Hearing Held to Determine Class Action Certification in Player Likeness Lawsuit

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Posted June 22nd, 2013 at 12:30 pm

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On Thursday judge Claudia Wilken heard arguments from both sides in the player likeness lawsuit that threatens the future operations of the NCAA, CLC, and Electronic Arts. A ruling is not expected for some time – it could be a matter of weeks or even months. 

Questioning from the judge certainly appeared tougher on the plaintiffs. Wilken even told the lawyers that they must add a current college player to the case now if any are to end up in the class action suit later. That could be a difficult proposition as most athletes would not want to be singled out in such a manner while they continue their athletic competition and education.

The certification has been viewed as difficult for the plaintiffs to succeed in but if they did it would be a crushing blow that could lead to a settlement rather than going to trial. The NCAA contends the claims of athletes vary from individual to individual who would value their worth differently – there isn’t the required commonality – and because of that it should not be class action. If the certification request is denied it would be a huge win for the defendants who would only have to battle individual lawsuits rather than a pool of thousands and the monumental payout and changes that would have to be made going forward if the end result was not in their favor.

Here are some tweets from in the courthouse Thursday to paint a picture of what happened:


Earlier/Summary Below

The player likeness lawsuit against the NCAA, CLC, and Electronic Arts is the culmination of two high profile filings that were combined as led by Sam Keller and Ed O’Bannon (and O’Bannon now heads it up). It alleges improper use of player likeness through various forms of merchandise and media including video games in which the parties in question conspired to avoid paying players for their rights. Some interesting details and claims regarding the case at hand were revealed when EA was reentered as a defendant after initially being dismissed.

EA originally won a previous case regarding player likeness with the courts ruling video games are artistic works rather than commercial speech and therefore protected by the First Amendment. The Supreme Court in 2011 established forms of media, producing expressive works of art, are not subject to judgments based on incorporating someone’s name or likeness. That dismissed case however, involving Ryan Hart, has resurfaced after an appeals court reversed a decision based on that argument.

Recent uncovered emails have shown that NCAA representatives were well aware that players in games were based off real-life players. At one point the NCAA and EA had nearly reached an agreement to have actual player names included in the products. The EA Locker / Roster Share feature was a fallback option. With momentum clearly on the plantiffs’ side NCAA reps have begun to publicly express concern over the future of collegiate sports. A former EA Sports producer admitted players in NCAA games were based off real athletes.

The discovery of Tim Tebow’s name being in NCAA Football 10 could throw another wrench into EA’s series of arguments. Depositions from former Alabama wide receiver Tyrone Prothro and UConn basketball guard Tate George support the defendant’s reasoning for denying class action certification.

This consolidated case in California looks as though it will be going to trial and ultimately be the determining factor of how the NCAA proceeds in the future handling broadcasting rights, merchandising, and video games. Should a negative result come down, which one analyst has pegged as being a potential loss of $1 billion for EA, it would likely not just end the NCAA Football series but also with it any realistic possibility of college sports games being made in the future. The NCAA is currently seeking to block classification as class action. The trial now is slated to begin June 2014. Appeals following a decision could extend the fight through 2020.

  • Keith.

    The legal hits keep on coming for EA — this from Joystiq on Friday:

    “A jury in U.S. District Court today ruled in favor of Robin Antonick, the original designer and developer of Electronic Arts’ (NASDAQ: EA) best-selling Madden NFL Football games. … The jury will [now] determine what to award Antonick in allegedly unpaid royalties from more than $200 million in revenues for [Madden] games released between 1990 and 1996, punitive damages and disgorgement of all profits arising from the $5 billion Madden NFL franchise and related sports videogames, according to court filings. Damages relating to 1997-2013 games will be tried in a subsequent phase of the trial.”

    http://www.joystiq.com/2013/06/22/jury-finds-antonicks-claim-against-ea-has-not-expired-in-case-f/

    EA lost the first stage of the trial, which was supposed to have been the easy part for them. Punitive damages and disgorgement of all profits could be huge. If EA had a CEO, he’d be looking for new legal counsel right about now.

