Tracking Latest Details Surrounding Ed O'Bannon v. NCAA Lawsuit

Tyler Conway@jtylerconwayFeatured ColumnistApril 12, 2014

Updates from Thursday, July 24

Jon Solomon of CBS Sports reports on a decision a federal judge made on Thursday regarding collegiate athletes receiving compensation for appearing in video games:

A federal judge said Thursday she will approve two settlements involving college football and men's basketball players who appeared in NCAA-branded video games, according to two plaintiffs' lawyers who participated at the preliminary approval hearing.

Also, U.S. District Judge Claudia Wilken disagreed with the NCAA's interpretation that its $20 million settlement with the Sam Keller plaintiffs and others releases all video game claims from the Ed O'Bannon case, O'Bannon attorney Michael Lehman and Keller attorney Leonard Aragon said. The O'Bannon antitrust case relates in part to video games and is separate from the video game settlement.

Updates from Wednesday, July 23

Jon Solomon of CBS Sports has the latest development in the Ed O'Bannon lawsuit:

A revised NCAA video-game proposed settlement filed Wednesday has removed a $5,000-a-year cap for current and former college football and men's basketball players who appeared in the games.

The change could open the door for players to receive “what some might consider a windfall,” said Rob Carey, an attorney for former Nebraska and Arizona State quarterback Sam Keller in the settlement. If 10 percent of the eligible class opts into the settlement, Carey estimated a player who appeared four years in a video game could receive $50,000 to $55,000.

Updates from Thursday, June 19

Mark Schlabach of and George Schroeder of USA Today provide a few highlights from Mark Emmert's testimony in the Ed O'Bannon v. NCAA trial:

Updates from Tuesday, June 17

Steve Berkowitz and George Schroeder of USA Today report when Mark Emmert will testify in the Ed O'Bannon v. NCAA trial:

NCAA president Mark Emmert will testify in the Ed O'Bannon class-action antitrust trial here Thursday, a person familiar with Emmert's plans said Monday night.

Emmert confirmed that schedule following brief remarks at a reception at the Collegiate Commissioners Association's meeting in Laguna Niguel, Calif.

He had said last week he would be testifying, but the date of his appearance was not set until Monday night.


Updates from Wednesday, June 4

The NCAA commented on the news that EA Sports has reach a settlement ahead of the trial via

First, under no circumstances will we  allow the proposed agreement between EA and plaintiff’s lawyers  to negatively impact the eligibility of any student-athlete…not one will miss a practice or a game if this settlement is approved by the court. This proposed settlement does not equate to payment of current student-athletes for their athletic performance, regardless of how it is being publicly characterized. 

Second, the real benefactors of this settlement are the lawyers, who could pocket more than $15 million.

We have not yet determined whether to formally object to any of the settlement terms.

Jon Solomon of CBS Sports provided more details on how the EA settlement will impact current student athletes: 

The NCAA said Wednesday that current college athletes will not lose their eligibility by receiving money from a proposed $40 million settlement related to names, images and likeness of players. However, the NCAA said it has not decided whether to object to the settlement.

More than 100,000 current and former football and men's basketball players have potential claims to money from the Electronic Arts and Collegiate Licensing Company settlement related to video games. Lawyers for one set of plaintiffs in the case have estimated that approximately 7,000 current football and men's basketball players could be eligible for the payments, which could range from a couple hundred dollars to a couple thousand dollars.

Updates from Friday, May 30

Jon Solomon of CBS has the latest on the Ed O'Bannon lawsuit:

Steve Berkowitz of USA Today outlines financial details on the amount the plaintiffs are seeking:

The filing, a motion seeking Judge Claudia Wilken's preliminary approval of the agreement, disclosed an additional potential issue for the NCAA, which is not a party to the proposed settlement: the financial stakes in an ongoing anti-trust lawsuit being pursued by plaintiffs led by former UCLA basketball player Ed O'Bannon. The filing notes that in that case alone, the amount of the plaintiffs' attorneys' fees "exceeds $30 million and expenses exceed $4 million." The plaintiffs in that case have said in a recent filing that the relief they are seeking includes "attorneys' fees, costs, other expenses.

Updates from Wednesday, May 28

Jon Soloman of CBS Sports has the latest on Mark Emmert's role in the trial, and the timeline for what to expect when the proceedings begins:

Updates from Friday, May 23

USA Today's Steve Berkowitz has an update on the O'Bannon trial:

U.S. District Judge Claudia Wilken on Friday denied the NCAA's remaining motions in an anti-trust case relating to the use of college athletes' names and likenesses and maintained the trial's previously scheduled start date of June 9.

Wilken also formally separated the anti-trust case, whose lead plaintiff is former UCLA basketball player Ed O'Bannon, from a case focusing on college sports-themed video games that is being pursued on behalf of former Arizona State and Nebraska quarterback Sam Keller. And she set a March 2015 trial date for the Keller case.

Updates from Tuesday, May 20

The NCAA is attempting to push back the start date of the trial according to Jon Solomon of CBS Sports:

The NCAA wants all of next month's Ed O'Bannon trial to be delayed until February, citing the potential overlap of videogame claims involving the Sam Keller plaintiffs, who have proposed now trying their case in February 2015.

The O'Bannon antitrust plaintiffs “cannot explain how the Court can conduct a meaningful bench trial and be assured that its factual findings will not impinge in any way on a common issue to be presented to the Keller jury,” the NCAA wrote in a filing Tuesday.

The nearly 5-year-old O'Bannon antitrust case over the use of college athletes' names, images and likenesses was long go combined with the Keller rights-of-publicity case, which explores the NCAA's culpability in the alleged use of athletes' likenesses in college sports videogames. But now the cases are potentially breaking off again in order to salvage some of the June 9 trial.

