Words of Others: Court Justice

Court Justice: The Inside Story of My Battle Against the NCAA by Ed O’Bannon and Michael McCann

 

 

 

In July 2009, Ed O’Bannon filed what would turn out to be a momentous federal lawsuit against the NCAA (National Collegiate Athletic Association) and, for the first time, I thought about what it meant to be a student-athlete in the US, and for all the glitz and glamour I had been blinded by all these years of watching college basketball and football, I was discovering that there was also a reality that looked uglier the longer and the deeper I looked at it. O’Bannon’s lawsuit focused on one specific aspect of the student-athlete experience but it opened the door to a level of scrutiny into NCAA practices that was long overdue. In the lawsuit, Ed O’Bannon, as the named plaintiff (other athletes, including NBA legends Oscar Robertson and Bill Russell, later joined in and added their names to the case), represented NCAA’s Division 1 football and men’s basketball players, and argued that former student-athletes should be entitled to financial compensation for the commercial use of their image by the NCAA. EA (Electronic Arts) the video game-maker was initially named as a defendant but they settled before trial. Contrary to what had largely been reported at the time, the lawsuit was not about paying players while they were still in college. That came later.

 

Suing the NCAA for something that impacts and will impact generations of players and former players looks like the epitome of the David and Goliath story, in which David’s only chance of winning is a miracle paired with an incredible belief in himself. That’s what this case appeared to be at first glance: a shot in the dark with very little chance of landing on target. In reality, though, it was a brilliant case backed up by critical evidence and testimony, and argued in court by excellent attorneys. Not only that, but Ed O’Bannon was the perfect David. He was an unimpeachable witness you could depend on to argue his position and the case both on the stand, testifying under oath, and in the media every time he was interviewed about it. He was not just the name on the lawsuit, he embodied it, and from the get-go, he acknowledged the problems that would arise from it for he and his family, and people associated with him. What made him the right person to take on Goliath were his impeccable resume on and off the court, his leadership skills, his lived experience as a star student-athlete, and how much he cared about the case.

 

It all started when Ed O’Bannon found himself staring at one of those very popular EA video games being played on a large flat screen TV at a friend’s house and seeing himself, or rather a digitally-created version of himself, playing a game in his UCLA uniform, long after he had himself hung up his sneakers for good. Cool, right? Who wouldn’t want to be a character millions of gamers around the world get to pick to make their unstoppable starting five? Most of us would. That is, unless you had no prior knowledge of it, had never been asked for permission to use your name and/or likeness, and had never been compensated at any point, in any form for the use of the said name and/or likeness. Doesn’t sound so cool any more, does it? And that’s where lies one of the biggest problems with the myth of amateurism claimed by the NCAA and the need for more fairness when it comes to the treatment of student-athletes. Everybody but student-athletes (and their families) makes money – a lot of it – in the current system, even though student-athletes are the product that allows the system to exist in the first place and generate the amount of revenue that it does. Ed O’Bannon won that lawsuit in 2014 (and again later on appeal). The ruling of the judge meant, in a nutshell, that the NCAA using players’ likenesses and not paying them for it was a violation of the federal antitrust law. A big win but by no means the end of anything. It actually marked the beginning of something huge: a fight for fairness.

 

When he first filed the lawsuit, much of the criticism against O’Bannon was that he was “in it for the money”. Although that was a fair point to make, it did not hold any water. A big proof of that is the series of risks (increased scrutiny into his life, loss of professional opportunities, threats to himself and his family, etc.) he took when he became the name on the lawsuit and the face of the movement, knowing that he would not make any money off of it. It was not about money and it still isn’t. It was always about fairness. O’Bannon’s love for the game and the institution that gave him his platform, to begin with, is precisely what gives him the right to criticize it the way he does. More than a right, telling the truth, his truth and that of so many others like him, feels like a duty. The duty didn’t stop at calling out the NCAA, it also involved researching and laying out potential solutions to the various issues raised. We should not be surprised to see some of these suggestions being slowly but surely implemented in some way in the years to come. If you pay close attention, you can feel the tide starting to turn.

 

Fairness, in this case, has to include the big elephant in the room: race. It was not just David and Goliath it was Black David versus white Goliath. The way the NCAA has been operating to this day, the rules and regulations it has been ruling by, have negatively impacted student-athletes of color, mainly Black, which cannot and should not be ignored. Institutional racism does not require individuals involved in it to be racist, it only requires these individuals to participate in a system that is at worst racist and at least discriminatory, whether by design or otherwise. Keep in mind that, in the lawsuit, Ed O’bannon represented Division 1 football and men’s basketball players, who are and have historically been overwhelmingly young men who look like him, and who are expected, even when they reach the superstar status of a Colin Kaepernick or the megastar status of a LeBron James, to just “shut up and dribble”. Think about the demographics of hockey and baseball, for instance, and ask yourselves why the rules of engagement in the NCAA are different for these sports versus basketball and football. Race is a big part of the equation but it makes so many people uncomfortable that it is way too often downplayed, if not completely erased from the narrative, when discussing fairness in sports. Where other works on the subject have failed to even acknowledge race as a factor, “Court Justice” dives in and does so with the necessary level of nuance such conversation calls for.

