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Volume 24 No. 117
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Ed O'Bannon Ruling Permits Amateurism Challenge, But Blocks TV Damages

A federal judge on Friday ruled in the Ed O'Bannon case that college athletes are "allowed to challenge the NCAA's current amateurism rules, but cannot seek potentially billions of dollars in damages for appearing in past television broadcasts," according to Jon Solomon of the BIRMINGHAM NEWS. U.S. District Court Judge Claudia Wilken "partially granted class-action status in the Ed O'Bannon lawsuit over the use of college athletes' names, images and likenesses." The decision "could change the concept of amateurism in college sports, but stops short of widespread past damages O'Bannon's lawyers had sought." Wilken "granted certification for the plaintiffs to pursue an injunction barring the NCAA from prohibiting current and former athletes from entering into group licensing deals for use of their names, images and likenesses in video games and TV broadcasts." However, Wilken "denied the bid for a class to seek monetary damages from the NCAA that would have involved lucrative television money." Both sides "claimed victories from the ruling." EA and Collegiate Licensing Co., which also are defendants in the case, "settled with the plaintiffs" for $40M "against claims EA used athletes' images and likenesses in video games." EA previously announced that it "would not make a college football video game" in 2014. Wilken in her ruling wrote that the plaintiffs "met the legal threshold to build a larger group to challenge the NCAA's amateurism rules." At issue was whether the plaintiffs had "common complaints to pursue the injunction as a class-action." The NCAA had "contended the class shouldn't be certified because star players would command more money than other players." Wilken called that supposed conflict "illusory" (, 11/8). NCAA Exec VP & General Counsel Donald Remy in a statement posted Friday on the NCAA website said that the case was "wrong on the facts and the law" (WALL STREET JOURNAL, 11/9).

INTRACTABLE PROBLEM: Wilken said that the plaintiffs who sought a class to seek monetary damages from the NCAA "could not identify a feasible way of determining which current and former athletes were 'actually harmed' by the NCAA's limits on what athletes can receive for playing sports." Wilken noted major-college football rosters have as many as 105 players and said that the video games' "inclusion of 68 players per team and that NCAA football teams allow multiple players to wear the same jersey number, 'makes it impossible to determine' which athletes suffered harm from being in the game 'without conducting thousands of individualized comparisons between real-life college football players and their potential videogame counterparts'" (, 11/9).

SETTLEMENT POSSIBLE:'s Michael McCann wrote Wilken's ruling, which "both sides publicly hail as a victory but is also bittersweet for both, sets the table for a historic trial next June." The order also "motivates both sides to engage in settlement discussions over the coming months." But sources said that the two sides "have not engaged in settlement talks and are essentially in a cold war." The absence of talks to date "is not surprising." Neither side until the ruling "could reasonably predict the economics of the case." The sides "now have more information and can better forecast whether the case carries the risk of tens of millions, hundreds of millions or even billions of dollars." There are "two remaining potential obstacles to settlement talks." First is whether the NCAA is "on firm ground to enter into settlement talks on behalf of its member schools and conferences." A settlement also would "help the NCAA incorporate Title IX considerations into any new system." A verdict for O'Bannon "would not address Title IX since that law is not part of the case." A second obstacle to settlement is whether O'Bannon has "appropriate standing to reach a settlement with the NCAA on behalf of future college athletes, who would have no input on the terms O'Bannon and the NCAA negotiate." That is "sure to present a complication" (, 11/9).

HISTORY IN THE MAKING? In N.Y., Greg Bishop writes former Nike, adidas and Reebok exec Sonny Vaccaro, who has been involved on the plaintiffs' side, "felt more optimistic than disappointed" about the ruling. It left O’Bannon and "about 20 current or former athletes, many of whom Vaccaro helped to join the case, without what they desired in the first place: compensation for their likenesses and images after their playing career ended." If their case "makes history, they are unlikely to profit from it." Vaccaro said, "Going forward is where the billions are. I want to live to see that day in court. I want to see that for Ed O’Bannon. The people he and those guys helped won’t even know they helped them. But change is coming" (N.Y. TIMES, 11/11).