NCAA athletes obtain class certification

Posted on: December 13th, 2013 by Steve Larson

Fotolia FootballA California federal judge has certified a class of Division I men’s basketball and football players accusing the National Collegiate Athletic Association of using their names and likenesses without compensation, ruling there was no intra-class conflict between high-value and lesser-known athletes.  U.S. District Judge Claudia Wilken said the putative class met an adequacy requirement needed for certification because the plaintiffs proposed allocating damages equally among all the class members.

The NCAA had argued there was a conflict of interest because star athletes would claim they were entitled to a larger share of damages for use of their names and images in commercial exploitations like Electronic Arts Inc.’s yearly college football video game.

But Judge Wilken called the alleged conflict “illusory,” saying plaintiffs alleged harm to competition within a group licensing market, not an individual licensing market, thus rendering irrelevant any differences in the value of each class member’s individual publicity rights.

“No matter how damages were divided at that stage, the entire class would still share an interest in establishing that the NCAA restrained competition in the relevant markets and that it lacked a pro-competitive justification for doing so,” she ruled.

The athletes accuse the NCAA of a price-fixing scheme in which the league made billions of dollars by not paying college athletes for the use of their names and likenesses in the license and sale of game footage, video games, trading cards and other products. Plaintiffs also accuse the NCAA of prohibiting players from exercising their publicity rights.

The student-athletes’ class action initially named EA and the Collegiate Licensing Co. as co-defendants, but those parties reached a settlement in which they reportedly agreed to pay $40 million to thousands of current and former NCAA student athletes over the antitrust claims.

In late October, Judge Wilken refused to throw out the class action, saying the NCAA’s application of a U.S. Supreme Court decision was too broad and didn’t justify throwing out the student-athletes’ case. Judge Wilken also rejected the NCAA’s arguments that the First Amendment, the Copyright Act and California state law bar the student-athletes’ suit.

While the judge granted the student athletes another victory, she denied their request to certify a damages subclass, which means the athletes won’t be allowed to recoup payments for past use of their names, images and likenesses as a group.

Judge Wilken said the student-athletes hadn’t identified a feasible way to determine which members of the subclass were actually harmed by the NCAA’s allegedly anticompetitive conduct with the video games and other products.