 

This book takes you behind the scenes of a crucial legal battle but is far from being what some would refer to as a typical legal book. Far from it. Michael McCann is the best when it comes to translating legal lingo and making complex concepts easy to digest and understand for lay people. Beyond the case, he and O’Bannon have written a story about a former player reflecting upon his days on the court and a man whose love for the game of basketball came second only to the love he has for his family. “Court Justice” is written in a style that keeps you interested and engaged from beginning to end, and leaves you wanting to know what is next. If you are anything like me, it also makes you want to join the fight.  

 

Ed O’Bannon is not often mentioned in the conversation about athletes’ activism, which is a shame, and it is probably because he stopped playing long before he bought his lawsuit forth, and ultimately won it, and he has consistently and purposely kept a low profile. This book is the perfect reminder of how big and how important his contribution to the unofficial “more than an athlete” movement that has seen more and more sports figures, both in college and in the pros, male and female, speak up about issues ranging from the rules of their respective game to gender equality, education and social justice.

 

Standing on that ladder on April 3rd, 1995, as he celebrated the NCAA’s men’s basketball championship title with his teammates, with a big smile on his face and his white hat worn backwards, Ed O’Bannon probably imagined that his legacy would be built on his achievements on the court. And it was. He didn’t know, however, that it would be cemented off the court, first with the federal case and now with this book.

 

 

Excerpts:

“So many NCAA policies – the high-level and the petty – always struck me the wrong way. College players, a disproportionate number of whom are Black, were denied certain living necessities and educational opportunities that were given to non-athletes. Meanwhile, these athletes sacrificed their bodies – and for football players, perhaps their brains, too – for the sake of the school. And it wasn’t like UCLA or its athletic officials were morally opposed to helping out the athletes. They just didn’t want to run afoul of the NCAA. It’s about getting just a tiny, tiny slice of a massive pool of NCAA money in proper return for your valuable, dedicated work on behalf of the school so that you can live the higher-educational life of a normal college student. So, I knew back then that if one day I had an opportunity to change the way college sports work, I’d do it. I couldn’t back down. The twenty-year-old Ed O’bannon would have been seriously disappointed in the thirty-six-year-old Ed O’bannon had he chosen the easy path and walked away from the righteous fight.”

“Let me put it this way: The athletes whose labor and likeness generate the vast majority of money from college sports are mostly Black. And colleges knowingly adopt rules to not pay those athletes. Don’t you think there’s something wrong here?”

“Amateurism has never been about academics, education, or learning. Amateurism is really about two things. First, it creates and imposes rules to ensure that the wealth generated by college sports is only shared among some and only shared in certain ways. And second, it supplies lawmakers, media, and fans with a work of fiction – the romanticized narrative of the college athlete as an innocent amateur uncorrupted by professional sports and its business partners. A lot of people want to believe in that fiction because it sounds like ‘Hoosiers’ or “Rudy’. Heck, I want to believe in it. But it isn’t true, at all.”

“The NCAA wasn’t about amateurism when it was founded and didn’t care about it until schools realized how much money they could earn from college athletes. In fact, the phrase student-athlete didn’t even come into existence until after World War II. And it was used by NCAA lawyers when they argued before judges and state industrial commissions that colleges shouldn’t have to pay workers’ compensation to seriously injured football players – you know the very players the NCAA was created to protect fifty years earlier!”

 

 

About the author: Ed O’Bannon led the UCLA men’s basketball team to the 1995 NCAA Basketball Championship. He received the NCAA Tournament’s Most Outstanding Player Award and won numerous other awards, including the John Wooden Award, which recognizes the best college basketball player in the country. O’Bannon was the ninth player selected in the 1995 NBA Draft and enjoyed a 10-year professional basketball career. After retiring from the game, O’Bannon entered the car dealership industry. In 2009, O’Bannon filed a federal lawsuit against the NCAA and Electronic Arts. In a landmark decision, which was upheld by the U.S. Court of Appeals, O’Bannon defeated the NCAA. O’Bannon received no compensation from the case. O’Bannon, who is from Los Angeles, now resides in Henderson, Nevada with his wife, Rosa. They have three children.

About the co-author: Michael McCann is Sports Illustrated‘s Legal Analyst and has authored more than 600 articles for SI. He is also a Professor of Law, with tenure, and Director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law. He is the Editor of the forthcoming Handbook of American Sports Law and has authored articles in the Yale Law Journal, Boston College Law Review and Harvard Journal of Sports and Entertainment among other top law reviews. He holds degrees from Harvard Law School, the University of Virginia School of Law, and Georgetown University. He resides in his hometown of Andover, Massachusetts with his wife, Kara.

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