By Jerry R. Caldwell
The Legal Blitz
As a former Division I athlete and now an attorney, I sit and anxiously anticipate the decision that will come from U.S. District Court Judge Claudia Wilken on Thursday similar to the nation of basketball fans awaiting “The Decision” of LeBron James as a free agent three years ago. If you have been hiding under a rock or just not really interested in "The Decision" as it relates to the lawsuit by former UCLA college basketball star Ed O'Bannon against the "bully" known as the NCAA, I will attempt to catch you up to speed without boring you with a history lesson or a law lecture.
About two years ago Ed O’Bannon filed a lawsuit against the NCAA alleging a violation of federal antitrust laws. Obviously, the NCAA, as it has done for years, responded with the innocence of a child who has been accused of eating cookies before dinner evidenced by chocolate and crumbs all over their face. In fact, their position is so unbelievable that it hardly passes the laugh test to those that have suffered the most -- former and current student athletes. Subsequently, other individuals, notably basketball greats Oscar Robertson and Bill Russell, joined O’Bannon asserting their claims in hopes of being certified as a class action lawsuit.
Now I promised I would not give a law lecture, however providing you with some background law will assist you in gaining a full understanding of Judge Wilken's upcoming monumental Decision. Class action lawsuits were vehicles created initially as a more efficient way to bring a resolution to a large number of claims by individuals who have suffered similar physical or financial injuries as a result of the same defendant’s actions. I'm sure many of you have received that small piece of paper in the mail that mentions that you may be entitled to some money as a result of a class action lawsuit against ABC Company only to find out later, you would receive $1.25. (So much for quitting your job). I digress.
Besides being financially prohibitive to the plaintiffs, it would also be a huge waste of time for the court and the defendant to both try and defend all of those claims individually. It goes to the saying that "There is strength in numbers." Individually, the claims against a defendant are small, but collectively, it makes for a totally different outcome.
Over the years, the perception of class action lawsuits has been that plaintiffs' attorneys have abused them to pressure companies to settle lawsuits that may lack merit and/or are baseless. As an attorney, I’ve come to appreciate judicial efficiency, a fancy phrase for getting cases resolved in a timely manner.
A very important step in the class action lawsuit process is that a lawsuit does not become a class action until (and unless) the court enters an order under Rule 23 of the Federal Rules of Civil Procedure certifying it as such. Most importantly, if a plaintiff succeeds in persuading the court to certify the case as a class action, the defendant almost certainly is forced to negotiate a settlement agreement to avoid any future bad publicity, expenses, and most importantly an increased exposure to a crippling jury verdict.
One significant disadvantage of a class action is that if the plaintiffs lose the lawsuit, they're prohibited from filing individual suits later. This is why it is important to opt out of a class action if you feel that your damages are substantially higher than the rest of the class.
Fast forward with me to “The Decision” of June 20, 2013. Will the bully known as the NCAA fall from its throne or will it continue to "pimp" student-athletes as the financial pie continues to grow?
In my opinion, no matter whether Judge Wilken decides to certify the class (advantage plaintiffs) or not certify the class (advantage NCAA); the NCAA will not tumble and disappear. However, I do think that if the judge decides to certify the class, there will be changes in the way the NCAA operates, but student-athletes will not pour into the streets of their respective campuses as if they just won a NCAA championship.
This week's Decision will only address the issues that are currently on the table; however, there are many issues that surround student athletes that will likely go unaddressed which will ultimately leave the big pink elephant in the room that no one, other than student-athletes, wants to discuss: compensation.
Before any one starts throwing stones at me or unfriending me on social media, I'm not arguing for college athletes to be paid salaries, I'm simply saying remove the restrictions and allow them to enjoy their fair share of the revenue pie because the last time I checked, they are the only ones scoring touchdowns, scoring baskets, and/or hitting homeruns, and currently their "compensation" is a "free education." If you ask my wife, she would argue that my education was far from "free" based upon the sounds of my knees and back in the morning.
I'm remaining hopeful that "The Decision" will serve as a catalyst for open dialogue as it relates to college athletics. Just because the current business model works for a few does not mean that it is the best option. As I often tell administrators from various universities that I encounter, there are a lot of smart people in the world. Let's at least initiate dialogue to discuss how everyone can benefit and not just a few. Change is inevitable, so you have to embrace it. Right now, college athletics is due for some changes and I hope on June 20, 2013 that "The Decision” is the beginning.
So as the deadline approaches, where will you be when Judge Wilken's Decision is announced? Hopefully in South Beach!
-- Jerry R. Caldwell, Esq., is an Atlanta-based attorney and former Georgia Tech football player. Jerry specializes in business law, litigation, trademarks and sports & entertainment Law. Follow him on Twitter @JerryRCaldwell. Follow the Legal Blitz on Twitter Follow him on Twitter @thelegalblitz.
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