    Here’s another re-cap from Bloomberg:

    http://www.bloomberg.com/news/2013-06-21/ex-ea-madden-programmer-wins-verdict-on-timing-of-fraud-lawsuit.html

    • kdfsdf

      For some reason you only believe this ruling only effects EA, do you know how many lines of code or designs are in games and software by people who no longer work there?

      • Keith.

        It’s not about what I believe — EA is the only named defendant in the lawsuit. C’mon dude, pay attention.

  • The Rock

    Good.

  • nobb

    Im all for the NCAA getting knocked down a peg but dont think it should be this lawsuit. What a mess it would be if you had every college player negotiating pay and renegotiating when they did better then expected.

    • Ken Mooney

      EA wont let it happen, they will scramble the roster and keep ‘roster share’ open before they allows 18-22 year-olds to negotiate contracts.

      • http://pastapadre.com/ pastapadre

        If they were to lose this case as a class action, that probably wouldn’t be good enough. Rosters would have to be generic/random and the ability to edit names and share them removed. In that scenario they’re more likely just to stop making the game.

    • Iown You

      Is it any worse than the NCAA making BILLIONS of dollars off of the backs of players? Football and Basketball are the only sports that bring in big money, and much more than any academic endeavor.

      College degrees have become practically worthless in today’s America (see the jobless rate of recent grads), so people have to stop using the tired excuse of “the players get a free scholarship!” as a way to justify the NCAA’s position.

      The NCAA’s day of reckoning is coming, like it or not.

  • Ken Mooney

    at the end of the day we will have NCAA and will be able to customize (create accurate rosters) as we see best fit for our Online Dynasties (who knows what will happen with un/ranked games). The courts cannot take away are opportunity to play with college football teams, so long as the NCAA allows it. And again EA can allow the FANS to share/customize rosters. Consider it a slight mod.

  • JZ

    Someone needs to post something about Operationsports. They get paid by EA and every time a EA football game comes out they ban anyone that says anythign negative about EA football games.

    Welcome to THAT time of year – READ THIS OR RISK BEING BANNED

    http://www.operationsports.com/forums/ncaa-football/639137-welcome-time-year-read-risk-being-banned.html

    They do this every year. I get banned every year. I had about 2k posts in the last 10 months. I ripped into NBA 2k non stop never got a warning, I post about how people honeymoon when NCAA Football and Madden come out and how I do not remember once every buying one of EAs football games and not having to wit 2 month for a patch before I could play and I get banned instantly.

    What a crap site. To be honest they did me a favor. But its obvious they get paid by EA to ban any negative comment. I think the evidence speaks for its self.

    • Iown You

      OperationSports has been a running joke for a long time now. I know Pasta has some kind of relationship with them, but honestly I’d be embarrassed to be working with them. They write crappy articles with poor fact-checking, the mods don’t follow their own rules and create all sorts of alternative interpretations of them to screw with people over posts they don’t like even if it doesn’t break a rule or attack another poster. The majority of the members are complete idiots who can’t formulate a response without being an ass, and the GameChanger-suck-up fest is just plain disgusting. It’s just an amateur site that has a lot of ads on it to make money.

      I love how the mods pretend as if there is no special emphasis on the harshness of penalties against people who speak out on Madden, versus people who speak out on any other game. But all one has to do is take a Madden post that got a person banned and match up a similar post about another game that didn’t get a person banned. This can be repeated countless times. Clearly, they’re doing all they can to strangle negative views on the game.

      A lot of good members who never got into an ounce of trouble there have left voluntarily over the years, and now the site is left with a new class of numbskulls that aren’t worth talking to. Just go into the “other football games” forum and read some of the dumbass stuff there. People posting threads about the “community” making a football game, yet none of these losers could scrape up $1 in the past decade to support a single non-EA effort during that time span. Yeah, and THOSE are the people that are going to come together to make a game??? LOL!!!

      Like I said, OperationSports is a joke and so are most of its members. I quit posting there years ago and mostly only show up to read and be amused by the morons there.

  • rinodino

    Ea better make a killer college football game next year, cause its not looking good after this goes to trial

  • kdarnell233

    This is an OT question, but why is Old Dominion in NCAA 14? They aren’t competing in the FBS until 2014! They’re playing in the FCS this year, in the FCS independent conference. If they put ODU in a year early, why isn’t Ga Southern and App State in there too?

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