With the ruling that the plaintiffs in the case of Ed O’Bannon vs. the NCAA, EA Sports and Collegiate Licensing Company would be best served to add a current student-athlete to its case, representatives stated that they would need the NCAA to guarantee that the student-athlete would not be punished for their participation.
Earlier this week the NCAA responded in a letter to Michael D. Hausfeld of Hausfeld LLP (lead lawyer for the plaintiffs), vehemently denying the assertion that a current student-athlete would be unfairly punished for joining the lawsuit.
To be perfectly clear to you, yet again, the NCAA has not and will not retaliate against any student-athlete because he or she participates in litigation against the NCAA, including your lawsuit. Indeed, there have been dozens of cases brought by student-athletes, none of whom have claimed retaliation by the NCAA. Your July 8, 2013 request for a stipulation regarding hypothetical “retaliation” against plaintiffs is completely unnecessary and, given the NCAA’s prior representations on this topic, offensive. There is no good faith basis for your contention that a current student-athlete participating in litigation against the NCAA has any worry of “retaliation, intimidation or coercion” from the NCAA. We have repeatedly made it clear to you in the course of this litigation that participation in a lawsuit against the NCAA has no effect on eligibility, and we can now only conclude that your letter has more to do with grandstanding for the press than actual concern for any potential current student-athletes seeking to join your lawsuit, or any attempt to move this litigation to a just conclusion.
The full letter can be read here.
The future status of the current student-athlete(s) has been a concern since U.S. District Judge Claudia Wilken made the ruling that the plaintiffs would be allowed to make the addition before she decides whether or not the suit will receive class action certification.
But while the NCAA stated that it would not act in a malicious manner towards a current student-athlete that joins the suit, they did close the letter to Hausfeld with the following paragraph:
Finally, while the NCAA has no reason to believe that its member institutions, conferences, athletic departments or coaches would take any action against a current studentathlete who chose to participate in this litigation, we must again remind you that we represent only the NCAA and cannot speak (or sign stipulations) for NCAA schools, conferences, athletic departments or coaches who are not present before the Court. We have no basis or authority to make any representations on behalf of our member institutions, although we are not aware of any facts that would suggest that “retaliation” against a current student-athlete who joined your litigation would be a risk.
Essentially it’s the “well we won’t do anything, but if one of our members were to then that’s something you’d need to take up with them” angle. How much of an impact will that have on a current student-athlete’s willingness to join the lawsuit is the next question that will be asked in determining whether or not the plaintiffs can make the addition.
Ultimately Judge Wilken will make the decision as to whether or not this case should receive class action certification, with the plaintiffs hoping that she’ll grant the request.
Raphielle can be followed on Twitter at @raphiellej.