Bloomberg News

NCAA Loses Bid to Dismiss Ex-Athletes’ Antitrust Claims (3)

October 25, 2013

The National Collegiate Athletic Association lost a bid to dismiss antitrust claims in a lawsuit brought by ex-student athletes over the use of their images and likenesses on television and in video games.

U.S. District Judge Claudia Wilken in Oakland, California, today denied the NCCA’s request to throw out claims by the former college basketball and football players that the association conspired to block them from commercial use of their names, images and likenesses.

A four-year-old lawsuit by former University of California-Los Angeles college basketball forward Ed O’Bannon challenges the traditional notion that only the NCAA, conferences and schools can profit from selling the rights to players’ likenesses used in broadcasts and other media.

The Indianapolis, Indiana-based NCAA says the claims are trumped by its rules designating college athletes as amateurs. The U.S. Supreme Court in a 1984 ruling upheld those rules, which barred any payment to student players in order to preserve the quality and character of college sports.

Wilken said rules maintaining “the revered tradition of amateurism in college sports” don’t “stand for the sweeping proposition that student-athletes must be barred, both during their college years and forever thereafter, from receiving any monetary compensation for the commercial use of the names, images and likenesses.”

Antitrust Claims

Wilken said the NCAA may still challenge the athletes’ antitrust claims at a later stage of the case, and the players will need to show evidence that archival game footage and live game broadcasts were used primarily for commercial purposes. She gave the NCAA 14 days to respond to the athletes’ amended complaint.

Donald Remy, NCAA’s chief legal officer, said the antitrust issues in the case will be decided later.

“We continue to believe the rules establishing the revered traditions of college sports are fully consistent with the antitrust laws, as the U.S. Supreme Court and other court have repeatedly made clear,” said Remy by e-mail. “We expect to seek judgment in our favor on these new live broadcast claims in our upcoming summary judgment motion.”

Wilken is weighing the players’ request to certify the lawsuit as a class action, or group, lawsuit that would cover tens of thousands of athletes whose interests would be represented in a single case.

Video Games

O’Bannon alleged that the NCAA conspired with video game maker Electronic Arts Inc. (EA:US) to restrain athletes’ ability to profit from the use of their likenesses. EA announced in September that it settled claims against it and will pay athletes $40 million. The second-largest U.S. video-game publisher also said it was canceling its college football title for next year because of legal issues.

“It’s a fairly one-sided order in favor of the student athletes and opens the pathway to have their claims under antitrust laws to be heard,” Robert Carey, O’Bannon’s attorney said by phone. A trial has been scheduled for 2015, he said.

The case is In re NCAA Student-Athlete Name & Likeness Licensing Litigation, 09-cv-01967, U.S. District Court, Northern District of California (Oakland).

To contact the reporter on this story: Karen Gullo in federal court in San Francisco at Or kgullo@bloomberg.net

To contact the editor responsible for this story: Michael Hytha at mhytha@bloomberg.net


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