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This is not the first suit of the summer over this issue to hit the NCAA. Earlier, Oklahoma quarterback Sam Keller sued the NCAA and EA Sports for using his likeness in EA Sports' NCAA Football video game.  Yet another suit is pending against EA Sports to which the NCAA has yet to be made a party.  While the Keller claim has merit, the O'Bannon suit poses the biggest problem for the NCAA.

The NCAA has traditionally relied on its defense of the amateurism of student athletes as the principal reason for not sharing revenue with them.  The athletes are attending school and participating in athletics is just another extracurricular activity - you know, like, oh, the dance marathon.  Plus, if the athletes are allowed to make money from their images, how will the NCAA police the extra benefits that may allow a SEC school from having boosters spend vast sums for football calendars while the rest of the football suffers from more reasonable prices. However, that justification, weak though it may be, does not fit athletes, like O'Bannon,  who are no longer in school.  

All student athletes are required to sign a release form as a condition of participation.  The release waives all rights in perpetuity to any revenue from the commercial exploitation of their names, likenesses or  images. To say that the release has been coerced would be like saying that Miranda was never read his rights.  In addition to the coercive factor, the students do not have access to lawyers, are young - many under 18 - and many come from underpriveleged backgrounds and not at all used to dealing with forms like that one.  Also, remember that the NCAA has already lost one case on the rights of a student athlete to be represented by a lawyer. Admittedly, it was a District Court case and not binding on another District, but it still carries persuasive weight.

The stakes are enormous.  If the NCAA loses, the potential damages could run into the hundreds of millions of dollars, especially since damages are trebled under antitrust law.  In addition, the way colleges deal with athletes would be forever changed as the athletes right to a a lawyer would have to be observed.  All things considered, if I were the NCAA, I would be calling O'Bannon's lawyers to see how much it would take to, and how fast, get this thing settled.  Thanks to the participation of Sonny Vacaro, the former shoe company rep who now has made taking on the NCAA his life's mission, O'Bannon has a high powered legal team that includes David Boies, one of the lawyers who represented Al Gore in the legal battle with George Bush.  Given these circumstances, I don't think the settlement will come cheap.

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