6 current players join NCAA lawsuit

Updated: July 22, 2013, 12:56 PM ET
By Tom Farrey | Outside the Lines

Led by a pair of Arizona Wildcats, six current college football players from major programs joined a federal antitrust lawsuit against the NCAA on Thursday, significantly raising the stakes in a court battle that challenges the economic model of big-time college sports.

The players are Arizona linebacker Jake Fischer and kicker Jake Smith, Vanderbilt linebacker Chase Garnham, Clemson cornerback Darius Robinson, and Minnesota tight end Moses Alipate and wide receiver Victor Keise.

By adding their names to a highly contentious lawsuit originally filed in 2009 by former UCLA basketball player Ed O'Bannon, the players -- all from college football's largest conferences -- enhance the chances that damages in the suit could reach into the billions of dollars.

The O'Bannon complaint alleges the NCAA, EA Sports and Collegiate Licensing Co., the nation's leading trademark and licensing firm, violated antitrust laws.

It accuses the NCAA of fixing at zero the amount that players can receive from video games and other products that use players' names, likenesses and images. Last year, the plaintiffs amended their lawsuit, asking that current players be included and arguing that players deserve a share of the billions of dollars in television revenues that flow to the NCAA, conferences and member schools.

In June, Judge Claudia Wilken asked plaintiffs in the O'Bannon suit to add a current player to the lawsuit, setting up Thursday's court filing. Later this summer, she will rule on whether the class of current and former players will be certified, allowing it to pursue its claims as a group instead of as individuals.

Fischer, who led the Wildcats with 119 tackles last season, told "Outside the Lines" that he joined the lawsuit not because of money but to give players a voice on issues of long-term health and access to a quality education. Like Smith, Fischer suffered an ACL injury playing college football that has healed enough to play again but likely will affect him after he leaves college, with no guarantee of medical care.

"Honestly, I stepped forward for the future well-being, safety and health of student-athletes," Fischer said. "We have both met a ton of people since we've been here who have lingering effects from injuries, not getting a great education, not having all the capabilities or the opportunities that a regular student would have, and honestly, we would just like to try to fix that."

Fischer and Smith said they informed Arizona coach Rich Rodriguez and athletic director Greg Byrne this week that they planned to take part in the lawsuit.

"For me, it's about the money and the fact that the revenue that's generated is so vast, and the players are essentially the people that drive the engine that is the NCAA," Smith said. "If we didn't exist, there would be no University of Arizona football team. There would be no Alabama Crimson Tide football team. There would be no Florida Gator football team. There would be no Texas A&M football team. Yes, we are a part of the program. I love Arizona, and I love my coach, our athletic directors, everybody that's a part of this program are great.

If we didn't exist, there would be no University of Arizona football team. There would be no Alabama Crimson Tide football team. There would be no Florida Gator football team. There would be no Texas A&M football team. ...
Without us, there is no they.

-- Arizona kicker Jake Smith

"However, without us, there is no they, if that makes sense."

Fischer is on the preseason watch list for the Bednarik Award, given to the top defensive player in college football.

Smith is a walk-on who missed last season with a knee injury and is competing for a starting job this season.

"These athletes are incredibly brave. They are well-aware of the risks of standing up to the NCAA, and yet they felt that this was the right thing to do," Michael Hausfeld, the lead attorney for the plaintiffs, said in a statement.

On Friday, the NCAA issued a statement in response to the amended complaint with some of its strongest language yet on what it contends will come of college sports if the players prevail.

"College sports today are valued by the student-athletes who compete and all of us who support them," Donald Remy, NCAA executive vice president and chief legal officer, said in a statement. "However, the lawyers in the likeness case now want to make this about professionalizing a few current student-athletes at the detriment of all others. Their scheme to pay a small number of student-athletes threatens college sports as we know it.

"In particular, we would lose the very opportunity for the 99 percent of NCAA male and female student-athletes who do not compete in Division I men's basketball or FBS football to play a sport and get an education as they do today."

NCAA spokesman Bob Williams later said the above statement included an incorrect number. The percentage of athletes who are not Div. I basketball or FBS football players is "at least 96 percent," not 99 percent, Williams said.

Hausfeld, meanwhile, said Remy's statement lacks credibility and pointed to a recent analysis by a group of academics that concluded allowing athletes to share more in revenues would not disrupt the financial condition of athletic programs.

"It's nonsense," he said. "There's no support for that fear tactic. The Drake Group study shows there is more than enough money to maintain university athletic programs."

Rodriguez told "Outside the Lines" that he supports his players having a voice in the issue and that more should be done for players financially.

"Jake and Jake came to my house the other day and talked to me about the case and their involvement," he said. "They're two conscientious guys, and they're both really appreciative of playing college ball. It's not like they're disenchanted with the system. They love being student-athletes. But with the likeness issue, they wanted to see if they could have a voice for college athletes, and I said I support that.

