Steve Berkowitz

USA TODAY Sports

An anti-trust lawsuit relating to the use of college athletes' names and likenesses and the association's limits on what major-college football and men's basketball players can receive for playing sports took an unexpected turn late Wednesday night that could impact how the case proceeds.

According to a joint pretrial statement that the sides filed minutes before a midnight (Pacific Time) deadline, attorneys for the plaintiffs wrote that they had been told that none of the named plaintiffs wished to pursue individual damages claims against the NCAA.

The plaintiffs lawyers added that this means they no longer intend to proceed with a jury trial but instead will pursue the case through a trial to be decided solely by U.S. District Judge Claudia Wilken. She would decide whether to issue an injunction prohibiting the NCAA from limiting what Bowl Subdivision football players and Division I men's basketball players can get for playing.

Wilken already had been scheduled to hold a status conference Thursday to discuss what she described in a recent order as "various scheduling issues."

Now she has much more to address regarding a case scheduled to go to trial June 9 in Oakland. In addition to Wednesday night's action, she still has pending before her two motions from the NCAA that could alter the complexion and/or the timing of the case, including the NCAA's quest to sever all claims and evidence related to video games.

Because the plaintiffs originally had been seeking both the injunction, which can be granted only by a judge, and the individual damages claims, the trial would have involved verdicts from both. Wilken could have ruled in the plaintiffs' favor even if the jury did not, said David C. Vladeck, a Georgetown University law professor who is an expert in federal civil procedure.

Vladeck said that while such splits may appear odd, they do occur. Regardless, he said, this would have been "a long, complicated case that is difficult to explain to a jury." Having only the judge involved allows the plaintiffs "to get their case out in a neat package."

And Wilken so far has made a number of significant pretrial rulings in the plaintiffs' favor, including just allowing the case to get this far despite multiple efforts by the NCAA over the past five years to have it dismissed or redefined. On Monday, for instance, she rejected the NCAA's request that she reconsider her refusal to allow the NCAA to say that its limits on what athletes can receive for playing college sports are justifiable because they enable schools to provide increased financial support for women's sports and less prominent men's sports.

The plaintiffs' late move occurred after the sides had made a variety of other filings earlier Wednesday night that were predicated on individual damages claims being pursued before a jury. For example, the plaintiffs filed a proposed verdict form that asked jurors to determine not only whether each individual plaintiff had been wronged but also how much money each plaintiff was to be awarded as damages.

The sides also jointly filed an extensive and disputed set of jury instructions and a two-part jury screening questionnaire.

In the joint statement, the plaintiffs' attorneys wrote: "In discussions that have extended into this evening, all but one of the named plaintiffs (who has been unavailable) have instructed counsel that they will not be pursuing individual damages claims against the NCAA," and the plaintiffs "have informed NCAA counsel this evening of that intention."

The NCAA's lawyers indicated in the joint statement that they were stunned by the change and they wrote that at trial they will seek dismissal with prejudice of all claims and attorneys' fees and costs as provided by law.

The plaintiffs' lead attorney, Michael Hausfeld, said Thursday morning: "This case has always had two components — a trial by judge and a trial by jury. Nothing has changed in proceeding against the system before the judge. It was, and always has been, the focus of the athletes to end the injustices in the system, its inequities and its excessive control over the enterprise in violation of the anti-trust laws."

Hausfeld said that after looking at the NCAA's proposed verdict form — which included a question that essentially asked jurors to get involved with a long-disputed issue about whether the First Amendment allows the athletes to make claims about their rights in live television broadcasts of games — "it became clear they were attempting to do everything they could to distract the jury's attention from the abuses of the system and the system itself."

"The decision of the athletes was a selfless one in terms of keeping the focus on the enterprise known as the NCAA and forgoing any individual benefit they might have received," Hausfeld said.

As for the timing of the decision to abandon the individual damages claims, Hausfeld said Wilken had made a key ruling as recently as her Monday decision. In addition, Hausfeld said, other unsettled motions from the NCAA and ongoing efforts to finalize a settlement related to video games with game manufacturer Electronic Arts and the Collegiate Licensing Co. "condensed the time that could have been used to make a decision" on proceeding with the individual claims.

"The case was always going to trial on June 9 on the damages claim and the injunctive relief," Hausfeld said. "There's no prejudice in proceeding with that which they should have been preparing for no matter what."

The NCAA's lawyers wrote Wednesday night that they were "surprised and troubled by the Plaintiffs' last minute and abrupt decision to attempt to avoid having a jury decide" the case.

"Up until hours before this evening's midnight deadline, the parties were working on a draft of this pretrial statement in which the 'Plaintiffs' Requested Relief' section outlined individual damages amounts for each individual plaintiff by product ... with no mention that Plaintiffs planned to drop their damages claims and instead try their claims to the Court.

"The NCAA vigorously objects to the Plaintiffs' apparent last ditch effort to change course in this litigation. Because the NCAA was not informed of this decision until hours before this filing was due, the NCAA was not able to adjust any of this filing, save this subsection, or any of its pretrial disclosures to account for a bench trial. The NCAA reserves all rights to seek the appropriate relief in response to the Plaintiffs' last-minute attempt to change the nature of the trial in this case. Further, in the event the case goes forward as a bench trial, the NCAA reserves all rights to revisit and revise all stipulations, pretrial filings, and submissions that were made today in anticipation of a jury trial."

Wilken has determined that the plaintiffs can seek, on a class basis, an injunction that would prohibit the NCAA from limiting Bowl Subdivision football players and Division I men's basketball players to scholarships under which they basically can receive only tuition, mandatory fees, room, board and books. An injunction could allow football and men's basketball players to be compensated for the use of their names, images and likenesses in ways such as merchandising and live television broadcasts. Injunctive relief can be provided only by a judge.

Wilken denied a request from the plaintiffs that she grant class-action status to a broad range of current and former athletes seeking monetary damages from past live television broadcasts of games. That prevented the plaintiffs from seeking an award that could have been in the billions of dollars, but the individual claims stood. Those were to be heard by a jury, whose verdict would have been followed by Wilken's ruling on the injunction.

The action late Wednesday night followed earlier filings that showed NCAA President Mark Emmert is almost certain to testify if the case goes forward.

The sides also sparred over an array of issues, including the admission into evidence at trial of a recent ruling by the National Labor Relations Board's Chicago-based regional director that Northwestern University scholarship football players are employees and should be allowed to unionize if they wish.

The plaintiffs asked Wilken to allow them to present what they termed regional director Peter Sung Ohr's "factual findings." The NCAA objected to that request and argued that the regional director's report should be excluded from the case as hearsay, rather than a "factual finding." The NCAA also pointed out that it is not a party to the NLRB proceeding and that the NLRB has granted Northwestern's request for a review of the regional director's ruling.