Student-Athletes as Change Agents

Ed O’Bannon Vs. Ncaa

Ed O’Bannon was a University of California, Los Angeles (UCLA) basketball standout on the 1995 national championship winning team. After seeing his likeness on a video game, O’Bannon filed a lawsuit against the NCAA, Electronic Arts (EA) Sports, and the Collegiate Licensing Company (CLC) for use of his name, image, and likeness without his consent. Other former men’s basketball players and football players joined the suit to challenge the NCAA provision prohibiting compensation for use of name, image, and likeness (NIL).

In 2010, the United States District Court Judge Claudia Wilken denied the NCAA’s motion to dismiss the case. The following year, Judge Wilken dismissed EA Sports from the lawsuit. However, with further investigation, EA Sports provided evidence for the plaintiff. In July 2003, NCAA Director of Corporate Alliances Peter Davis stated that “we don’t actually use player names but we do use all the attributes and jersey numbers of the players” (Solomon, 2014). EA Sports showed that NCAA officials knew that EA Sports made video games to match characteristics of the avatars. Furthermore, EA Sports admitted that the NCAA approved the games “insofar as they have university rosters with uniform numbers, positions, etc.” (Solomon, 2014).

The plaintiffs changed the course of their suit in August 2012. They no longer sought damages for former players. Instead, they sought compensation to current and future players with regards to video games and live television money. Television media rights were also disclosed. “The O’Bannon lawsuit reveals the terms of the Pac-12’s media rights fees from ESPN and Fox. The Pac-12 received a $30 million signing bonus in 2012 and $185 million in fees in 2013, with the fees increasing 5.1% annually until peaking at $321.3 million in 2024” (Solomon, 2014).

To certify the class action suit with the intent to compensate current student-athletes, the plaintiffs needed to add active student-athletes. In 2013, six active football players joined the suit and the class action was certified. Soon after, EA Sports and the CLC announced they would make a $40 million settlement to the video game plaintiffs. Attorney’s fees equaled 33% of the settlement. O’Bannon received $15,000 from this settlement.

In November 2013, the court allowed the O’Bannon plaintiffs to challenge the NCAA’s current amateurism rules and policies. However, it did not allow plaintiffs to sue for damages in past broadcast appearances. Both the NCAA and the O’Bannon plaintiffs asked the judge for a summary motion. Both were denied. In May 2014, the plaintiffs decided not to file for individual damages. Instead, they focused on issues of antitrust.

On August 8, 2014, the U.S. District Court for the Northern District of California issued its decision. The court found that the NCAA made student-athletes forfeit their NIL, which violated antitrust law. The court argued that there were less restrictive alternatives to maintain a competitive playing field. Judge Wilken ruled that schools were not required but could pay men’s basketball and football players up to $5,000 per year. She also suggested that schools increase their athletic scholarships to meet the federal cost of attendance. “The district court in O’Bannon made clear its ruling did not endorse paying players to play FBS and Division I Basketball but limited student-athletes compensation to share of revenues from use of the NIL to go along with what is already received in grants-in-aid” (Lodge, 2016, p. 783).