Ed O'Bannon certification.jpg

Former UCLA basketball star Ed O'Bannon is the most prominent plaintiff among a group of about a dozen former college athletes who are suing the NCAA, Electronic Arts and Collegiate Licensing Company. (The Associated Press)

BIRMINGHAM, Alabama -- A pivotal point in the nearly 4-year-old Ed O'Bannon lawsuit against the NCAA occurs next Thursday in Oakland, Calif. Federal judge Claudia Wilken will hold a class-certification hearing that could back the NCAA into a corner if the case is certified, or significantly limit the NCAA's liability if she denies certification.

What's at stake?

The current model of college sports. If the case is certified and a jury later determines college athletes are entitled to a large percentage of revenue (i.e., television money), the economic model for college athletics would dramatically change.

About a dozen plaintiffs, including O'Bannon, former Nebraska quarterback Sam Keller, former Alabama football star Tyrone Prothro and NBA legends Bill Russell and Oscar Robertson, are suing the NCAA, Electronic Arts and Collegiate Licensing Company. The plaintiffs claim the defendants have illegally used the names and likenesses of football and men's basketball players in products and TV.

What happens at the hearing?

Both sides will be able to disclose their positions with Wilken, whose ruling about whether to certify would likely occur at a later date. She could offer clues Thursday on which way she's leaning.

The NCAA and its co-defendants are seeking a "special setting" for the hearing. The plaintiffs suggest they might openly reference documents currently under seal and have proposed that a portion of the hearing be closed to the public.

What's next?

A trial date is currently set for June 9, 2014, but it's quite possible this case may not be decided for many more years if there are appeals. The NCAA is now seeking to push the trial back three months to late August 2014.

What are the certification arguments?

In making their cases for and against certification, the plaintiffs cite 89 past cases and the NCAA cites 55. AL.com reviewed both sides' briefs for this hearing and interviewed attorneys for the plaintiffs and the NCAA to highlight some of the issues.

Issue: Can the complaint be amended?

Plaintiffs position: The plaintiffs amended their complaint last August. Not only are the plaintiffs seeking past damages for former college football and men's basketball players over use of their images, names and likenesses, but they also want damages for current athletes through television licensing.

Wilken has asked the plaintiffs what they would do if she determined that their current theories were not pled adequately in the amended complaint. The plaintiffs wrote that they would seek to amend the complaint to "conform to evidence obtained through subsequent discovery."

California federal judge Claudia Wilken is presiding over the O'Bannon suit. In January, Wilken denied the NCAA's early attempt to prevent the case from becoming a class action with current players.

Wilken also inquired what the plaintiffs would do if the request to amend the complaint was denied. The plaintiffs said they would ask her to grant certification based on theories Wilken concludes are part of the amended complaint.

"There are two exposures for the NCAA in certification, and everyone keeps forgetting this," Michael Hausfeld, the plaintiffs' lead attorney, said in an interview. "There's an injunctive class and request for a damaged class. The requirements for each are slightly different and the court could grant certification as to both or one and not the other."

NCAA position: The NCAA immediately opposed an amendment. Allowing it after the close of discovery would be "highly prejudicial and should not be granted liberally, if at all," the NCAA wrote.

The NCAA has described the amendment as a "radical change" in theories that make years of discovery irrelevant. In an interview, NCAA chief legal officer Donald Remy said the amended complaint puts the plaintiffs "in a very difficult position of why the class should be certified."

Issue: Individual vs. common complaints

NCAA position: The NCAA questions whether it's defending itself against a dozen or so former college athletes, or every former and current men's basketball and football players. The complaints are highly individualized and it's not sufficiently known the identifies of members of the proposed classes, according to the NCAA.

The NCAA contends that some members of a potential class have licensing rights worth more than others and would be disadvantaged by a group license that compensated all players equally. Class members are minimizing their claims to get a large class certified, which is not acceptable under federal law, the NCAA says.

For example, the NCAA argues, some class members got paid for licensing of video clips and game footage after their college career. Hearing evidence on whether any class members were or were not paid would require thousands of incidents to be examined and take significant trial time, the NCAA says.

Plaintiffs position: One sticking point is whether the plaintiffs' class would include every player on a roster or only those who appear in a game. The plaintiffs say not knowing all of the identifies of the class doesn't preclude certification.

