Five lawsuits that will change sports
November, 8, 2010Nov 812:08PM ETEmail Print Comments8 By Shaun Assael
Stephen Dunn/Getty Images

The NCAA paid out a whopping $84 million in legal fees last year, and
while that may seem like chump change to an organization that just
inked a TV deal that will pay it $10.8 billion over the next 14 years,
it's also a sign of the troubles the organization is having defending
its notions of amateurism.


O'Bannon v. NCAA
Agnew v. NCAA
DTB v. ATP
Williams v. NFL
USADA v. Merritt

Of course, the NCAA isn't alone in facing legal challenges that could
change the sports landscape. From a drug case that is headed to the
Supreme Court to an Olympic battle centered on a sex aide called
ExtenZe, here are five cases that could become game changers in the
very near future.




1. O'Bannon v. NCAA
Why should a sports figure give away his likeness, just because he
once played in college? That's the question that former UCLA
basketball star Ed O'Bannon is asking in a lawsuit that could reshape
the way college sports is marketed.


The NCAA argues that it doesn't license student images, just games.
But in February, a federal judge shocked the organization by refusing
to have the suit thrown out.


Now, 11 more ex-players have signed on with O'Bannon. Meanwhile, Sam
Keller, the former Arizona State quarterback and 2004 Sun Bowl MVP,
has opened up a second front on the video game company Electronic
Arts, asking for his cut of the proceeds for the use of his image. The
same judge who sided with O'Bannon combined their suits with six
others to create a monster challenge to the NCAA's marketing hegemony.



"This litigation has gotten to a point that has to be troubling for
the NCAA," says Vermont Law School professor Michael McCann. "No
previous lawsuit that I know of has advanced to this stage. It
elevates the possibility of a verdict where the damages are
astronomical. Potentially any retired athlete whose image has been
used by the NCAA after they graduate is part of this class."



Considering EA's NCAA football franchise just released its 18th game,
there won't be any shortage of names to put on the plaintiff list.



2. Agnew v. NCAA
Video games may be the least of the NCAA's problems. Former Rice DB
Joseph Agnew starts his federal court attack on its 37-year-old
practice of giving one-year scholarships by saying, "This suit arises
out of a blatant price-fixing agreement between member institutions of
the NCAA."



Agnew's beef is that the NCAA is preventing schools from offering
guaranteed full rides to recruits who are at a constant risk for
injury -- as he was when he needed multiple surgeries his junior year
at Rice. When the Houston private school cut him from the football
team in his junior year, he appealed its decision to take away his
scholarship. Agnew won, but he also had to shell out $33,000 to pay
for his senior year.



Agnew is seeking the right to sue on behalf of all other students in
the same boat, saying the costs of a full education are improperly
inflated by the one-year rule. And he's got company. The U.S. Justice
Department's antitrust division is snooping around the issue.

Is the era of the guaranteed four-year scholarship around the corner?

3. German Tennis Federation (Deutscher Tennis Bund) v. ATP
Two years ago, the promoters of a German tennis tournament marched
into a Delaware court to complain that the ATP, the world's tennis
body, had no right to shuffle their event to a B-list spot on its
schedule. Their argument was that the league, which has offices in
Florida, shouldn't be above American antitrust laws.



They didn't do very well. A jury found that the ATP had every right to
set its own schedule. What's the alternative? Chaos?



No, the promoters say. Fairness. In September, they filed this appeal
to the Supreme Court, insisting that the ATP is illegally dominating
the market for players.



What changed to make them think they have a chance now?



In March, the Supreme Court ruled that the NFL could be sued by a
clothing company upset about being locked out of its massively insular
marketing machine. What the cases have in common, lawyers for the GTF
say, is the principle that leagues should be able to be sued for the
rules and policies they set.



Gabriel Feldman, director of the sports law program at Tulane
University's law school, thinks that it's unlikely the Supreme Court
will hear the case. Still, if the high court bites, he'll be
interested in seeing whether the ATP -- or for that matter, the PGA,
Olympic sports or any of nonunionized leagues -- will be given the
same deference as the NFL to set its own rules.



"The Jets and Giants have to agree to play each other if there's going
to be a Jets-Giants game," he says. "But tennis and golf tournaments
don't have to reach the same agreements with each other. You can make
an argument that their structures are different. And you can make an
argument that the way they're treated in the courts should be, too."



4. Williams v. NFL
When Minnesota Vikings DT Kevin Williams went to his local drugstore
to buy the diuretic StarCaps before the 2008 season, he couldn't have
fathomed that the purchase would make him a central figure in a
Supreme Court case.



But that's what happened when he failed a drug test for bumetanide, a
banned substance that wasn't on the product's label. The NFL took the
case all the way to the Supreme Court, asking it to void a Minnesota
court ruling that found it violated local law when it took more than
three days to notify Williams of his positive drug test. Minnesota
also requires that an employer give an employee the right to explain
the positive test, whereas the NFL doesn't accept excuses.



The NFL tried arguing that its collectively bargained drug policy
would be upended if it had to hew to the laws of each state where it
does business. (In fact, only two other states, Maryland and North
Carolina, have drug laws that could be considered in conflict.) The
NBA, NHL and USADA, along with MLB, filed supporting briefs.



Monday, the Supreme Court refused to hear the NFL's appeal. In a
statement, the NFL replied: "The decision does not address in any way
the merits of the claims made by the players, which have been rejected
by every federal and state court to consider them."



The ruling ensures that Williams and another teammate who also tested
positive, DT Pat Williams, get to play out the season. But the NFL is
worried about a lot more than those two players. The way league
officials look at this, today it's the league's drug testing policy
that is coming under fire.



What's around the corner tomorrow? Its concussion policy?



The NFL isn't without options. It can take the narrowest route and go
back to the Minnesota court to argue that its policy isn't actually in
conflict. (That's probably the most likely scenario.) Failing that, it
can also ask the state's legislature to carve out an exemption
specifically for athletes.



But neither will achieve its larger goal. That's why the league is
also lobbying Congress to pass a law that will give its collective
bargaining agreement priority over any state laws that conflict with
it. The problem, say critics, is that would literally put the NFL
above the law.



5. USADA v. LaShawn Merritt
A lot of Olympians are eyeing the recent arbitration decision in the
case of LaShawn Merritt, the reigning 400m Olympic gold medalist,
which left him banned for 21 months for three positive drug tests. The
panel gave Merritt leniency because it found that his elevated levels
of testosterone came from his purchase of ExtenZe, a sexual
performance aid that he bought at a 7-Eleven store.



The arbitrators also ruled that that Merritt should be eligible for
the London Olympics when his ban ends, since "enhancing his sports
performance was the last thing on Mr. Merritt's mind when he purchased
ExtenZe."



Trouble is, their influence ends on our end of the pond.



The International Olympic Committee issued a curt response to the
decision, saying Merritt shouldn't bother packing his bags. "The IOC
rule states very clearly that any athlete sanctioned for six months or
more will be banned from participation in the next edition of the
Games," IOC spokesman Mark Adams told The Guardian.



Los Angeles-based defense attorney Howard Jacobs says the rule is ripe
for challenge in the courts. "The rule is arbitrary, and there are
dozens of Olympic hopefuls who are watching how this case will play
itself out in terms of someone challenging the IOC," he says.