Judge Certifies Athlete Class Suing the NCAA

     (CN) – A group of Division I NCAA football and basketball players whose likenesses were used in video games and game footage can sue the NCAA as a class, a federal judge ruled.
     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.
     “Although the First Amendment – unlike the California Civil Code – does impose certain limits on the right of publicity in every state, the NCAA has not shown that those limits preclude plaintiffs from asserting publicity rights in the specific types of broadcasts at issue here,” the 24-page opinion states.
     Wilken added that “neither the Supreme Court nor the federal courts of appeals have ever squarely addressed whether the First Amendment bars athletes from asserting a right of publicity in the use of their names, images, or likenesses during sports broadcasts.”
     A month earlier, the NCAA’s alleged co-conspirators, Electronic Arts and Collegiate Licensing Corp. settled with the athletes.
     With their claims still pending against the NCAA, the athletes sought to certify two classes: a right-of-publicity class and an antitrust class.
     While the latter class claims that the company conspired with Electronic Arts and College Licensing Corp. to restrain competition for the use of their names, images and likenesses, the former alleges violation of the athletes’ common-law rights of publicity.
     Only four athletes are part of the right-of-publicity class, while the remaining 21 belong to the antitrust class.
     The athletes sought to certify a class for injunctive relief, and a subclass to pursue monetary damages.
     The injunctive relief class demands a court order ending the prohibition on athletes entering into licensing deals for the use of their names and likenesses in video games and broadcasts.
     Wilken found Friday that the injunctive relief class can proceed, but the damages subclass did not satisfy the needed requirements for a class action.
     “Their request for this injunction is not merely ancillary to their demand for damages,” she 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.”
     Wilken was not convinced, however, that the athletes had shown a realistic way to determine how the damages subclass was harmed by the NCAA’s actions.
     “Plaintiffs have not provided a feasible method for determining which members of the damages subclass would still have played for Division I teams – and thus, suffered the injuries alleged here – in the absence of the challenged restraints,” she wrote. “This shortcoming likewise contributes to the impossibility of determining which class members were actually injured by the NCAA’s alleged restraints on competition and, as such, precludes certification.”
     The athletes also did not present “a workable system” showing how they could determine which athletes actually played in televised games or which games were broadcast, the judge found.
     “Without a means of accomplishing these tasks on a class-wide basis, plaintiffs would have to cross-check thousands of team rosters against thousands of game summaries and compare dozens of game schedules to dozens of broadcast licenses simply to determine who belongs in the damages subclass,” Wilken wrote.
     The class that can proceed in the action is defined as current and former Division I football and basketball players “whose images, likenesses and/or names may be, or have been, included in game footage or in videogames licensed or sold by defendants, their co-conspirators, or their licensees” after the athletes’ NCAA career ended.
     Wilken ordered the plaintiffs to submit a 25-page brief within one week of the order, and for the NCAA to submit a reply brief by Feb. 3, 2014.
     A case-management conference is scheduled in Wilken’s courtroom on Feb. 20, 2014.

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