Athletes Challenge NCAA Bid to Strike Class Status

(CN) - Current and former student athletes insist that they have standing to sue the NCAA as a class over the refusal to compensate them for the use of their images.

In a 2009 class action , former UCLA basketball star Edward O'Bannon claimed that the National Collegiate Athletic Association forced students to sign the misleading Form 08-3a if they wanted to play NCAA sports.

The form "commercially exploits former student athletes" by giving the NCAA the right to profit from their images without compensation, long after the athletes have left school, according to the complaint.

Athletes say that the NCAA, Electronic Arts and the Collegiate Licensing Co. violated federal antitrust laws and conspired to restrain trade by fixing their compensation at $0.

The plaintiffs seeking antitrust damages want the NCAA to disclose revenue data from its members to calculate what they are owed. But the NCAA claims that the information is privileged and not relevant.

U.S. District Judge Claudia Wilken in Oakland, Calif., faces a motion to certify of two classes: a declaratory and injunctive relief class of NCAA basketball or football players whose images were used after they stopped playing college sports; and an "antitrust damages" class of athletes whose images have been licensed or sold.

The NCAA moved to strike, challenging the claims as legally and procedurally defective.

In an opposition motion filed Thursday, the antitrust plaintiffs called the NCAA's maneuver "unprecedented, unwarranted, and evidences a fundamental misunderstanding of how class actions work."

"Tellingly, defendants cite no case in which a court has ever done what defendants are asking this court to do - strike a class certification motion and supporting papers - and this court should not be the first," according to the filing authored by Hausfeld attorney Michael Lehmann.

The athletes have confined their claims to those stemming from game footage and likenesses used in video games. They are not pursuing claims related to bobblehead dolls or jerseys.

Though the NCAA says that the motion to certify the classes differs significantly from the amended class action, the plaintiffs say that the same antitrust claims are at issue.

The athletes also dispute the NCAA's claim that the court has adopted the plaintiffs' inconsistent position, and the class should be stricken under the doctrine of judicial estoppel.

"If the [antitrust plaintiffs] were secretly attempting to pursue some broader case relating to live broadcast revenues, as defendants now claim, then they gained no advantage from the very limited discovery relating to television contracts that Magistrate Judge Cousins and other judges granted," Lehmann wrote.

"The defendants will have another chance to attempt yet again to dismantle this case in their upcoming dispositive motions," he added. "Therefore, consideration of their arguments here is premature."

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