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Former College Athletes’ Attorneys Propose A Real Solution to the Pay For Play Dilemma

Related Lawyers: Michael D. Hausfeld
Related Practice Areas: Antitrust / Competition, Sports and Entertainment

In the lead case by former college athletes to prevent unauthorized profiteering of their name, image and likeness, (“NIL”) the athletes made a bold and brilliant legal maneuver. It is a strategy that may finally offer a partial solution to the question: “How can playing college players work without destroying the game as we know it?”   

The strategy is bold because it eliminates the request for economic-based damages. No one represents by poor plaintiffs for several years that have been denied a chance to ever profit from the use of their own name during college while others have made billions – and then not ask for billions in return. Who does that without getting sued for malpractice?

The strategy is brilliant because it probably enhanced the athletes’ chance for success in ways not previously fathomed . There are three prongs to the strategy. First, instead of requesting that the court establish a complicated formula for attribution and allocation of financial responsibility for the NCAA, conferences and member institutions, the athletes’ legal team simplified the entire case. The sole focus now is just on preventing the NCAA from enforcing the rules that prevent the athletes from profiting from their own name and likeness.

Second, and just as important, if the prevention technique, termed an injunction is successful, an independent nonprofit organization (Former College Athletes Association or “FCAA”) will be established to create a workable formula for sharing the NCAA television rights and other revenue tied to the sport. 

The other brilliant component of this prong is the creative use of experts in a related field who already deal with mega-allocation issues involving intellectual property rights. That field is entertainment. SESAC collects money from hundreds of thousands of users of music. The money is collected on behalf of those who wrote the songs or share in the creation. SESAC represents the likes of Bob Dylan and Neil Diamond.

Much like the music rights collection, SESAC would partner with the FCAA to collect for the athletes’ rights to their own name, image and likeness. The analogy is clear. Both involve IP rights collection.  SESAC is among a small specialized group of organizations that established a reliable collection system. That system operates in a far more difficult industry than college football with its mere 115 Division 1 institutions. Every time you hear a song on a juke box, in an elevator or department store, or on television or radio, SESAC and a few others track air play and provide an economic return for the musicians. The same fundamentals could be applied to capturing a return for athletes from a much smaller pool of IP users – NCAA D-1 schools.

Third, the athletes withdrew the request for a jury trial, and asserted its right for a bench trial (a decision by the judge without a jury). This is logical because the injunction issue is to be decided on a well-defined set of legal elements. The judge is the one to decide such elements as whether there is no adequate remedy at law and whether the athletes are likely to prevail on the merits of their antitrust claims.

The reason this strategy may improve the athlete’s chances is because if the case remained with damages included, the court may decide the athletes cannot prevail because what they propose cannot be reduced to a practical rule. Many legal theories have been rejected on that basis. The court now is only asked to rule on the injunction request.

Similarly, courts have often rejected requests to change an entire system through a single case, albeit a consolidated one like this. The rationale is often that the plaintiff’s theory does not cover the myriad of circumstances that arise, or it undercuts the policy interests in the industry.

Here, the plaintiffs focus on the former college athletes. Reducing the case to a simple set of rules to decide an injunction is easier to decide, and more practical in application. The court now does not have to agonize over the fate of the entire college sports industry. They do not have to decide how money would be collected or allocated. That is an area where judges are not experts. This strategy leaves that to the nonprofit partnership with SESAC. Those factors all favor the advocate for change who has chunked the changes into manageable sections to be methodically and thoughtfully developed over time.  

The elimination of the jury is also a savvy move . Laypersons, and most humans for that matter, are reluctant to endorse what they don’t understand. This is a complicated antitrust case with many interdependent parts that all must fit together for the athletes to prevail.

The plaintiffs are indeed bold. Time will tell if they were also brilliant. But as plaintiffs who file a case should, they are carrying the ball. They are causing the defendant to play defense. The court already rejected the NCAA’s attempts to prevent the use of this strategy. Stay tuned. The trial is still set for early June.

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