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.