O’Bannon Case Update: Class Certification Hearing

Last week was a significant one for the ongoing In Re NCAA Student-Athlete Name & Likeness Licensing Litigation (i.e. the O’Bannon case), as US Federal Court Judge Claudia Wilken heard oral arguments on the issue of whether or not to certify the plaintiffs as a class.  Let’s take just a minute and review why that’s important and what it means.  Generally, an individual plaintiff brings a claim against a defendant in order to rectify a harm done to that plaintiff.  However, in certain circumstances the rules allow multiple plaintiffs to bring their claims together.  These circumstances are found when there are a large number of plaintiffs with similar or common claims; think the movie Erin Brockovich which involved a community of plaintiffs whose groundwater had been contaminated by a gas/electric company.  A class of plaintiffs creates much greater risk for the defendants (i.e. NCAA) in the way of enormous potential money damages, and enables the plaintiffs to pool their claims and benefit from top notch representation among other advantages.



Judge Wilken had already requested and received a large volume of written material from all the parties in the case, as is common prior to oral hearings.  Most of those submissions were and are under seal, but we did get a glimpse at a few items.  They are not helpful to the defense, as emails seem to suggest a concerted effort was made between the NCAA and EA Sports to make sure the video game avatars resembled the actual players.



During the hearing that took place June 20th, Judge Wilken already seemed drained by the amount of written material already submitted, the number of attorneys in the room (estimates were at 25) and the overall largeness of the case.  At one point an attorney for the NCAA began by saying he had five points to cover, and the Judge quickly asked him to simply provide a summary.  She also stopped an O’Bannon attorney from presenting a slide show he had prepared.

“I’ve spent so much time reading the stuff you’ve given me, I don’t want to read any more.” U.S. District Court Judge Claudia Wilken

Last fall, the O’Bannon plaintiffs made a dramatic change to their claims by amending their complaint to add current student-athletes and live broadcast television revenue to the case.  Prior to that only former student-athletes were part of the plaintiff class and their claims had been limited to revenues generated post-college from video games and game re-runs (e.g. ESPN Classic replays).  However as of now, a current student-athlete is not actually a party to the suit.  Judge Wilken has asked the plaintiffs to make this addition, which means in the very near future we will have a name and face for the current student-athletes in this case.  At one point in the hearing, the plaintiffs suggested they had not added a current student-athlete for fear he would be retaliated against.  The NCAA made clear that would not be the case, though the plaintiffs suggested they may ask to get that assurance in writing.

Another interesting point in the hearing came when the NCAA argued they don’t license the athletes image/likeness to TV networks, but rather access to the venues themselves.  Judge Wilken seemed to laugh at this suggestion.  This issue will no doubt be debated as the case proceeds, but doesn’t seem to be as critical to the issue of the hearing which was whether or not to certify the plaintiffs as a class.  EA Sports apparently was more of a bystander during the hearing, and seemed to use that to argue they shouldn’t even be part of the litigation any longer, essentially pointing the finger at the NCAA.

Judge Wilken did spend time addressing the most critical point in the class certification decision, that of whether the common issues prevail over the individual ones.  More specifically, the plaintiffs are asking for a 50% share of the television revenue, that would be split evenly among the current student-athletes.  The Judge wondered if the athletes could license their own TV rights, wouldn’t the star quarterback command a larger share of the pie than the benchwarmer?  How Judge Wilken reconciles this question with the other issues will likely determine her ultimate ruling.



In the coming days or weeks we should see an amended complaint from the plaintiffs which names a current student-athlete as the class representative.  It will be interesting indeed who is chosen for this role, the response of his teammates, school and fans, and perhaps most importantly what level of star he is.  If a star quarterback is chosen, does that draw attention to the fact he may not represent the benchwarmer?  Similarly if a relatively unknown offensive lineman is chosen, does that draw attention to the fact he may not represent the star quarterback?

Judge Wilken could rule any time on whether or not to certify the plaintiff class, though most observers seem to think it will take her at least a month or two.  The stakes are high with the ruling, as a decision not to certify the class could end the lawsuit right there.  The result of that ruling would be an individual plaintiff (O’Bannon, John Doe current student-athlete, etc.) would have to continue the lawsuit alone.  Whether anyone would actually do that is in doubt, and an individual plaintiff would certainly be less threatening to the NCAA.

A favorable ruling for the plaintiffs may drive the NCAA to consider some type of settlement solution, as the downside of a jury verdict against them is incredibly large (potentially hundreds of millions and a dramatic change to its core structure).  However, the NCAA is not in the habit of settling cases, and has a pretty good track record for thwarting legal challengers.  So don’t be surprised to see the NCAA continue to fight regardless of the class certification ruling.

The jury trial in this case is currently set for June 2014, but what we learn in the next month or two may tell us all we need to know.

photo credit: Jeremy Riel via photopin cc

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