As O’Bannon lawsuit moves forward, there’s a new power player in college sports

For rest of the summer, the most important person involved with college athletics isn’t Nick Saban or Rick Pitino or even NCAA President Mark Emmert.

It’s Judge Claudia Wilken of the Federal District Court for the Northern District of California. Yesterday, Judge Wilken heard arguments from both sides in the matter of In Re NCAA Student-Athlete Name & Likeness Licensing Litigation, the result of which could radically alter the college sports landscape. And although the two most frightening words in college sports today are Jadeveon and Clowney, by the end of the summer two new words might strike terror into the hearts of those who profit from the $10 billion-plus college sports industry: Class certification.

The lawsuit, which is a combination of cases brought by former athletes like ex-UCLA forward Ed O’Bannon and ex-Arizona State/Nebraska quarterback Sam Keller among others, has been in the news for four years. The plaintiffs originally sought to provide monetary compensation to former NCAA student-athletes who were forced to sign away their publicity rights in order to play college sports only to watch the NCAA and its conferences make millions in licensing fees with video game makers and media broadcasters. However, as the number of former college-athlete plaintiffs grew, the individual claims were combined into a class action lawsuit.

But before a class action lawsuit can commence a judge must certify the class. There are many factors for the judge to consider, but generally she must decide whether the group of people suing is big enough and consists of similar enough individual plaintiffs that proceeding as a class action will better serve justice than the filing of many individual claims. Typically, if a group of plaintiffs can convince a judge to certify them as a class, the defendant will settle as soon as possible to avoid the potentially huge damages that are often awarded by juries at trial.

The former NCAA athletes want Judge Wilken to approve their class certification, but the biggest threat to the status quo in college athletics isn’t the former athletes themselves -- it’s that O’Bannon and Keller want Judge Wilken to include current NCAA athletes in the class.

A certified class of only former NCAA athletes would mean damages based on former agreements between the NCAA, its conferences and licensees like broadcasters and game-makers. The addition of current student-athletes means the addition of current money and current agreements. Agreements like the SEC’s new partnership with ESPN or the Pac-12's cross-network deal worth nearly 3 billion dollars over 12 years.

Judge Wilken has three options:

1) If she refuses to certify a class at all, then current and former NCAA athletes would have to bring individual lawsuits if they wished to continue. Lawsuits are not cheap, and this would be a significant win for the status quo.

2) If Judge Wilken chooses to partially certify the class so as only to consist of former NCAA athletes, then the NCAA and other defendants will likely settle the case quickly and take a hit, though not a fatal one, to their substantial warchests.

3) If Judge Wilken certifies a class of former and current NCAA student-athletes to go forward with the lawsuit, watch out because that’s when thing could go any number of directions. A full certification ruling could give all student athletes a shot at the hundreds of millions of dollars their sports generate.

A decision on class certification is expected to come sometime near the end of the summer, but don’t expect massive changes to intercollegiate athletics anytime soon. Even if Judge Wilken strikes a blow against the NCAA and certifies a class including current student-athletes, the actual trial isn’t scheduled to begin until July 2014 and multi-billion dollar industries don’t go down with a fight. If real change is to come to the NCAA, it is going to take years of more litigation and appeals before you see it.

Still, by the time the fall academic semester starts, student-athletes across the nation might find themselves in a different kind of class, and it could end up being far more lucrative than going pro in something other than sports.
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