Judge Ordered Settlement Talks Should Be NCAA Last Stand In Athlete Rights Cases

Mar 6 2014, 12:00am CST | by

null For decades the NCAA has faced lawsuits that could shake the NCAA at its core. Most contain allegations of antitrust law violations that if proven, could change the way the NCAA contracts with student athletes, suppliers, and most importantly, television networks that bring billions to the NCAA, without which the NCAA could not exist as we know it.

In each instance, settlement has been a friend to the NCAA. In each case, the cases settled without an admission of wrongdoing. The plaintiffs, often student athletes without the staying power to pay for expert legal counsel, received a proportioned sum of money that was a mere cost of doing business for the NCAA, a very affordable fraction of the billions it receives from TV rights.  

This time may be different. In the case involving the rights of former and current student athletes to retain their rights to their own likeness, the trial is set for June 9th – a mere three months from now. None of the other settled NCAA cases were financed this long.

Second, and related to the above, no other cases have received as many favorable rulings from not one, not two, but three federal court orders, dismissing the summary judgment motions of the NCAA.

Third, never before has the NCAA faced court-ordered settlement talks after having lost its co-defendants (EA Sports) who partnered with them to exploit those players likenesses through video manufacturing and distribution.

The conflation of these circumstances leaves the NCAA in unfamiliar territory. It is without the double-barreled bargaining power that comes with the likelihood of outspending the opposition and the precedent of prior legal opinions. The legal avalanche is that teenagers who sign NCAA documents do not have a clear statement within it that they are giving away their rights to their likeness to the NCAA for life, with no right to receive a penny made from their likeness during their playing days.  

What is cascading down on the NCAA in the upcoming months is the need to offer more money than ever before if it wants to receive a settlement without an admission of wrongdoing. The offer will also likely need to include more than money. It will need to include institutional changes that are also unprecedented – i.e. at least more clarity as to exactly what rights are reserved to the athletes.

In effect, these NCAA settlement discussions represent the precursor to and functionally the equivalent of collective bargaining between employer and employees. This subject may be confined to only the intellectual property rights at issue in the cases. But I suspect, like many settlements that have class action proportions and relief requests that go beyond money damages, there will be other institutional concessions the NCAA will have to make this close to trial.

Stay tuned. The settlement talks will not be televised. But based 0n the current state of affairs, the settlement talks between the NCAA and plaintiff athletes will be more dynamic than at any time in the modern history of college athletics.

Source: Forbes Business


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