District Judge Claudia Wilken ruled Friday that the plaintiffs suing the NCAA and video game manufacturers for violating antitrust law by using players’ names and likenesses without their permission can amend their complaint to add a current college athlete to it. That’s a step Wilken hinted was necessary for the plaintiffs, led by former UCLA basketball player Ed O’Bannon, to seek damages on behalf of current players should the case proceed as a class action, a determination Wilken will likely make later this month.
But Wilken also mandated that the player be named, a step that could have major ramifications for the career of a current college athlete who decides to join it.
Wilken asked the plaintiffs attorneys in June why they hadn’t added a current athlete to sue alongside O’Bannon and the other former athletes, and should they find one now, it would address a major question mark Wilken raised with the case. Finding a current player won’t guarantee class certification, but it will make it more likely. And class certification is imperative to the case’s success, since players would otherwise have to file individual lawsuits against the NCAA. Wilken gave the plaintiffs two weeks to find a current player — and they insist that they have at least one waiting in the wings.
What they want, though, is either anonymity for that player as the case proceeds in court or a guarantee that he won’t face retribution from the NCAA or his school. “We expressed concern during the hearing that a current student-athlete might face retaliation, intimidation, coercion,” Michael Hausfeld, the lead attorney for the plaintiffs, said. “We want to eliminate that.”
NCAA officials have already made their feelings about the case clear. Athletic directors have warned that the case could end college sports and major conference commissioners have threatened to move their schools to Division III should the plaintiffs win. The case is the most substantial legal challenge yet to the NCAA’s gold-plated business model that generates billions of dollars in revenues but leaves players out of the system, and emails between officials at the biggest schools have made it clear that they are concerned about how much damage to the status quo the case could ultimately cause.
Mix that with the fact that the current player who is added to the suit will ideally be prominent — a starter, and maybe even a star, at a major school in a major conference, to maximize the potential damage done by exploiting his image, name, and likeness — and the potential for retribution is high. That’s the major fear of the plaintiffs attorneys, and it’s warranted. Going public a short time before the beginning of football or basketball season will have broad effects not just on the player but on his team — it will create a swarm of media attention that could earn him the dreaded “distraction” label, potentially bringing him disdain from fans and fellow players. Remember, Curt Flood didn’t have the support of many of his fellow players when he took Major League Baseball to court over the reserve clause, which restricted player movement and salaries, four decades ago. Worse, the attention and the potential for disruption could cause even more problems with coaches, administrators, or the NCAA. Any of that could be enough to derail the player’s career both in college and beyond.
That fear of retribution has kept athletes from taking action against the NCAA before. It has halted potential player protests at the Final Four and other events. For a player with professional hopes, even one who feels exploited by the system, rocking the boat and causing problems can create more problems than sitting down and shutting up.
“If you’re an athlete, you’re saying, ‘I’m only going to be here for four years,’” ESPN analyst and former college basketball player Jay Bilas told me in January. “These are issues that have lasted for almost 100 years. It’s going to take an athlete with a lot of foresight and a lot of guts and a long view beyond themselves to do that.”
Because that’s the case, the court needs to do its best to ensure that the player or players who step forward won’t face the heavy hand of the NCAA simply for doing so, whether through anonymity or a written guarantee from the NCAA and the school for which the athlete plays. That may not lead to a victory for the plaintiffs, but it will allow current players to stand up and have their case against the NCAA heard in a way they never have before. That’s a chance they deserve.