"I know there's concerns about where this lawsuit will lead. And we need to keep it as amateur status. We already have a pro league; it's the NFL. Let's not make college a minor league. I just think we can do a few things, get a couple thousand more [dollars a year] to help out the players."

Ramogi Huma, president of the National College Players Association, said he was surprised and pleased that Rodriguez and Byrne supported the players' desire to advocate for their peers.

"The fact that the athletic department is behind them is huge," Huma said. "[Coaches and ADs] are the people who arguably benefit the most from the system, and yet they see an injustice and feel it's OK for players to challenge that system. They're standing up for what's right, not what benefits them, which means a lot because I'm sure it took a lot of courage for those players to stand up."

Said Fischer: "I'm not surprised at all. [Rodriguez] has his players' back, and that's why we love playing for him."

Wildcats players have a recent history of activism. Huma said Arizona was one of five schools where athletes signed a NCPA-led petition in 2011 to use new television monies to enhance player benefits. The petition called for rules that would force schools to cover medical bills related to injuries and prohibit them from not renewing the scholarships of players who were permanently injured, he said. It also requested an educational trust fund to give incentive to players to graduate and that they could tap into after their eligibility had expired.

The University of Arizona has been sympathetic to athlete issues. Byrne was among those who supported an NCAA proposal to give schools the option of giving players a $2,000 stipend that would help close the gap between a full athletic scholarship and the cost of attendance for students. Schools in major conferences were in favor of the rule change, but smaller institutions pushed back and held sway.

"We are aware that Jake Smith and Jake Fischer are now plaintiffs in the lawsuit," Byrne said in a statement. "While we do not support the lawsuit, we support their right to be involved and express their opinion. They are two fine young men, and we are glad they are part of our program and university."

Garnham led Vanderbilt with seven sacks and 12.5 tackles for loss last season.

Robinson has started six games in each of the past two seasons for the Tigers, though his season was cut short last year by an ankle injury in October.

Keise played 14 games over three seasons for the Gophers. Alipate has not played at Minnesota in four seasons, including a redshirt year.

Ellen Staurowsky, a professor of sports management at Drexel University and a leading academic on issues related to college sports, compared the players to Curt Flood, a player who laid the groundwork for the free-agency era in Major League Baseball by challenging its reserve clause.

"At core, the decision of six current football players from major college programs around the country to become named plaintiffs in the O'Bannon v. NCAA case carries on the legacy of Flood by challenging a system of inequality that does not fairly compensate revenue-producing athletes for their contributions to a multibillion-dollar industry, risking their health and welfare in the process," she said. "This is a significant moment in the history of college sport in the U.S."

Beyond adding the six current players, the amended complaint filed by lawyers sharpened and consolidated some of the allegations they had made in previous filings. Among those is the claim that late NCAA president Myles Brand ignored internal concerns about violations of the player rights in the creation of video games by EA Sports.

"Numerous NCAA employees -- including those that were technically in charge of approving EA's video games -- knew that the video games were depicting real [student-athletes] but were overruled by Brand," the complaint reads.

If certified as a class-action, thousands of current and former athletes will enter the lawsuit unless they opt out. Such a ruling would be a significant legal victory for the players and place pressure on the NCAA to settle the lawsuit as a means to avoid potentially huge damages tied to television revenues, which account for more than 90 percent of the money at stake in the dispute. The plaintiffs now demand that the NCAA finds a way to give players a cut of the billions of dollars earned from live broadcasts and memorabilia sales, along with video games.

The move to add current student-athletes to the suit comes a day after the NCAA announced that it would no longer allow EA to use its name and logo in video games.

Hausfeld called the NCAA's decision to break ties with EA "petty and arrogant."

"It's admission of a practice that goes to the heart of the contention that the NCAA believes it is above the law," he said late Wednesday.

NCAA spokeswoman Stacey Osburn responded that the NCAA's business relationship with EA pertained to the logo and name only.

"Student-athletes were never a part of this relationship, and plaintiffs' attorneys know it," she said in a statement. "Further, the $545,000 paid annually to the NCAA for the use of the logo and name goes right back to support student-athletes across all three divisions."

Huma said recent developments make him wonder how long NCAA member schools will support the NCAA's approach to football and basketball athletes. On Wednesday, SEC commissioner Mike Slive, another proponent of optional stipends for athletes, called for a re-examination of the NCAA's governance to better meet the needs of major programs.

"With all the dissension among conference commissioners and schools unhappy with the NCAA and the stakes so high, are the schools going to trust the NCAA to make the right call in terms of how far they're going to go in defending this lawsuit?" he said. "Are they going to gamble and take this to trial? Or are the schools going to want to have a voice in crafting a settlement that they can live with?"

Information from The Associated Press was used in this report.

Tom Farrey | email

Writer, Reporter

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