Judge Certifies NCAA Athlete Publicity Rights Class Action
SAN FRANCISCO — A federal judge has certified a class action that challenges the National Collegiate Athletic Association's long-standing rules requiring student-athletes to sign away rights to their names and likenesses as the organization strikes deals of its own.
Although she declined to certify a subclass of athletes seeking to recover monetary damages, U.S. District Chief Judge Claudia Wilken will let plaintiffs try to upend NCAA policies that bar them from striking group deals to license their names and likenesses for use in video games and television broadcasts. In the order certifying the injunctive relief class, released Friday, she said it would be too hard for plaintiffs to determine who had actually been harmed for a damages class.
Represented by Munger, Tolles & Olson and Schiff Hardin, the NCAA insisted that the injunctive relief class must also be rejected. The bid for an injunction appeared to have been tacked on to the demand for damages, which was the plaintiffs' main aim, the NCAA argued. But Wilken saw value in the proposed injunction, too.
"Without the requested injunctive relief, all class members—including both current and former student-athletes—would potentially be subject to ongoing antitrust harms resulting from the continued unauthorized use of their names, images and likenesses," she wrote.
The NCAA cheered Wilken's rejection of the plaintiffs' bid for damages.
"We have long maintained that the plaintiffs in this matter are wrong on the facts and wrong on the law," Donald Remy, the NCAA's chief legal officer, said in a statement. "This ruling is one step closer to validating that position."
Wilken certified lawyers at Hausfeld as class counsel for the plaintiffs seeking injunctive relief. Lawyers at Hausfeld did not respond to requests for comment.
Twenty-five current and former college athletes, who played on Division I men's football and basketball teams between 1953 and the present, allege that the NCAA has violated the Sherman Antitrust Act by stamping out competition in the licensing market in In re NCAA Student-Athlete Name & Likeness Licensing Litigation, 09-1967. The NCAA has struck deals for use of players' names and likenesses with various companies, including Electronic Arts for its video game "NCAA Football."
Electronic Arts and the Collegiate Licensing Company reached a $40 million settlement with the plaintiffs in September, but the NCAA decided to keep fighting. The organization argued in court papers that the plaintiffs were not eligible for class certification because some college athletes could command a higher price for their names and likenesses than others. But Wilken brushed aside those concerns, noting that the plaintiffs accused the NCAA of stifling competition in the market for group licensing rights.
"Even if some class members suffered greater economic losses than others because the NCAA prevented them from licensing their individual publicity rights, those rights would have no bearing on this case," Wilken wrote.
But Wilken had other concerns about the would-be damages class. An expert for the plaintiffs argues that more college athletes might stay in school if they could recoup money in the group licensing market.
But Wilken noted in her order that students who leave early to play professionally open up spots for others, meaning that some members of the would-be class for damages actually benefited from the competitive constraints imposed by the NCAA. The plaintiffs failed to propose a remedy to address this "substitution effect," Wilken wrote.
In addition, determining which sliver of the class had appeared in video games and on television broadcasts would be a mammoth task, she noted.
"This makes it impossible to determine who is a member of the damages subclass without conducting thousands of individualized comparisons between real-life college football players and their potential videogame counterparts," Wilken wrote.