(CN) – Attorneys for a group of Division I NCAA football and basketball players whose likenesses were used in video games and game footage urged a federal judge to issue an injunction in their favor.
Since 2009, a group of former NCAA athletes have been embroiled in a legal battle over the use of their images in video games, merchandise and other promotional materials.
In the first complaint, former UCLA basketball player Ed O’Bannon said the NCAA violated his and other athletes’ right to make money off their likenesses.
U.S. District Judge Claudia Wilken refused to dismiss the athletes’ third amended consolidated class complaint last month.
Earlier this month, Wilken partly certified a class of athletes seeking injunctive relief against the NCAA.
That class seeks an order ending the prohibition on athletes entering into licensing deals for the use of their names and likenesses in video games and broadcasts.
“Their request for this injunction is not merely ancillary to their demand for damages,” Wilken wrote. “Rather, it is deemed necessary to eliminate the restraints that the NCAA has allegedly imposed on competition in the relevant markets. 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.”
Attorneys for the athletes moved for summary judgment Friday and filed a memorandum in support of that end.
Because the athletes cannot play sports if they do not comply with the NCAA licensing rules, there is a restraint on them that violates federal antitrust laws, attorney Michael Lehmann of Hausfeld LLP argued in the memo.
“It is important to emphasize that the antitrust plaintiffs are not advocating an end to the principle of amateurism, nor are they advocating salaries for student-athletes,” Lehmann wrote.
“This motion is confined to a quick look with respect to the restraint against compensation for commercial use and licensing of student-athletes’ names, images and likenesses.”
Instead of relying on empirical evidence, the NCAA and its expert used “apocalyptic assertions that intercollegiate sports will cease to exist, or cease to exist in the same successful form, if member schools or conferences cannot prohibit compensation,” Lehmann wrote.
Among other things, the attorney argued that the NCAA’s expert failed to show that the concept of amateurism promoted competition in the markets.
“Indeed, ‘amateurism’ appears by definition to refer to restraining competition for student athletes,” Lehmann wrote.
The attorney said the NCAA’s expert could not prove that the concept of amateurism is incompatible with compensating athletes for their images.
The integration of education and athletics also does not justify the NCAA’s restraint on the athletes’ competition, Lehmann argued.
“There is no evidence to suggest that compensating student-athletes for the use of their names, images and likenesses would destroy the integration of athletics and education,” the attorney wrote. “Student athletes will still have to enroll in school, go to class, and meet minimum academic requirements (among other things).” (Parentheses in original.)
A hearing on the motion for summary judgment is scheduled for Feb. 20, 2014, in San Francisco.
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