The plaintiffs contend that a group license that disadvantages some athletes isn't an actual conflict, in part because players aren't currently paid in college. If the alleged conflict occurred, those issues would develop at the remedy stage and are insufficient to deny certification, the plaintiffs say.

Issue: Case precedent of Wal-Mart v. Dukes

NCAA position: The issue of common vs. individualized complaints can be found in Wal-Mart v. Dukes, which the NCAA cites more frequently than any case in its motion to deny certification of the O'Bannon suit.

In 2011, the U.S. Supreme Court tossed the class certification of a nationwide sex-discrimination brought against Wal-Mart on behalf of 1.5 million female employees. A federal judge had previously heard preliminary testimony in Dukes and certified the case to proceed to trial.

The O'Bannon plaintiffs "have the same problem as the Dukes plaintiffs," the NCAA wrote. "All of their 'common questions' relate to the existence or legality of NCAA rules, but there is no federal cause of action for being required to follow the NCAA's rules."

Instead, the NCAA says, the plaintiffs' antitrust claims must show athletes were restrained from engaging in trade in which they otherwise would have engaged. The NCAA claims there's no common proof showing the NCAA's rules prevented a class member from making a licensing sale.

The NCAA points to NCAA v. Board of Regents of University of Oklahoma, a pivotal Supreme Court ruling in 1984 that stripped TV rights from the NCAA, as the law permitting NCAA rules to keep college athletes from being paid.

Plaintiffs position: The plaintiffs claim there are many common questions. One contention they raise: The NCAA and its schools interpret NCAA Bylaws 12.5.1 and 12.5.2 -- legislation related to permissible and nonpermissible promotional activities -- as authorizing them to use athletes' names, images and likenesses without consent or paying players.

In Dukes, Hausfeld said, the Supreme Court noted the fundamental error for certification was that every Wal-Mart store manager could hire and promote employees without an implemented corporate-level policy that impacted each decision equally.

"Here, despite the fact it's an antitrust case and not an employment case, you have a single rule that's applied by the NCAA on all conferences and member institutions and licensees," Hausfeld said. "Athletes get nothing. There's no discretion."

Wal-Mart escaped massive liability. Instead, individuals have moved forward with separate cases against the company. That could occur to the NCAA if the O'Bannon suit is not certified.

Issue: NCAA's knowledge of video game avatars

Plaintiffs position: E-mails previously filed show the NCAA knew that EA Sports made video games intending to match real-life characteristics of actual college athletes. Not all of the discovery about video games filed by the plaintiffs has been unsealed.

Is that just a random Alabama football player wearing No. 32 in EA Sports' 2014 NCAA football video game, or is it Alabama linebacker C.J. Mosley?

Approximately 170 lines are redacted in the plaintiffs' certification brief. The most heavily-redacted portion comes in a section about video games after the plaintiffs wrote, "EA, CLC and the NCAA also worked together to affirmatively mislead the public and (athletes) about the lengths EA went to model the avatars after real players."

The plaintiffs contend then-NCAA Vice President Greg Shaheen worked "behind the scenes" to obtain a series of liberal "interpretations" of existing bylaws to give EA what it wanted. "He did so for one reason: money," the plaintiffs wrote.

The plaintiffs say numerous NCAA employees knew the avatars resembled real players but were overruled by then-NCAA President Myles Brand and Shaheen. With the NCAA "incentivized," the association looked the other way on the misuse of college athletes' names, images and likenesses, according to the plaintiffs. The plaintiffs say the NCAA took the position that the images were not likenesses unless they were developed using "mapping technology."

Also, the plaintiffs state that the NCAA allowed EA to create a mechanism for consumers to add the names of players as long as EA did not market the feature publicly. The plaintiffs note that EA "bragged" to the media to "100 percent count on having rosters with names available for all schools shortly after release."

NCAA position: Remy said EA Sports takes the position that it does not use the name, image and likeness of players, and if the company did, doing so wouldn't be consistent with the NCAA's agreement with EA. "Under NCAA rules, EA is not allowed to use names, images and likenesses," Remy said. A former EA Sports executive producer testified NCAA video games replicated real college players.

