NCAA makes new effort to stop O'Bannon class action bid

Steve Berkowitz | USA TODAY Sports

Lawyers representing the NCAA in an anti-trust lawsuit concerning the use of college athletes' names and likenesses on Monday filed documents describing new evidence that they argue is fatal to the plaintiffs' pending bid to have the case certified as a class action.

Currently the case involves former UCLA basketball star Ed O'Bannon and two dozen other current and former college football and men's basketball players taking on the NCAA. However, if U.S. District Judge Claudia Wilken grants class-action status, it could allow thousands of former and current football and men's basketball players to join the case, creating the possibility of a damages award in the billions of dollars.

First, though, Wilken must determine that the case meets criteria that are set under the federal rules of civil legal procedure. The criteria basically require that there be questions of law or fact that are common to the prospective wider class of plaintiffs and that those questions are greater in number than any questions that affect individual members of the prospective wider class.

Although it would seem that the NCAA's rules about what athletes can receive for playing sports create an overriding common question, two of the named plaintiffs – former Connecticut basketball player Tate George and former Alabama football player Tyrone Prothro – said in depositions much earlier in the case that star players should be paid more than lesser players. That creates individual questions.

The plaintiffs countered with an expert who said that if the NCAA's restrictions on compensation for athletes were removed, the newly available pool of money from television rights and other licensing fees would be shared equally among all the athletes.

In Monday's filing, lawyers for the NCAA said new reports and recent depositions from another of the plaintiffs' experts show that if the NCAA's restrictions on compensation for athletes were removed, "only some – not all – licensing revenue would (be) shared equally and that the lion's share of such revenue would have been paid entirely to 'star' student-athletes." This would "reduce the pool of damages available to most of the class, thereby giving rise to conflicting incentives."

As a result, the NCAA's lawyers wrote, the plaintiffs' proposed class "cannot be certified."

Michael Hausfeld, a lead attorney for the plaintiffs, could not be immediately reached for comment.