In re: NCAA
Student-Athlete Name & Likeness Licensing Litigation
U.S. District Court for the Northern District of California
Case Number: 4:09-cv-01967
On Thursday, June 21, 2013, a group of current and former NCAA athletes sought
class action status from a California federal judge.  They allege that the NCAA violated anti-trust
laws (as well as their right of publicity) by using their names and likenesses
in television broadcasts and videogames without providing any form of
compensation.  District Court Judge
Claudia Wilken asked attorneys for the plaintiffs to, “disprove the NCAA’s
arguments that the players” had different levels of ability and fame which
would create a conflict within the class. 
Attorneys for the NCAA also alleged that class status could not be
granted in regards to broadcasts because the broadcasts do not feature every
athlete on a team’s roster.
            Michael D.
Hausfeld (of Hausfeld LLP) argued that the first argument was invalid because
student athletes receive the same scholarships regardless of ability, and
compensation from broadcasts could be distributed equally in the same manner.  Hausfeld stated, “[d]istributing revenue
from the conveyance of image and likeness, would correlate to that fairness
principle by maintaining the equality of all the athletes.”  Furthermore, it would not be difficult to
establish which athletes appear in the broadcasts because in other industries
there are those who keep track of appearances. 
Gregory Curtner (of Schiff Hardin), arguing on behalf of the NCAA, stated
it would be an arduous task, and that, “[a]scertainability is a big issue
and [the plaintiffs] have no solution for it.”  Counsel for the players goes on to argue that
the NCAA, by requiring players to participate as amateurs and prohibiting them
from being compensated, for a, “horizontal agreement to not compete.”
            The various
lawsuits name the NCAA, game publisher EA Sports, and Collegiate Licensing Co.
(a trademark licensing and marketing company). 
Trial is currently scheduled for February 2014.  This case could be significant for EA because the NCAA players are seeking injunctive relief to prevent EA from continuing to make its NCAA series without providing compensation.  In the event that this happens, EA will need to decide whether to continue making its NCAA franchise without using the likenesses of current players to market the game, or start paying a new license fee.

            We will
update accordingly as more details come up.
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