A day after the plaintiffs' lawyers in an antitrust lawsuit against the NCAA and two co-defendants filed an amended complaint regarding the use of athletes' names, images and likenesses, the association's general counsel responded by acknowledging the threat the case presents to the collegiate model of amateurism.
"College sports today are valued by the student-athletes who compete and all of us who support them," Donald Remy, the NCAA's vice president for legal affairs, said in a statement. "However, the plaintiffs' lawyers in the likeness case now want to make this about professionalizing a few current student-athletes to the detriment of all others. Their scheme to pay a small number of student-athletes threatens college sports as we know it.
"In particular, we would lose the very real opportunity for at least 96% of NCAA male and female student-athletes who do not compete in Division I men's basketball or FBS football to play a sport and get an education, as they do today."
Michael Hausfeld, an attorney for plaintiffs, dismissed Remy's comments as "nonsense" and "a total scare tactic."
Hausfeld contended that giving athletes revenue generated from their sport does not make them a professional as long as they are students and matriculating at the school.
"It's hypocritical. ... It's all they have left," Hausfeld said in a phone interview with USA TODAY Sports. "They're desperate. That statement was an expression of desperation."
The lawsuit, filed in 2009, alleges the defendants conspired to set at zero the compensation football and men's basketball players could receive from the use of their names, likenesses and images while they are in school. Among its named plaintiffs are former UCLA basketball star Ed O'Bannon and Basketball Hall of Famers Bill Russell and Oscar Robertson.
The lawsuit is awaiting a decision from U.S. District Court Judge Claudia Wilken regarding its bid for class-action certification. Both sides made arguments in federal court in California on June 20.
If granted, the class-action status could potentially bring thousands of former and current football and men's basketball players into the case and put billions of dollars in damages at stake.
Six active players joined the lawsuit Thursday. The plaintiffs' lawyers also amended their complaint to include several new allegations against the NCAA, video-game manufacturer Electronic Arts and the nation's leading collegiate trademark licensing firm, Collegiate Licensing Co. (CLC).
In a July 5 ruling, Wilken allowed the plaintiffs to amend their complaint to include new plaintiffs and for their attorneys to address some arguments made by the NCAA, EA and CLC.
Arizona linebacker Jake Fischer, Arizona kicker Jake Smith, Clemson defensive back Darius Robinson, Vanderbilt linebacker Chase Garnham, Minnesota tight end Moses Alipate and Minnesota wide receiver Victor Keise joined the lawsuit.
The amended lawsuit includes new material likely to escalate and already increasingly contentious dispute. Among the plaintiffs' allegations:
-- Former NCAA president Myles Brand "conceded" in "public remarks" in 2008 that "(t)he right to license or sell one's name, image and likeness is a property with economic value."
The allegation comes in response to an argument made by the NCAA in the June hearing that state laws and legal precedents say athletes have no property rights for appearing in live, unscripted events and therefore have nothing that the NCAA and its member schools are infringing upon.
-- EA and CLC allegedly "actively lobbied for, and obtained, administrative interpretations of those rules that permitted greater uncompensated exploitation of student-athletes' names, images and likenesses. Where their formal efforts were unsuccessful, EA and CLC obtained agreement from the NCAA to permit greater uncompensated exploitation of student-athletes' names, images and likenesses notwithstanding the rules."
EA and CLC previously made an argument that as business partners of the NCAA, they simply followed the NCAA's rules pertaining to the use of athletes' names and likenesses. Several additional allegations from the plaintiffs seek to make the case that the NCAA, EA and CLC conspired "to usurp the student-athletes' name, image and likeness rights without compensation to the athletes."
Rachel Axon and Steve Berkowitz, USA TODAY Sports