Attorney Daniel Fitzgerald On: O’Bannon v. NCAA

Friend and colleague, Daniel Fitzgerald,  announced that the Connecticut Law Tribune has included an article that he has written on NCAA v. O’Bannon in its special section on intellectual property law, which was published today, April 18, 2011.

Here is an excerpt from the article:

Sixteen years after starring in the NCAA tournament, O’Bannon is the lead plaintiff inO’Bannon v. NCAA (also referred to as In Re NCAA Student-Athletes Name & Likeness Licensing Litigation), a lawsuit pending in U.S. District Court for the Northern District of California. After his professional basketball career ended, O’Bannon grew frustrated that various entities continued to profit from his and his teammates’ collegiate success at UCLA while they received nothing. O’Bannon was connected with Sonny Vaccaro, who is credited with introducing commercialism to college basketball through his marketing efforts on behalf of sneaker companies. Vaccaro, now an outspoken advocate for the rights of student-athletes, connected O’Bannon with a law firm experienced in dealing with high-profile class action suits. A O’Bannon v. NCAA Shines a Light Upon Student-Athletes’ Right of Publicity v. NCAA Shines a Light Upon Student-Athletes’ Right of Publicity ensued.

O’Bannon v. NCAA is brought on behalf of former NCAA student-athletes against the NCAA and its licensing arm, the Collegiate Licensing Company and video game developer Electronic Arts Inc., often referred to as EA Sports. The action survived the defendants’ Motion to Dismiss and has been consolidated with Keller v. Electronic Arts, a similar lawsuit brought by former Arizona State and Nebraska quarterback Sam Keller.

The plaintiffs in O’Bannon v. NCAA assert two central claims. First, they claim that the defendants violate the Sherman Antitrust Act. Second, the plaintiffs claim that the defendants improperly license and/or use players’ likenesses in violation of their right of publicity. This article provides a brief snapshot of the right of publicity issue, which has implications for past, present and future student-athletes, as well as the NCAA’s concept of amateurism.

New Stadium in Los Angeles – But No Team!?

The City of Los Angeles, California is expected to “publicly lay out their negotiating position” on a proposed new NFL stadium.  The stadium, which will be known as Farmers Field, will be built at a cost of over $1 billion dollars, will seat approximately 64,000 people, and is to be constructed in the downtown area.

Chief Legislative Analyst Gerry Miller is recommending that the city “maintain ownership of the land the stadium would be built on and not to sign a lease for longer than 55 years.”

I just have a few questions for Mr. Chief Legislative Analyst Gerry Miller.

One – if you lay out your negotiating position in a public forum, so that everyone knows your plan, doesn’t that take away your leverage in future negotiations?

Two – recent reports indicate that the State of California has a $25.4 billion dollar budget deficit.  Why on earth would you even consider using public funds/taxpayer money to pay for a new football stadium, when – wait for it, wait for it:

The City of Los Angeles does not, and I repeat does not, have an NFL franchise, nor is there a written commitment from the NFL to place a franchise in the City in the near future.  And, as all reports indicate, the NFL generated approximately 9.3 billion dollars in revenue in 2010.  Can’t the NFL and the NFL Owners pay for their own field to play on?

NFL/NFL Players’ Association Labor Dispute Update.

U.S. Magistrate Judge Arthur Boylan, the federal magistrate tasked with overseeing the mediation between the National Football League and the former NFL Players’ Association, assigned weekend homework to both sides after a second day of court-ordered negotiations ended with no signs of significant progress. The two sides met for about four hours on Friday, following nine hours of meetings on Thursday.  Both sides are scheduled to meet again with Judge Boylan on Tuesday, April 20, 2011.

Former Minnesota Viking and Hall of Famer Carl Eller, who is representing retired players in a companion antitrust lawsuit against the NFL, was present at the Minnesota courthouse and said he thinks the two sides are “moving forward” but the process “slowed a little bit” Friday.  “There is progress, but it wasn’t like we’re right around the corner,” Eller said. “We could resolve it if we had met on the weekend, but maybe not.”

U.S. District Judge Susan Richard Nelson ordered the sides to mediate their billion dollar differences while she considers the former players’ request to lift the lockout imposed by the Owners. After the April 6, 2011 hearing, she said she planned to rule on the players’ injunction request in a couple of weeks – which by my calculation – would mean any day now.