Judge lets class-action efforts in O'Bannon case go on

Steve Berkowitz USA TODAY Sports | USATODAY

A federal judge in California has ruled that lawyers representing current and former college athletes in a potentially landmark anti-trust lawsuit against the NCAA over use of their names and likenesses can proceed with efforts to have the case certified as a class action and ultimately to gain billions generated by the athletes' play.

The NCAA and its co-defendants had filed a motion in October asking U.S. District Court Judge Claudia Wilken to end the class-certification process, in part because they contended the plaintiffs had changed their legal strategy in a way that was unfair.

However, in a ruling Tuesday, Wilken wrote that "this is not reason to preclude Antitrust Plaintiffs from moving for class certification; instead, these contentions are more properly considered as arguments supporting denial of the motion for class certification on its merits."

The judge gave the NCAA and its co-defendants -- video-game maker Electronic Arts and the nation's leading collegiate trademark licensing and marketing firm, Collegiate Licensing Co. -- additional opportunities to file papers arguing against class certification. But she also wrote the defendants also must argue why the plaintiffs should not be allowed to amend their legal approach to the case, if she determines that such a change has actually occurred.

In addition, Wilken set a court hearing on the class-certification matter for June 20 in San Francisco.

In short, the judge has decided she will give full consideration to the athletes' bid for class certification. If successful, it would force the NCAA, Electronic Arts and Collegiate Licensing Co. to defend a case in which the plaintiffs have said they will be seeking billions in damages on behalf of college football and men's basketball players.

Lawyers for the named plaintiffs -- among them former basketball stars Ed O'Bannon, Oscar Robertson and Bill Russell – also have said they want to fundamentally change how athletes are compensated for playing these sports in college.

In a statement, NCAA Chief Legal Officer Donald Remy said: "Although our motion to strike was denied, the Judge has signaled skepticism on plaintiff's class certification motion and recognized the plaintiffs' radical change in their theory of the case. This is a step in the right direction toward allowing the NCAA to further demonstrate why this case is wrong on the law and that plaintiffs have failed to demonstrate that this case satisfies the criteria for class litigation."

The plaintiffs' lawyers said that while they are seeking monetary damages on behalf of former athletes, they "do not seek compensation to be paid to current student-athletes while they maintain their eligibility." Rather, they see a system under which "monies generated by the licensing and sale of class members' names, images and likenesses can be temporarily held in trust" until the end of the college playing careers.

In a case that began in 2009, the plaintiffs allege that the defendants violated anti-trust law by conspiring to fix at zero the amount of compensation athletes can receive for the use of their names, images and likenesses in products or media while they are in school. They additionally allege the athletes are required to sign forms under which they relinquish in perpetuity all rights pertaining to the use of the names, images and likenesses in ways including TV contracts, rebroadcasts of games and video game, jersey and other apparel sales.

Under anti-trust law, the statute of limitations on damages is four years back from the date of filing.

Thus, the athletes' lawyers are seeking a portion of the revenues the NCAA and Division I schools and conferences have gotten from TV contracts and from the licensing and royalties related to video-game sales from 2005 to present. Based on expert analysis, the plaintiffs want a 50-50 split of the revenue for telecasts and a one-third split for video games.