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As testimony starts in former college star's suit, NCAA settles another suit

By Sara Ganim, CNN Investigations
updated 11:38 PM EDT, Mon June 9, 2014
STORY HIGHLIGHTS
  • NEW: "I was an athlete masquerading as a student," plaintiff Ed O'Bannon says
  • NEW: NCAA agrees in one suit to pay $20 million to athletes featured in video games
  • Former UCLA player O'Bannon leads calls for college athletes to get share of profits
  • The NCAA maintains college athletes are amateurs, rewarded with an education

(CNN) -- It was fourth and long and the clock was ticking down to half-time when the quarterback launched the Hail Mary pass. Tyrone Prothro charged down the field, reached around his opponent's head and caught the football, tumbling into the end zone to score for Alabama, still wrapped around the defender.

The amazing catch propelled Prothro to stardom and, for a few weeks, the all-star receiver was one of the most talked about athletes in the world of college sports. The play was shown over and over again on television.

Ex-athlete sues NCAA for cut of profits

That was September 10, 2005. Less than a month later, he shattered his leg, and with it, his NFL prospects. Prothro graduated from the University of Alabama but never made a cent from the thing he studied the most -- playing football.

"(He) had something that was monetized on TV, played over and over again," said Sonny Vaccaro, the former Nike executive who practically invented the branding of athletes and has since become an advocate for paying them.

While Alabama and the SEC cashed in on the astonishing play that was to win Best Play of the year in the 2006 ESPYs, Prothro struggled. He spent years fruitlessly trying to land a coaching job while working as a bank teller and then in pest control.

Hardly the life he'd imagined on that Saturday in September 2005.

That's the reality for many college athletes -- one that Prothro and more than a dozen other athletes are trying to change.

Taking it to court

They are all part of former UCLA basketball player Ed O'Bannon's lawsuit against the NCAA, which went to trial on Monday.

The suit seeks to end the NCAA's control over the rights to college athletes' names, images and likenesses.

As it stands now, when they commit to a university, players are required to sign a waiver that relinquishes their right to their own likenesses in every form.

That means they can't make money off their television appearances, their jerseys, or in any other way.

Their universities get any revenues from selling sports paraphernalia or other material related to the players.

The O'Bannon suit alleges the waivers the athletes are required to sign are illegal, and they want players to be able to collectively negotiate the terms of their likenesses. Basically, they want a share of those profits.

"They've created a world where players can't negotiate," said Michael McCann, a sports-law attorney at the University of New Hampshire.

A win for O'Bannon could change college sports drastically. The NCAA might have to restructure its amateur model, even start paying college athletes.

Judge Claudia Wilken, who will decide the suit, has so far given the plaintiffs almost everything they've asked for, including the ability to amend and modify their lawsuit to give them a better chance at winning.

That may be no indication of how she'll rule at the end of the trial, which began Monday in federal court in Oakland, California. But experts in college sports and anti-trust law are predicting O'Bannon will prevail.

Legal appeals will likely delay a final outcome for years, but the O'Bannon suit is still in a position to be the first major NCAA reform effort to take hold.

The NCAA did not respond to repeated requests for comment over several days on O'Bannon's suit and the broader issues.

Already the issues brought up in the case are having an effect — even before any ruling is made.

Texas A&M, Arizona and Northwestern universities have decided to stop selling jerseys with the numbers of specific players

Instead, Texas A&M will only sell the number 12 jersey, in keeping with its 12th man tradition; and Arizona will sell jerseys with numbers that correspond to the year of competition -- 14 for this year, according to a school spokesman. Northwestern will sell only jersey number 51, in honor of its head coach, Pat Fitzgerald, and legendary Chicago linebacker Dick Butkus.

"Last year, as we began making plans for the 2014 season, we took the opportunity to evaluate the landscape and some of the questions being raised, and determined there was no upside to continuing to offer specific jersey numbers for sale," Northwestern spokesman Paul Kennedy said in a statement to CNN.

