Sonny Vaccaro knew nothing about the law. He did know a lot about college sports and was sure the athletes who were driving millions of dollars in revenue to their schools should be paid.
Michael Hausfeld knew nothing about college sports, but it didn’t take long for the attorney who built his reputation challenging oil companies and Swiss banks to conclude the way the NCAA was doing business looked illegal.
“I went to him and said, ‘I think these (athletes) are getting screwed,’” said Vaccaro, the former sports executive perhaps best known for helping Nike sign Michael Jordan out of college. “Then (Hausfeld) said to me something that really wasn’t on my mind. He said, ‘Well, now you gotta find me a guy who’s gonna sue.’”
Searching for an entry point to challenge a system they viewed as unfair to college athletes, Vaccaro and Hausfeld found it in former All-America basketball player Ed O’Bannon, the MVP of UCLA’s 1995 national championship team. He signed on as lead plaintiff of a lawsuit in 2009 after seeing his image in a popular video game from EA Sports authorized by the NCAA that he was not being paid for.
O’Bannon challenged the NCAA’s right to make money off the use of athletes’ names, images and likenesses and other plaintiffs in the antitrust case included Oscar Robertson and Bill Russell. Vaccaro was there in 2014 when they won.
“I just wanted to right a wrong,” O’Bannon said then.
The games went away; EA Sports didn’t want to risk further legal exposure. But after a 10-year hiatus, the college football version of the game has returned with great fanfare. EA Sports said more than 2.2 million users had played College Football 25 even before its official broad release last week.
The athletes in the game are clearly identified — and they are being compensated.
O’Bannon case impact
A decade after that court ruling, the NCAA’s longstanding collegiate model of amateurism is pretty much dead, with the association and five major conferences agreeing in May to a $2.8 billion antitrust settlement that includes a plan to share revenue with athletes.
The settlement announcement and the return of EA Sports within weeks of each other was a coincidence, but symbolically it couldn’t be more appropriate.
“We knew from the very beginning that we were going to be undertaking a challenge to the concept of amateurism as it was masqueraded by the NCAA,” Hausfeld recently told The Associated Press.
O’Bannon’s complaint was born from playing EA’s college basketball game and noticing a nameless avatar suiting up for UCLA that looked and played an awful lot like him. Because of the lawsuit in his name, O’Bannon has become synonymous with the demise of the NCAA and the unmasking of big-time college athletics as a billion-dollar industry running on unsalaried labor.
It’s not a legacy O’Bannon actively embraces, and he declined an interview request by the AP.
“I knew something had to be done,” he told Sportico in May. “I figured once people began to look under the hood of NCAA rules, they’d realize those rules really didn’t add up. Why can’t a video game company pay college athletes to be in a video game, when that same company pays NBA and NFL players? It just doesn’t make any sense.”
Building a case
A college football player also played a vital role: Quarterback Sam Keller noticed when he transferred from Arizona State to Nebraska that the avatar that represented him in the video game also appeared to switch schools. Keller filed suit a few months before O’Bannon.
Robert Carey, an attorney at Hagens Berman, said it was a former Michigan football player named Chris Horne who first tipped him off to how the video game was using the players’ likenesses without permission. Carey and his colleagues dug into the details and figured they had a potential class-action lawsuit.
“We put in a ton of time matching up (real) rosters with (video) game rosters, and had an understanding that you had to be within 1 inch of the height or X percent of the weight, so that it would exclude anyone who doesn’t match up, because there were people that didn’t match up,” Carey said. “That was a tremendous undertaking.”
Carey said they quickly realized a case would be about more than just a video game. He said the firm was cautious about taking on the NCAA and the beloved enterprise of American college sports.
“The NCAA … they were not minor litigators. They went in full, full bore, with high-powered firms and high-cost lawyers, high-dollar lawyers,” Carey said.
The Keller lawsuit sought damages for players whose images had been used in the game for years, differing from the O’Bannon approach of challenging NCAA rules that prevented the players from being compensated.
“This was a theft of property case,” Carey said. “Theirs was a market constraint case.”
The two cases were merged, but the Keller case ultimately settled for $20 million. The O’Bannon attorneys pushed ahead and found U.S. Judge Claudia Wilken from the Northern District of California unsentimental about preserving the status quo of college sports.
“She got it. She understood what the arguments the NCAA were trying to make and shut down almost all of them, all their defenses related to amateurism,” said Jon Solomon, who was a reporter at the time covering the trial and now works for the Aspen Institute Sports & Society Program.
On Aug. 8, 2014, Wilken ruled against the NCAA. It took a year for the ruling to be upheld by an appeals court and another six months before the Supreme Court decided to not hear the case.
The fallout
The NCAA at the time framed the decision as losing a battle but not the war. That spin and the slow pace of the legal system seemed to shield the enormity of the ruling from public perception.
Those following closest understood a significant domino had been tipped.
“I thought eventually there would be a reckoning,” Solomon said.
Not until 2021 did the NCAA finally lift its ban on athletes earning money from their celebrity. Now thousands of athletes are earning millions of dollars in endorsement deals big and small. But while NIL has become something of a stand-in for athlete salaries, more antitrust lawsuits followed and a 2021 Supreme Court ruling essentially stripped college sports of all its defenses and made clear athlete compensation is here to stay.
Finally, the NCAA and leaders of college sports conceded. Concerned that another court loss could potentially bankrupt the industry, college athletes are on course to receive a cut of the billions in revenue their sports generate, perhaps as soon as 2025.
“Now, it’s over. The game is over,” Vaccaro said, referring to NCAA amateurism.
Ironically, for many, the game is back and better than ever.
Follow Ralph D. Russo at https://twitter.com/ralphDrussoAP