Help Wanted: Current College Athlete to Join Plaintiffs

As you should know by now, the O'Bannon v NCAA case continues to wind through the court system, and this past Thursday there was a hearing to address class certification before federal judge Claudia Wilken  The resolution of this case will forever change college athletics; whether it ends in a trial on the merits (doubtful) or settlement (far more likely).

Where are we going?  I offer big picture perspective, a solution, and immediate needs below:

Big Picture:

Joe Nocera of The New York Times takes a big picture approach to look at the impact the O'Bannon case will have on college athletics in this article titled "The Lawsuit & The NCAA."  The theme continues to be, change is coming and the only question is how and when.

One Solution:

Advocating for paying college athletes, I wrote the following piece in The Boston Globe recently.  Then, I offered a solution in an op-ed in The Chronicle of Higher Education by proposing the creation of a new NCAA division in this article.

Immediate Concern:

What's become apparent is that the class certification efforts--to include current college athletes as plaintiffs with former college athletes--is that Judge Wilken has indicated a willingness to certify IF a current college athlete is formally willing to participate as a plaintiff.  While the plaintiffs asked if the individual could be anonymous, it appears that the answer is "no."  Thus, the rights of future college athletes and the framework of this industry are seeking a courageous CURRENT student-athlete.

Andy Staples provided a great overview of the situation in Sports Illustrated with this piece titled "Current College Athlete Set to Become Face of Ed O'Bannon v NCAA."  To summarize the requirements, the plaintiffs seek the following:

1.  A current student-athlete in the sport of men's basketball or football;
2.  Who starts at a school in either the ACC, Big 12, Big Ten, Pac-12 or SEC;
3.  That gets significant screen time when his team's games are televised (i.e. a star);
4.  Who has a pristine personal history;
5.  Who is courageous, strong in his convictions, and intelligent.
6.  And finally, someone willing to be the face of change in college athletics.

Up to the task?

Footnoting the New Jersey Sports Wagering Litigation

I recently had the chance to read the latest round of briefs filed in the on-going New Jersey sports wagering lawsuit.  The case is now at the U.S. Court of Appeals for the Third Circuit, with oral arguments scheduled for June 26.  Griffin Finan of Ifrah Law penned a comprehensive post pertaining to the DOJ's brief filed on the side of the plaintiff quintet (NCAA, NFL, NBA, NHL, and MLB).  New Jersey filed a reply brief on June 14 and I was struck by the content of the footnotes contained therein, as lead counsel Ted Olson (a former Solicitor General) made a number of thought-provoking points.  I have long been fascinated with the use of footnotes in Supreme Court opinions and academic writing generally.

After losing at the District Court level, New Jersey's appeal is premised on three arguments: (i) the sports leagues lack standing; (ii) PASPA violates the 10th Amendment; and (iii) PASPA violates the principle of equal sovereignty. In support of the state's standing argument, the brief includes four footnotes.  In sequential order:

Footnote #1 addresses the recurring issue of actual injury (from sports wagering) and injury stemming from the perception of game-fixing.  It posits that "[a]ny perceptions of game-fixing - no less than the instances of game fixing themselves - are caused by the Leagues' own agents."

Footnote #2 flags the issue of the sports league plaintiffs holding events in Las Vegas, but not having pro franchises in the city.

Footnote #3 covers the "Sports Wagering Law's carve-out for New Jersey collegiate teams" and posits that "[t]hat exemption was included at the request of the NCAA." The emphasis in bold/italics is contained in the brief.  It is not my own.  Curiously, this footnote appears to be at odds with a previous report pertaining to the matter.  I am unable to reconcile footnote #3 with the the statement made in the article linked in the previous sentence.  As such, I am curious if the sports league plaintiffs and/or the DOJ raise this issue during oral arguments or a subsequent pleading.

Footnote #4 gets to the issue of whether PASPA confers any intellectual property right and cites the recent SCOTUS decision in Already, LLC v. Nike, 133 S. Ct. 721 (2013).

I look forward to reading the transcript of the upcoming oral argument and seeing how many of these footnoted issues are covered.  My sense is that the over-under is 2.5.