"Fans will continue to be able to purchase customized jerseys with numbers that are meaningful to them and their affiliation with Northwestern Football."

The NCAA's argument in both the ongoing O'Bannon suit and another one filed by former quarterback Sam Keller, also in federal court in Oakland, California, is that it is trying to protect the amateur model of college sports.

Even as testimony began Monday in the O'Bannon case, the Keller lawsuit ended with the announcement of a settlement -- the NCAA agreed to pay $20 million to former athletes who were featured in college sport video games.

The settlement ends the litigation brought by Keller, and means that certain athletes will split a combined $60 million — the other $40 million coming from the video game-maker, EA Sports, which settled last year and agreed to stop making the games.

O'Bannon's story

In 2009, Ed O'Bannon was five years' retired from professional basketball.

He'd worked hard to save money from his nine-year career in the NBA and Europe and was living a modest life with his wife and children in Las Vegas, when, during a visit at a friend's home, he first saw himself in an EA Sports college basketball video game.

He decided it wasn't fair that while he was grinding away at work each day, the NCAA and EA sports were making big bucks off his likeness.

So he decided to sue.

In the last five years, his lawsuit has expanded to become the symbolic antagonist to the NCAA, which organizes college sports -- both those that generate revenue (basketball and football) and others such as soccer and lacrosse.

"I want players to get what they deserve," O'Bannon told CNN in January. "I want to right a wrong, I want the game to change. I want the way the NCAA does business -- I want that to change."

His case has morphed into a complicated web of issues.

For several years it was merged with the similar suit filed by former quarterback Keller. Then last year, EA Sports settled and the company announced it would make no more video games featuring college teams. Keller's suit against the NCAA was separated and the settlement was announced Monday as testimony began in the O'Bannon case.

During O'Bannon's testimony in court Monday, NCAA lawyers asked if O'Bannon understood the worth of being a college athlete -- the free training, free coaching, free use of facilities, plus an education at UCLA, and the opportunity to travel.

All of those benefits, NCAA lawyers said during questions on cross-examination, are paid for with the revenues from television broadcasts of the games O'Bannon is suing about.

In turn, O'Bannon's testimony focused mostly on how much of a time commitment basketball was during his time in college.

His testimony was very similar to that of former Northwestern quarterback Kain Colter, when Colter testified before the National Labor Relations Board in February, successfully convincing the board that college football players are employees of their universities.

Like Colter, O'Bannon said he was kept from taking certain classes, that UCLA basketball was his number one priority, over school, and that it involves an intense schedule.

"I was an athlete masquerading as a student," O'Bannon said "I was there strictly to play basketball. I was an athlete. I did basically the minimum to make sure that I kept my eligibility academically so I could continue to play."

A sports economist, Robert G. Noll, who testified on behalf of the O'Bannon plaintiffs said that the NCAA has complete control over the college sport market.

That goes right to the heart of O'Bannon's argument that, as it stands now, the NCAA forces athletes into signing a waiver relinquishing their rights if they want to play. There are no other options, except for not playing at all.

Noll also pointed out that no other nation has intercollegiate athletics like the United States.

The NCAA is expected to have its own expert economist take the stand later in the trial and dispute what Noll said.

One person who probably won't be heard from is NCAA President Mark Emmert. He was on O'Bannon's witness list, but O'Bannon attorney Michael Hausfeld told reporters when the first day concluded that the NCAA says Emmert is not available

What could be next

For O'Bannon to win, the judge would have to agree that the waiver that players are forced to sign is illegal and demand that the NCAA pay athletes for the rights to their likenesses.

This would completely change the way the NCAA works, and that would mean athletes would need some kind of union to negotiate.

Already there is an organization on the sidelines waiting to help players handle the details.

