If the NCAA Loses in Court, the Big Question Is: So What?

How much harm might the NCAA face if Ed O’Bannon and a potential class of thousands of college athletes were to prevail in their federal antitrust case?

I put that question to a half-dozen legal scholars while reporting on the former UCLA player’s complaint over the past few days, and I found a mixed response. Although several predicted potentially dire consequences for the association, including one who said it could “threaten the entire NCAA business model,” others were far less certain of any negative effect.

There hasn’t been much gray area in the hundreds of articles on the case, which is set to go before a federal judge in California on Thursday for consideration of class-action status. The plaintiffs, who argue that they have a right to millions of dollars in revenue from the sale of video games and other commercial products, could have the potential to win damages into the billions, some legal experts say, assuming the class is certified.

One person close to Mr. O’Bannon predicted that the grievance could lead to the “case of the century” in sports. Others have described it as a meteor or an asteroid with the potential to not only blow up the NCAA’s amateur model but, as one analyst asserted, put an end to college sports.

“If it stays on course,” wrote Jonathan Mahler, a sports columnist for Bloomberg View, “it’s going to hit with biblical force, reducing the National Collegiate Athletic Association to a heap of rubble.”

In the article I wrote for The Chronicle, I included the comments of two lawyers who expressed doubts about those sorts of grand assertions.

Matt Mitten, a professor of law at Marquette University and director of its National Sports Law Institute, could see the court certifying a class of former athletes. But he doesn’t think it would be appropriate to combine both former and current athletes into the same class because the legal issues are different.

Gary R. Roberts, dean of Indiana University’s Robert H. McKinney School of Law, went further, describing some of the predictions as a “preposterous stretch of the intellectual-property laws.”

“I don’t see why, if the NCAA is infringing on former players’ publicity rights in the production of video games, that would lead to a remedy of current players receiving TV rights,” he said. “There are people who want that to happen so much that they’ve convinced themselves it’s right. But I don’t think there’s any court that will jump that legal chasm.”

Other legal scholars, whose voices didn’t make it in my article, agreed.

“Maybe in five years O’Bannon will cause the entire NCAA infrastructure to come unglued, but I doubt it,” said Gene Marsh, a retired professor of law at the University of Alabama at Tuscaloosa who represents colleges in NCAA disputes. “The thing about sports litigation—and particularly anything related to the NCAA—is that you get this wave of wishful thinking and emotion, and then someone comes along and actually applies the law, and that takes the air out of the balloon.”

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