Change in compensation sought

Updated: September 2, 2012, 8:36 AM ET
By Tom Farrey | ESPN.com

In a surprising move that, if successful, could lead to much greater financial rewards for many college athletes, lawyers representing former college football and men's basketball players told a federal court that they now seek to change the way current athletes are compensated for the use of their images.

In filing to have their lawsuit against the NCAA certified as a class action, the attorneys argued that monies derived from television, video games and other products that use athletes' names, images and likeness should be shared with players -- and can be "temporarily held in trust for those individuals until cessation of their collegiate careers" if the NCAA feels it needs to abide its notions of amateur sports.

No monetary figures are disclosed in the public copy of the motion, filed Friday night in U.S. District Court in California. Heavy redactions of information were made by the plaintiffs. But a source close to the lawsuit -- filed in 2009 with Ed O'Bannon and other former athletes -- told ESPN that the new angle could deliver "hundreds of thousands" of dollars each year to Division I basketball players.

Football players, who are more plentiful, could get less -- "tens of thousands," according to the source.

The attorneys argued that monies derived from television, video games and other products that use athletes' names, images and likeness should be shared with players -- and can be "temporarily held in trust for those individuals until cessation of their collegiate careers" if the NCAA feels it needs to abide its notions of amateur sports.

"I'm sure the NCAA will go ballistic over this," another source, a member of the plaintiffs' legal team, told ESPN. "This is their worst nightmare, this issue coming front and center this deep into the case."

Asked why make a case for current players now, the source said, "Now we have evidence. And so much more has happened since we originally filed our lawsuit -- new media deals, new scandals."

In a statement, the NCAA's chief counsel on Saturday characterized the new angle as evidence that the lawsuit lacks merit.

"Unable to prove their original claims regarding former student-athletes, plaintiffs have now abandoned those claims and are attempting to assert new claims on behalf of current student-athletes," said Donald Remy, NCAA executive vice president and general counsel. "Unfortunately, this about face runs them smack into a very old argument, and one that the NCAA has defeated in court many times. ... Plaintiffs want the court to believe that student athletes are the same as professional athletes and unionized employees -- which is pure fiction. We are confident that plaintiffs will find no more success in this case than they have in past cases."

Lawyers for the plaintiffs have been gathering financial information about the NCAA, conferences and individual athletic departments. In their recent filing, they propose that players share in revenues produced from their names, images and likenesses much in the manner of those in the NFL and NBA.

Using an analysis by Stanford professor Roger Noll, the lawyers suggest a "50-50 split for telecasts and a one-third split for video games, based on recognized economic principles, examples from professional sports, and examples from music artists' licensing." They also propose "equal allocations among all members of a team in a given year, and these team members are then further divided according to whether they were current or former players at the time that the revenue was generated."

The filing quotes from depositions by, among others, NCAA president Mark Emmert, although his quotes are blacked out in the copy submitted to the court. The legal team member for the plaintiffs who spoke to ESPN said it was initially redacted because the deposition was stamped "confidential" by the NCAA.

Another figure cited in the filing was Walter Byers, the NCAA's first executive director. He ran the organization from 1951 to 1988, and since retiring has rarely surfaced, living on his ranch in Kansas. But he agreed to be deposed in the lawsuit, a coup for the plaintiffs, as Byers wrote a book after he left the NCAA that repudiated the amateur model as a means of diverting money away from players.

Other defendants include the video-games-maker Electronic Arts and the nation's largest college trademark licensing and marketing firm, Collegiate Licensing Co. Besides O'Bannon, who starred at UCLA, plaintiffs include Oscar Robertson, Bill Russell, former UConn star Tate George and many others.

The players claim the NCAA broke anti-trust law by working together to prevent athletes from negotiating for or receiving any benefit from licensing agreements that used their names, images or likenesses.

The lawsuit says the NCAA allowed EA to make video games with "the purpose of having the game avatars match as closely as possible the real-life characteristics" of actual athletes.

As a condition of NCAA participation, athletes are required to sign forms that relinquish all rights pertaining to the use of their names and images, whether in TV contracts, jersey sales, video games or otherwise. O'Bannon and other former players object to the NCAA and member schools continuing to sell archival materials without compensation well after they stopped playing college sports.

Remy, in his statement, said the NCAA does not "make any attempt to prevent former student-athletes from selling or licensing their 'collegiate likeness,' nor has it ever done so."

The NCAA's embrace of amateurism as a principle dates back nearly a century. But the aggressive pursuit of ballooning television and other revenues has placed considerable tension on the model, as have ethical scandals at colleges such as Penn State, USC, Ohio State and Miami. At the same time, NCAA member schools have been reluctant to share more of their revenue with athletes.

The team of plaintiffs' lawyers is led by Michael Hausfeld, a prominent Washington, D.C.,-based litigator who specializes in class-action lawsuits related to human rights, discrimination and anti-trust law.

Tom Farrey | email

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