By Kaitlyn R. Kacsuta, JD
The O’Bannon v. NCAA class action lawsuit continues to survive attempts by the NCAA and EA Sports to have the suit dismissed. Now in the discovery stages of litigation, on June 20 a District Judge for the Northern District of California will hear the merits of the class certification of a class that consists of both former and current student-athletes.
In late May, the NCAA filed a sur-reply on the motion for class certification. The NCAA has claimed that the expanded class of antitrust plaintiffs in the O’Bannon case does not meet the requirements of Rule 23 of the Federal Rules of Civil Procedure for class certification. Specifically, the NCAA claimed that Division I Bylaw 12.5.1 and Form 08-3a have “have nothing to do with broadcast . . . and nothing to do with whether current or former [student-athletes] can be paid for their [likeness] while retaining eligibility.”
The NCAA Division I Bylaw 12.5.1. and Form 08-3a both require a student-athlete to sign over rights to his or her name, identity and likeness in order to be eligible to compete in athletics, but according to the NCAA sur-reply, the rules and form allow student-athletes the opportunity to “refuse to sign the form and withhold such permission, and that the form has nothing to do with [student-athletes] appearing in live or archival game footage.”
The NCAA has also claimed that the class cannot be certified because, 1. the class is unascertainable, given the lack of a method to calculate which NCAA broadcasts were licensed or sold as part of the conspiracy to restrain the market for student-athlete likenesses; 2. the only commonality between the class is that all were subject to NCAA rules — according to the NCAA this is analogous to Wal-Mart v. Dukes, which according to the Supreme Court could not be certified as a class; 3. intra-class conflicts preclude certification; and 4. individual causation issues predominate the class issues; 5. injunctive relief is the primary method of relief sought, but the money damages are not incidental to the injunctive relief.
While the District Judge will hear the merits of these class issues on June 20, several recent developments may provide significant support to the O’Bannon class.
On May 21, 2013, a 2-1 panel of the Third Circuit held that Ryan Hart, a former football player at Rutgers had his likeness misappropriated by EA Sports. This decision reversed a 2011 ruling by District Judge Freda Wolfson. According to the Third Circuit, EA Sports had not “sufficiently transform[ed]” the video game version of Hart. Additionally, the Third Circuit determined that Hart’s rights to publicity outweigh EA’s First Amendment rights. Hart’s attorney, Michael Rubin, called the Third Circuit’s holding a “wonderful precedent-setting decision for college athletes, professional athletes and other well-known individuals who seek to protect their hard-earned fame and reputation against commercial exploitation by others for profit.” The reversal in the Hart case will undoubtedly have a substantial impact on the O’Bannon litigation.
Quite simply, the Hart case goes to the very core of the claims and assurances by both the NCAA and EA Sports that actual college players, their names or likenesses, were never used in the NCAA football and basketball video games. The Third Circuit has now determined that college athlete likenesses are being misappropriated. To pour more salt in the wounds of the O’Bannon defendants, it was revealed in May that EA Sports did, in fact, use players’ names in its video games. Interestingly, it was none other than Tim Tebow, former quarterback for the Florida Gators, who was used by name in the 2010 version the EA Sports college football video game. A play in the game is called, “Shotgun Twin QB Tebow.” A reader of the website, SBNation, took a screenshot of the video game and the name of the pay, which sparked this latest development.
The use of Tebow’s name in the game may be more damaging for the NCAA and EA Sports than the lack of “sufficient[] transform[ation]” in the Hart ruling. Use of a college athlete’s actual name will provide the class with evidence that there was not only a market for player names, images, and likenesses, but that there was a conspiracy between the NCAA and EA Sports to restrain the market for those likenesses. This conspiracy may also be evidenced by emails between the NCAA and EA Sports that were recently made public. The emails detail EA’s propensity to create college players for its game that look eerily similar to current and former student-athletes (as it did with Hart), the NCAA’s knowledge of the problem, and its failure to do anything about the problem.
More significantly for the June 20 hearing, this evidence and the holding in Hart will provide the plaintiffs to refute the claim that the class lacks “commonality.” The plaintiffs may assert that, contrary to the NCAA’s claims, there is more in common with the class of current and former student-athletes than simply signing the same papers and following the same Bylaws — as was the case in Wal-Mart v. Dukes. Here, the O’Bannon plaintiffs may attempt to assert that there is commonality because all class members are faced with the common issues of fact and law — whether they were subject to a conspiracy to misappropriate their names and likenesses. The class members, whether current or former student-athletes, may now have some evidence to demonstrate that the likeness of each player has been used, without sufficient transformation, by EA Sports and the NCAA.
Lastly, the terms of the Pac-12 media rights agreement with ESPN and Fox were submitted as part of the evidence leading up to the class certification hearing in the O’Bannon case were made available last week. The terms of the $3 billion, 12-year contract reveal the bonuses received by the conference ($30 million in 2012), the annual revenue increase of 5.1% each year for the conference, and a marketing plan that requires ESPN to provide $2.5 million annually to the conference for marketing purposes.
The television contract for the Pac-12 and other conferences may provide valuable evidence to the O’Bannon class at the certification hearing. Not only do these contracts provide evidence of the terms and length of the broadcast arrangements, but the contracts also help to refute the NCAA’s claims that the class cannot determine which broadcasts are parts of the conspiracy to restrain the market of student-athlete likenesses. Namely, the Pac-12 deal with ESPN and Fox specifically details the number of football and men’s basketball games that will be broadcast each year and on which networks those events would appear. With that information, the O’Bannon class can determine which broadcasts were and will be parts of the conspiracy to restrain trade.
The June 20 hearing on class certification in the O’Bannon litigation will prove to be interesting. While it is still unclear if the plaintiffs can satisfy Rule 23, the NCAA and EA Sports may feel compelled to settle the case to avoid the release of detailed television and other licensing agreements — and to keep the amateur model alive.
Kaitlyn is a 2013 graduate of Duquesne University School of Law. In May 2013, she won the inaugural Sports Lawyers Association Writing Competition. While in law school, Kaitlyn was an executive member of the Law Review and won a national moot court competition in 2012. Kaitlyn can be reached by email at kk0110@gmail.com and followed on Twitter, @KRKacsuta.