Issue: Roger Noll's expert testimony

NCAA position: The NCAA frequently attacks what it describes as "speculative" testimony from economist Roger Noll, a certification expert for the plaintiffs. Noll has proposed that players are entitled to 50 percent of TV revenue, based on models the plaintiffs say are used by professional sports leagues.

Noll has not conducted "anything resembling a sufficient market analysis," the NCAA wrote. The NCAA says the NBA and NFL group licenses cited by the plaintiffs have nothing to do with broadcast revenues and don't result in payments to all players, much less equal payments.

The NCAA argues that Daniel Rascher, another expert for the plaintiffs, contradicts Noll in proposed testimony about equal sharing. Rascher believes that if players were paid, the market would involve individual licenses -- not group licenses -- and create a conflict for the plaintiffs to receive equal distributions, the NCAA says.

The NCAA argues Noll made a "fatal" admission by agreeing that some class members would be paid much more for their broadcast rights than others, and some class members would probably not be paid at all. Also, the NCAA says there is no evidence to support Noll's belief that the NCAA or universities would adopt rules that permit group licensing payments to players but prohibit individual negotiations.

Plaintiffs position: The plaintiffs say Noll agrees that he valued equally the rights of all players for the purposes of a group license. But the plaintiffs say the NCAA ignored Noll distinguishing group licenses from individual licenses "that go beyond that for featured players."

Noll testified that his calculations to separate group and individual licenses followed the standard practice of the National Football League Players Association. According to the plaintiffs' brief, Noll viewed the group licenses as being associated with the antitrust class involving former players and the individual licenses as being with the injunctive relief class involving current and former players.

The plaintiffs wrote that "evidence from the professional leagues is that proceeds from group licenses are shared on an equal basis among superstars and benchwarmers."

Issue: The "Johnny Football" trademark question

Plaintiffs position: Johnny Manziel, Texas A&M's Heisman Trophy quarterback, found his way into one argument for the plaintiffs. The issue: NCAA amateurism rules and the plaintiffs' idea of deferring payments to players until after they graduate.

The plaintiffs question how the NCAA can permit Texas A&M quarterback Johnny Manziel to potentially gain proceeds from a legal case over his name and image after graduation yet potential class members in the O'Bannon suit cannot. (The Associated Press)

Manziel is suing a man who sold shirts using the football player's trademarked "Johnny Football" nickname. The NCAA would allow Manziel to collect damages if his corporation's lawsuit wins as long as those proceeds are not paid to Manziel until after his eligibility expires.

Wrote the plaintiffs: "There exists the obvious question of why this is permissible for Manziel, but putative members of the (antitrust class) cannot be paid after they graduate for use of their (names, images and likenesses) during their eligibility years."

NCAA position: Remy said the NCAA doesn't prohibit athletes from seeking redress to legal rights. "If Johnny Manziel filed suit for his legal rights, we don't stand in the way of that," Remy said.

Issue: Other NCAA case precedent

NCAA position: The NCAA heavily notes its 2006 victory against former athletes who claimed the NCAA's scholarship-limit rules were illegal restraints of trade. A judge did not certify the case, ruling individual issues impacted which class members would get a scholarship if no limit was in place.

In the O'Bannon suit, paying players would result in at least some class members losing their spot on a team to individuals who aren't currently playing Division I sports, the NCAA argues.

Also discussed is White v. NCAA, a 2006 case by former athletes who opposed athletic scholarships not covering the full cost of attending college. The NCAA unsuccessfully claimed potential class members were too dissimilar to maintain a single class. The case was certified and later settled in 2008. The NCAA says the O'Bannon suit differs because the White certification occurred prior to full discovery and was based on potential facts.

Plaintiffs position: The plaintiffs contend the O'Bannon case differs from the walk-on litigation because the current suit assumes all college athletes would receive a group license at the start of the season. The plaintiffs say the NCAA's argument in the walk-on litigation was unsuccessful in other cases, including White v. NCAA, which a judge certified.

White is the most frequently-cited case by the plaintiffs, who want a similar mechanism to distribute money from O'Bannon suit damages won through a classwide settlement or judgment. The White settlement made $10 million available over three years to former athletes who made claims for reimbursement of educational expenses. The NCAA also made $218 million available to current and future athletes.

E-mail:

jsolomon@al.com.