Athletes Seek to Certify Antitrust Class Action

     OAKLAND, Calif. (CN) – College athletes seek class certification in a lawsuit claiming they were cheated out of a cut of the profits from TV broadcasts and video games that used their names and images.
     The National Collegiate Athletic Association, Electronic Arts Inc. and College Licensing Company were accused of orchestrating a “horizontal and vertical price-fixing conspiracy and a group boycott” in an antitrust action led by former UCLA basketball star Ed O’Bannon.
     The complaint alleged that the NCAA forces athletes to sign away the rights to their own images, cheating them out of a share in the profits from DVD and video game sales.
     In February, U.S. District Judge Claudia Wilken refused to strike the athletes’ motion for class certification, and last week the athletes filed a reply brief in support of their motion.
     A hearing on the certification is scheduled for June 10.
     The athletes say the NCAA tried to justify the conspiracy using the association’s amateurism rules, which bar players from receiving money during their eligibility years.
     The defendants “largely (but not totally) sidestep” the issue of conspiracy by trying to defeat class certification, the athletes claim. (Parentheses in original.)
     For example, the defendants claimed that the identities of the proposed class members are insufficiently ascertainable and that the lawsuit lacks common questions required to unite the class.
     “Participants in the proposed classes can be readily identified from defendants’ own records, a fact that they conceal from the court,” the athletes argue. “The existence of common questions is clear and among them are the questions relating to defendants’ failure to pay former [student athletes] for use of their [names, images and likenesses] in game footage and video games and their justification of this practice on the basis of the NCAA’s amateurism rules.”
     The proposed class “is appropriate for certification … because it seeks prospective relief on behalf of current and former [student athletes], all of whom are being injured by defendants’ ongoing conduct,” the athletes say in their brief.
     Electronics Arts and the College Licensing Company argued separately that they were not part of any conspiracy and were only following the NCAA’s rules.
     But the athletes said these arguments “are basically a rehash of their prior unsuccessful dismissal motions and are inconsistent with this court’s prior orders, settled case law, and their own internal documents.
     “There is a wealth of evidence from defendants’ own documents and testimony that will be used to show, on a common basis, that EA, CLC, and the NCAA colluded” to use former and current student athletes’ names and images in their video games “without compensation,” the athletes say.
     “These factual issues are therefore predominantly common ones.”

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