The Road to O’Bannon
“The Road to Brown” is an excellent documentary about a very dry subject: litigation strategy. In the short film, the story is told about how the NAACP and a group of lawyers devised and executed a long term legal battle against segregation in public schools. Instead of starting with primary schools in the Deep South, the lawyers first attacked the issue on its periphery, starting with professional schools and colleges in areas like Texas and Maryland. Only after winning valuable precedent in those cases did the NAACP’s legal team bring the package of cases that became Brown vs. The Board of Education.
When the O’Bannon lawsuit was filed four years ago, it seemed like the plaintiffs were following the same path. The original lawsuit attacked a tiny portion of the issue that should not have raised much alarm. Use of an athlete’s likeness after he or she graduates in video games strikes at neither the NCAA’s core amateurism rules nor a significant source of revenue for the NCAA, conferences, or colleges. A victory there would have stopped an NCAA winning streak in amateurism cases and set a valuable precedent.
From there, the attorneys could have gone after the use of former athlete’s images in archival broadcasts, marketing materials, even on ticket stubs. A series of victories would have established that the NCAA and its members must get permission to use the likeness of former athletes. Another series of cases could extend that ruling to current athletes. And from there, the final antitrust could be filed: arguing that the NCAA rules cannot limit the terms under which that permission is granted.
It’s a long-term, conservative legal strategy. It took 20 years from some of the earliest victories in integration cases until Brown was decided, even longer until most of the major legal wrangling on the core issue (Brown II, Cooper v. Aaron) was finished. If the O’Bannon plaintiffs and attorneys followed this path, the NCAA’s core rules would not be challenged until potentially the 2030s.
But when they did, the plaintiffs in that final showdown would have many recently decided precedents in their favor. The NCAA would be bringing old and flimsy law to the table. Between the change in legal positions and public opinion should the NCAA suffer a series of defeats in court, a defeat for the NCAA would be a foregone conclusion.
Instead, the O’Bannon plaintiffs have pushed everything to the center of the table and made this an all-in bet for both them and the NCAA. If the NCAA loses, college sports will almost certainly be radically altered forever. If the NCAA wins, it could strength the NCAA’s judicial antitrust exemption from one that is resting on some slender reeds to one that is virtually unassailable.
The last resort, a legislative solution, is also in favor of the NCAA right now. Should the NCAA suffer a shocking and comprehensive defeat, it could throw itself on the mercy of Congress. The NCAA could give up some autonomy and submit to greater federal regulation in exchange for an antitrust exemption that preserves its amateurism rules. If the NCAA had been battered in both the courts and voters minds for a decade or two, it is much more likely that Congress would side with the plaintiffs should the NCAA not be defeated once and for all in court.
To torture a sports analogy, one of the goals of an attacker in any sport is to force the defender to commit to an action before the attacker has made a decision. A basketball player wants a defender to deny the shot while he can still drive past him. The O’Bannon plaintiffs did not appear to do this. They have made the decision and are now daring the NCAA to stop them.
Despite telegraphing their move, the plaintiffs may ultimately beat the NCAA. But they may also have made their move too soon and overplayed their hand. It is hard to see how the NCAA could have won against a coordinated legal assault where everyone was committed for the long haul. Now all the NCAA has to do is win a coin-flip case in the Supreme Court.