NCAA Loses Bid to Delay or Alter Antitrust Trial

     (CN) – The National Collegiate Athletic Association failed to persuade a federal judge to postpone or pare down an antitrust trial set for next month, in which it’s accused of conspiring to block college athletes from licensing their own names and images.
     The legal battle, now in its fifth year, involves the NCAA’s use of athletes’ images in video games, merchandise and other promotional materials.
     In the first of two complaints, former University of California Los Angeles basketball player Ed O’Bannon accuses the NCAA, Electronic Arts and the Collegiate Licensing Co. of using athletes’ names and likenesses in video games without compensation or permission.
     A second lawsuit, filed by former Nebraska quarterback Sam Keller, claims the NCAA conspired with EA and CLC to restrain competition in two markets: the “college education” market of competing to recruit student athletes for men’s football and basketball, and in the “group licensing market,” where broadcasters and video-game makers compete for the right to use players’ and teams’ names.
     The lawsuits were initially consolidated, but U.S. District Judge Claudia Wilken has since separated them for trial. Keller’s antitrust claims are set for trial on June 9, while O’Bannon’s right-of-publicity claims will be heard in March 2015, the judge ruled Friday.
     Both groups notified the court in September 2013 that they had reached a settlement with all defendants but the NCAA.
     The NCAA told the court that it cannot try issues of antitrust before any right-of-publicity claims, because the Seventh Amendment to the U.S. Constitution requires that claims for damages must be tried before claims of injunctive relief, assuming that the claims overlap.
     Wilken was unconvinced.
     “[T]he NCAA has not demonstrated that these claims do, in fact, raise overlapping issues,” she wrote. “More importantly, even if antitrust plaintiffs’ claims and right-of-publicity plaintiffs’ claims did require the adjudication of some common issues, the Seventh Amendment would not require that they be tried together.”
     Had the complaints not been consolidated, Wilken said, they would have continued against the NCAA without “running afoul of the Seventh Amendment.”
     She also rejected the NCAA’s contention that the antitrust claims related to video games should be tried later in the publicity rights case to save time and money, as those claims overlap.
     “This argument is not persuasive,” Wilken wrote.
     Trying the claims separately “would inevitably lead to greater duplicative litigation and wasted judicial resources,” she said.
     In a second order issued Friday, Wilken refused to let the NCAA appeal a portion of her April order, in which she ruled partly in the athletes’ favor.
     The NCAA took issue with Wilken’s finding that “the First Amendment does not guarantee media organizations an unfettered right to broadcast entire sporting events without regard for the participating athletes’ rights of publicity.”
     It argued that this construed broadcasters’ First Amendment rights too narrowly.
     But Wilken said the First Amendment issue does not “materially advance the ultimate termination” of the antitrust complaint.
     “In this case, an interlocutory appeal is not appropriate because the ruling that the NCAA seeks to appeal does not involve a controlling question of law,” she explained.
     “[E]ven if the Court of Appeals were to support the NCAA’s position on the First Amendment question, that ruling would not, on its own, suffice to dispose of any of antitrust plaintiffs’ claims in this action.”

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