Attorney Ken Feinberg, known best as special master of the 9/11 victims compensation fund, has formed the Former College Athletes Association, which he says will be ready to act on behalf of the athletes if the NCAA settles or O'Bannon wins.

"It will be ready to help represent athletes in sharing NCAA proceeds after they graduate from college and are in the marketplace earning a living like everyone else," Feinberg said.

Unlike some of the other lawsuits against the NCAA that seek a free market for athletes, the O'Bannon case would put cash in the pockets of a large number of athletes -- maybe even benefiting those in the non-profit-generating sports.

Feinberg says he envisions that the pool of money from television revenues would be evenly distributed to athletes on teams that are televised.

"We're not going to get into the business of distinguishing between the bench warmer and the all-American tight end," he said.

Players featured in video games and those whose jerseys are sold would get a cut of those profits, too.

O'Bannon dropped the part of the lawsuit that would have sought payment for former players, but they could still potentially get royalties when classic games are aired on TV in the future.

In all cases, the pay would come only after an athlete graduates or leaves school.

Challenge to NCAA core

There is a catch -- O'Bannon is only suing the NCAA, and the NCAA doesn't make money off regular season television games.

Revenue from the NCAA specifically comes from March Madness television contracts and from sports paraphernalia sales. It's the conferences and the schools that negotiate the TV deals for -- and profit from -- Saturday football and regular season basketball games.

Sports-law attorney Michael McCann says he doesn't see that as much of a problem. He thinks that the NCAA could easily demand each of its member schools share in its new burden, and pull the money from universities and "demand that each member school contribute its fair share."

Yet critics of the O'Bannon suit say it's a weak anti-trust claim, and that O'Bannon is suing the wrong entity, because the NCAA doesn't make money from the regular season television contracts.

"You can bully people, that's not an antitrust violation," said Gary Roberts, an Indiana University sports-law attorney.

Still, Roberts says that based on the public support and recognition the O'Bannon case has gotten, he thinks it's likely to win at trial but lose on appeal. Other efforts to dismantle the current NCAA model that have had less publicity might actually be more legally sound, Roberts said.

At the heart of all the lawsuits is a core challenge to the current NCAA model. All the critics maintain that the NCAA is not keeping its promise to pay players with a free education.

A CNN investigation found many public schools admit revenue-sport athletes with SAT and ACT academic scores far below the average of their peers. That leads to instances where players are forced into hodgepodge majors, grouped together in easy classes and getting too much help from tutors.

A key example of that is at the University of North Carolina, where whistle-blower Mary Willingham and former athletes say "paper classes" were used to keep eligible athletes who were admitted at much lower standards than the rest of the student body.

The NCAA has been widely criticized for not punishing UNC after the scandal was revealed. And many reformists have told CNN they believe it's fear of the O'Bannon suit that led the organization to look the other way at UNC.

Willingham is listed as a potential witness in the O'Bannon trial. It's unclear if she will testify, but she told CNN this week that she was told to be on standby. O'Bannon's lawyer couldn't be reached for comment.

Tyrone Prothro became the most talked-about college athlete, but his career hopes soon shattered.
Tyrone Prothro became the most talked-about college athlete, but his career hopes soon shattered.

For Prothro, there is no chance of cashing in on that ESPY-winning catch. Last month, the plaintiffs gave up their request for monetary damages in exchange for a bench trial, meaning there will be no jury, and the judge will make the decision.

O'Bannon says the goal isn't to make money, it's to change the culture of the NCAA and college sports.

"I think change, in my opinion, is inevitable. I think change needs to happen," O'Bannon said. "A lot of players don't have anything to show for their effort, when they go to school, because they put everything into that particular craft, and once it's done, life kind of chews them up and spits them out.

"A player should be able to take what they did in college and kind of use that to, to their advantage, at least there should be something monetarily in the bank for them when they're done, they can fall back on."

NCAA faces change, legal challenges in months ahead

'Amateurism is a myth'

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