OAKLAND, Calif. (CN) - College athletes should get paid when their names and images appear in videogames and broadcasts, attorneys for a class of former athletes argued in a response filed this week.
Since 2009, a group of former college athletes have been embroiled in a legal battle over the use of their images in videogames, merchandise and other promotional materials. In the first complaint, former UCLA basketball player Ed O'Bannon said the National Collegiate Athletic Association violated his and other athletes' right to make money off their likenesses.
U.S. District Judge Claudia Wilken refused to dismiss the former athletes' third amended class action in October 2013. The next month, she certified a class of athletes seeking an injunction against the NCAA that would end the prohibition on athletes entering their own licensing deals.
The NCAA moved for summary judgment in December, saying it does not exploit college athletes.
Glenn Pomerantz, an attorney for the NCAA, said student-athletes cannot prove that live broadcasts of football and basketball games are commercial in nature, which means the broadcasts are entitled to full First Amendment protections.
The association also argued that because it did not renew its contract with videogame maker Electronic Arts, the court should not grant the athletes an injunction based on "wholly hypothetical" transactions.
On Monday, the U.S. Supreme Court declined to let the NCAA intervene in a similar case brought by former college football quarterback Sam Keller. Electronic Arts had petitioned the high court on Sept. 23, 2013, three days before it settled with the athletes.
The NCAA has argued throughout litigation that the athletes' claims are barred by its principle of "amateurism," which it says does not violate antitrust laws.
This week, attorneys for the antitrust plaintiffs filed a partially sealed motion opposing the NCAA's bid for summary judgment.
Attorney Michael Lehmann of Hausfeld LLP said the NCAA broadcasts should be considered "commercial speech," thus the First Amendment does not bar the antitrust claims. He noted that "every participant in preparing and presenting the games for presentation is paid, except the student-athletes."
Lehmann also balked at the NCAA's "amateurism" argument, saying the concept "became harder to justify at the level of Division I men's basketball and football," which are increasingly commercialized.
"By the decade of the 2000s, [former NCAA President Myles] Brand began replacing the notion of the 'amateur model' with the 'collegiate model,' which was supposedly distinguishable from the model of professional sports," Lehmann wrote.
The athletes' attorney cited the findings of a 2009 NCAA task force on commercialism, which stated that "while participation is to be an avocation for students, college sports as an enterprise is a professional undertaking for everyone else."
"Furthermore, the generating of revenue must be guided by the same business principles as any commercial entity," the task force found.
Lehmann also rejected the NCAA's claim that fewer people would be inclined to watch college sports if its athletes were paid.
"If such fans were disgusted by the commercialism of 'amateur' sports, they would logically have ceased watching them long ago in the face of coaches being paid millions of dollars, the rampant commercialization of game telecasts, the repeated scandals of student athletes being paid under the table by colleges and universities, and the television contracts that match what is done with professional sports leagues," he argued.
Judge Wilken is scheduled to hear arguments Feb. 20.
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