Bloomberg News

NCAA Can Be Sued by Athletes as Group Over Use of Images

November 09, 2013

The National Collegiate Athletic Association can be sued as a group by former college athletes seeking the right to negotiate licensing deals for the use of their images, a federal judge ruled.

U.S. District Judge Claudia Wilken in Oakland, California, also rejected the athletes’ request to jointly seek revenue from broadcasts they appeared in.

Yesterday’s ruling, while falling short of a potential windfall from past game broadcasts, gives a boost to the plaintiffs challenging the tradition of amateurism in which only the NCAA, conferences and schools can profit from selling players’ likenesses, Rob Carey, an attorney for the athletes, said in a phone interview.

Wilken granted class-action status to thousands of current and former student athletes who are asking the court to order the NCAA not to block them from entering into licensing deals to get paid when they appear in game footage, television broadcasts or video games. The injunction request will be considered later.

An injunction would be “needed to eliminate the restraints that the NCAA has allegedly imposed on competition,” Wilken said. “Without the requested injunctive relief, all class members -- including both current and former student-athletes -- would potentially be subject to ongoing antitrust harms resulting from the continued unauthorized use of their names, images and likenesses.”

Wilken said the former players didn’t present enough evidence to justify certifying them as a class to seek damages for past broadcasts.

Legal Claims

Class certification allows people who haven’t filed a lawsuit to be represented in a single case because their experiences and legal claims are similar. Class-action status is less expensive for plaintiffs than filing multiple lawsuits and provides leverage in settlement talks.

The plaintiffs had sought certification of a class of former basketball and football players seeking damages for the use of their images, likenesses or names in game footage or in video games licensed or sold by the NCAA since July 2005.

Wilken said she couldn’t certify a class for former players pursuing damages because of the difficulty in determining which athletes were harmed by the NCAA’s policies.

“They have failed to satisfy the manageability requirement because they have not identified a feasible way to determine which members of the damages subclass were actually harmed by the NCAA’s allegedly anticompetitive conduct,” she said.

‘One Step’

Donald Remy, chief legal officer for the NCAA, said in a statement that the ruling is “one step closer to validating” the organization’s position that the student-athletes’ claims are wrong.

“We are pleased that the court correctly found that conducting a class-wide trial for claimed damages for student-athletes who played college football and men’s basketball going back nearly a decade would be completely unmanageable and unprecedented,” Remy said. “The plaintiffs in this case were seeking substantial damages based on erroneous theories for maintaining a class.”

Carey said the ruling “could still result in a radical change” in the way the NCAA operates. “If the athletes prevail, it will have a complete breakdown on how the NCAA operates.”

Plaintiffs including former college basketball star Edward O’Bannon sought to represent all former student athletes in the U.S. who competed in Division I basketball or NCAA football’s top echelon and whose images or names have been included in game footage or video games since July 2005.

Basketball Championship

O’Bannon played at the University of California at Los Angeles and led the Bruins to the NCAA basketball championship in 1995. He sued the NCAA and its licensing company four years ago alleging that they agreed to block him and other former college athletes from getting paid for their likenesses in Electronic Arts Inc. (EA:US) sports video games after they left school.

O’Bannon’s case was combined with another lawsuit against NCAA and Electronic Arts Inc. for using athletes’ likenesses in video games without permission.

Electronic Arts 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.

The NCAA and some regional athletic conferences withdrew their support for the game, the Redwood City, California-based company said Sept. 26.

The case is Keller v. Electronic Arts Inc., 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 kgullo@bloomberg.net

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


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