Today, college athletes nationwide can earn money from NIL (name, image, and likeness) deals, like professional athletes. They have an African American former power forward, Edward Charles O’Bannon, to thank for it.
O’Bannon had a storied basketball career. A native of Los Angeles, he was a McDonald’s All-American high school basketball player, and he was named the 1990 National High School Player of the Year after leading his high school team to the California state championship.
Naturally, O’Bannon was recruited to UCLA, where he led the storied Bruins to the 1995 national championship, where he was named the NCAA Tournament’s Most Valuable Player and National Player of the Year. He was a lottery pick in the 1995 draft and spent nine years in the NBA.
In 2009, O’Bannon saw his likeness from the 1995 championship team used in the EA Sports title NCAA Basketball 09 without his knowledge or permission. The game featured an unnamed UCLA player who played O’Bannon’s power forward position while matching his height, weight, baldhead, skin tone, No. 31 jersey, and left-handed shot.
O’Bannon filed a lawsuit against the NCAA and the Collegiate Licensing Company, alleging violations of the Sherman Antitrust Act and actions that deprived him of his right to publicity. Oscar Robertson and Bill Russell, along with 20 other former college athletes, joined the class action antitrust lawsuit.
The lawsuit challenged the NCAA’s rules restricting compensation for men’s football and basketball players’ images and likenesses. The suit alleged that the NCAA rules operated as a restraint of trade because they preclude FBS football players and Division I men’s basketball players from receiving any compensation – beyond the value of their athletic scholarships – for the use of their names, images, and likenesses in video games, live game telecasts, re-broadcasts, and archival game footage.
Two of the original defendants in the case, Electronic Arts and the Collegiate Licensing Company, reached a $40 million settlement before trial that netted as much as $4,000 each for 100,000 current and former athletes who had appeared in DA Sports’ NCAA Basketball and NCAA Football video game series since 2003.
The case was decided in 2014. Most importantly, the judge ruled that the NCAA’s long-held practice of barring payments to athletes violated antitrust laws. She ordered that schools should be allowed to offer full cost-of-attendance scholarships to athletes, covering cost-of-living expenses that were not then part of NCAA scholarships. She also ruled that a college could place as much as $5,000 into a trust for each athlete’s per-year eligibility. The Ninth Circuit Court of Appeals later upheld this ruling.
Finally, the courts pushed aside previous rulings that had largely shielded the NCAA from antitrust laws. This set the stage for further rulings against the NCAA under antitrust law, most notably the Alston case in 2021, which, like O’Bannon, prevented the NCAA from placing strict limitations on the financial awards college athletes can receive. After the U.S. Supreme Court unanimously upheld the Alston verdict in 2021, sweeping NIL legislation by the states followed almost immediately.
Today, college athletes can earn money from endorsement deals, autograph signings, and other commercial ventures, and they all have a 6’8” power forward Ed O’Bannon to thank for it.
As a long-time advocate of paying the people who generate the money in big-time college sports – the athletes – I was pleased with the outcome of the O’Bannon et al. lawsuit. However, these changes did not develop as some of us advocated. As a result, problems are already occurring in this new world of college sports administration. I will address those later.
