By Kaitlyn Kacsuta
On August 19, 2013, the National Collegiate Athletic Association (NCAA), EA Sports, and Collegiate Licensing Co. (CLC) each proposed a series of filings that have sought to delay the O’Bannon antitrust lawsuit. Both EA Sports and CLC requested a 5-month delay of the trial, which is currently scheduled to begin in District Court Judge Claudia Wilken’s courtroom on June 9, 2014. The NCAA has asked for a 15-month extension. The NCAA has proposed a new trial date of August 28, 2015. The extension requests were the result of the parties’ inability to agree to a case schedule.
A number of tactical reasons prompted the requests of the co-defendants. Most notably, EA Sports expressed its intention to seek review of two athlete likeness cases by the U.S. Supreme Court. One of those cases that EA hopes will be heard by the highest court involves former Nebraska (and Arizona State) quarterback, Sam Keller. Keller’s case was consolidated with the O’Bannon case in 2010, as part of a class action lawsuit against the three co-defendants. The other case that EA hopes the Supreme Court will review is the Ryan Hart decision from the Third Circuit.
In July 2013, three-judge panel of the Ninth Circuit affirmed a district court ruling that EA could not successfully raise First Amendment grounds to protect its use of college player likenesses in video games as grounds for dismissal of the lawsuit. EA also requested that the Ninth Circuit withhold any action to return the Keller case to Judge Wilken until the Supreme Court has an opportunity to decide if it will hear the First Amendment claim.
It appears as though EA is either hoping for a legal “Hail Mary” from the Supreme Court, something that is unlikely given the consistency between the Third Circuit’s opinion in the Hart case and the Ninth Circuit’s panel decision in Keller (the only two circuits in the country to hear such claims); or EA will look for more time to settle with the O’Bannon plaintiffs and remove itself from the litigation as a result of the recent unfavorable court rulings. It is likely that the NCAA has similar motives for its requested extension. Like EA, the NCAA’s filings called the Keller case critical to the outcome of the O’Bannon litigation based on the impact First Amendment safeguards have upon a revenue split for broadcasts of sports events. The NCAA may be hoping the Supreme Court will consider and reverse the Ninth Circuit’s decision in Keller on First Amendment grounds, and thus thwarting any share of revenue between athletes and the NCAA.
Judge Wilken must also consider the class certification matter in O’Bannon, a critical step in the litigation that could change the entire college sports landscape. The NCAA may have requested such a lengthy extension in order to prepare for an adverse ruling by Judge Wilken on the certification issue. That preparation would likely include both trial preparation and far more intensive settlement negotiations.
CLC’s filings express a hope that an extension will reduce the scope of the O’Bannon case, and that four of the current student-athletes added as co-plaintiffs in O’Bannon will be removed. The plaintiffs in O’Bannon have asked Judge Wilken to maintain the June 2014 trial date.
Kacsuta 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, Kacsuta was an executive member of the Law Review and won a national moot court competition in 2012. She can be reached by email at kk0110@gmail.com and followed on Twitter, @KRKacsuta.
