has overseen the distribution of victim funds in a number of well-known cases, from the Sept. 11 terrorist attacks to the BP Deepwater Horizon disaster to the Penn State/Jerry Sandusky sex abuse case. Fellow FCAA board members include Sonny Vaccaro, the longtime critic of NCAA policies toward athletes and an advisor to Hausfeld; and Ramogi Huma, the president of the National College Athletes Players Association, who recently helped get football players at Northwestern declared employees by a regional director of the National Labor Relations Board. None are paid, Feinberg said.
Feinberg said the FCAA plans to add two or three board members, including a former female athlete. Unlike the O'Bannon case, which is focused on the football and basketball players at the largest NCAA programs, the FCAA will represent all former athletes in all sports who want to sign up, from Division I to Division III, women's as well as men's sports, he said.
Hausfeld set up the FCAA last year and remains in contact with Feinberg, but Hausfeld is not a board member. He said he is neither paid by the organization nor will receive any money from players who might end up winning money in the case. His law firm would be eligible to represent the FCAA when the board hires outside counsel.
To determine how much money players might receive, Feinberg said, the FCAA will consider a variety of factors, including the conference in which an athlete played and how central the sport is to the media, licensing, ticket and apparel revenues that were produced while they were college athletes.
"There's a difference between football and basketball, and fencing and field hockey," he said. "The formulas have to reflect the relationship between the role of the athletes and the revenues generated."
He said he understands how difficult that might be.
Other details Feinberg revealed about the FCAA: Current athletes will not be eligible to join the FCAA, and no athlete would be forced to sign up with the FCAA. An athlete could join only after his or her playing days, although payments made to them would be based on formulas that account for the money generated while they were athletes. He said that unlike the unionization effort at Northwestern, the FCAA does not propose to change the status of athletes while they are still on campus, but instead put the money due to them aside for later collection.
"I don't think this will have an adverse impact on college sports," Feinberg said. "This is about college athletes who have left college and are now in the marketplace."
The media revenues they receive would come from the NCAA's cut of those contracts, he said. Though the O'Bannon lawsuit targets the NCAA, Hausfeld said that money from conferences would also be in play with any settlement or verdict against the NCAA in the O'Bannon lawsuit.
"If the court grants the injunction, then not only the NCAA would be enjoined from enforcing the restrictions but so would all other entities which abide by the restraints, including the conferences," he said. "The reason the conferences claim they cannot respond to legitimate market forces is because they're constrained in doing so by NCAA rules. [NCAA president Mark] Emmert has said that we, the association and any of its members, including conferences and institutions, will never pay the athletes, and neither will anyone else. That is an expression of ownership and control that has long been outdated and thoroughly discredited."
Reporter Tom Farrey of ESPN's Enterprise/Investigative Unit contributed to this report.