Updates from Thursday, May 15

Steve Berkowitz of USA Today reports plaintiffs are no longer seeking a jury trial:

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 by U.S. District Judge Claudia Wilken.

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.


Updates from Wednesday, May 14

Jon Solomon of CBS Sports reports on what the plaintiffs will be requesting during the trial: 

The Ed O'Bannon plaintiffs want NCAA president Mark Emmert to testify during the trial of the lawsuit relating to the names, images and likenesses of college athletes, according to a court filing Wednesday.

The plaintiffs identified Emmert, former NCAA vice president Wally Renfro and NCAA Division I vice president David Berst as witnesses they want to appear live. The trial is scheduled to start June 9 in Oakland.

“The NCAA has indicated that it will check on the availability of the three individuals above to testify during Plaintiffs' case-in-chief, but that is not sufficient,” lawyers for the O'Bannon plaintiffs wrote. “If those people do testify during the defense case, they need to be unequivocally made available for live testimony as part of Plaintiffs' case and Plaintiffs need to know that sooner rather than later so they can prepare examination.”


Updates from Tuesday, May 13

Jon Solomon of CBS Sports provides an update on the Ed O'Bannon lawsuit:

Updates from Sunday, May 4

Jon Solomon of CBS Sports has the latest development in the Ed O'Bannon lawsuit:

Updates from Wednesday, April 30

The Associated Press reports that the NCAA has filed a motion that could delay the trial process:

The NCAA has filed a flurry of motions in federal courts, seeking rulings that could delay the start of the landmark antitrust lawsuit brought by former UCLA basketball star Ed O'Bannon and others.

The latest filings target both the judge assigned to the case and the 9th Circuit Court of Appeals on issues that are at the center of the trial, now scheduled to begin June 9 in federal court in Oakland, Calif. Among them is a request for U.S. District Judge Claudia Wilken to reconsider an earlier ruling that the NCAA cannot use the defense that money from big revenue sports like football and basketball is used to fund smaller sports and women's sports.

Lawyers for the NCAA also argued that they should be allowed to appeal an earlier ruling by Wilken dealing with First Amendment broadcast rights to the 9th Circuit before there is any trial.

"The issue is extremely important; the court's ruling, if upheld, could fundamentally alter the nature of amateur athletics and raises First Amendment issues of enormous consequence," NCAA lawyers wrote in filings this week.

Original Text

Compounding the litany of legal issues already facing the NCAA, a federal judge ruled a lawsuit against college sports' governing body spearheaded by former forward Ed O'Bannon will go to trial in June if a settlement is not reached.

U.S. District Judge Claudia Wilken rejected the NCAA's motion to throw the case out and rule in the governing body's favor before trial, per Reuters' Dan Levine. Without a settlement, the case will be heard by an antitrust court, which will then render a ruling.

More than 20 plaintiffs, each of whom will have file a lawsuit on his or her own behalf, are suing the NCAA for what they claim is unlawful use of their likenesses in video games and other forms of media. The O'Bannon plaintiffs had previously sued Electronic Arts, which used to produce the NCAA Football and NCAA March Madness video games series, before the two sides settled last year.

The NCAA has since sued Electronic Arts.

More than past likenesses, the O'Bannon case is a potential landmark victory for student-athletes—past and present. With the NCAA raking in billions of dollars annually from television rights, merchandising and other revenue forms without compensating the players, a verdict in the plaintiffs' favor would give players—specifically those who play basketball and football—an undetermined piece of the pie.

Donald Remy, the NCAA's chief legal officer, told Reuters he expects the governing body to win the case. 

"The model we have today enables nearly half a million student-athletes at over a thousand schools to compete on the playing field while getting a college degree," Remy said. 

In her ruling, Wilken both opened the door for a full-fledged trial while paring down some of the legal matters in the case. The judge ruled out the NCAA's attempt to use its First Amendment right by claiming live broadcast of games fall under its jurisdiction, per Jon Solomon of Wilken also noted some possible culpability from television networks and other forms of media, which use player likenesses in numerous ways beyond live telecasts:

Because the record does not demonstrate that all Division I student-athletes validly transferred all of these rights, the First Amendment does not preclude student-athletes from asserting rights of publicity in live broadcasts or re-broadcasts of entire games. Accordingly, the First Amendment does not preclude the existence of a market for group licenses to use student-athletes' names, images and likenesses in those broadcasts.

The ruling noted that there needs to be a better-established agreement on what constitutes likeness use. Per Solomon, Wilken wrote the signing away of a player's likeness would have to be "a condition of playing so the representative could license the right to televise the athletes' games."

While this is far from a monetary ruling in O'Bannon's favor, an oncoming trial is just the latest piece of litigation that stands to change the college sports landscape as we know it. The National Labor Relations Board granted a motion from Northwestern University football players requesting college athletes be able to form a union. The board ruled that athletes were already university employees due to the long work hours and performance-based contingencies worked into their scholarships.

“It cannot be said that the employer’s scholarship players are ‘primarily students,’” the decision said.

Players have to vote via a majority to form a union. The NCAA has also appealed the ruling, so the litigation in that case is far from over.

Nevertheless, some form of change is afoot whether the NCAA agrees with it or not. The mountain of litigation is only going to get higher as players see revenue made on their hard work going anywhere but their pockets. 

"I don't feel student-athletes should get hundreds of thousands of dollars, but like I said, there are hungry nights that I go to bed and I'm starving," Connecticut point guard Shabazz Napier told reporters at the Final Four.

With any luck in the courtroom, the Shabazz Napiers of the future won't have to go to bed "starving" for much longer.


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