July 19, 2013 10:52am PT by Eriq Gardner
Active NCAA Athletes Added to Lawsuit Over TV Money, Video Games
On Thursday, active athletes were added to a proposed class action lawsuit against the NCAA, where billions of dollars in TV money could be at stake.
The lawsuit has been pending for more than four years and has taken turns and twists on its route to becoming a legal challenge that focuses on the alleged antitrust injuries inherent in forcing athletes to sign waivers and give up the right to profit from video game and broadcasting deals.
A San Francisco federal judge is considering whether to certify the class action, and after a hearing last month, allowed the plaintiffs to amend their claims to add current athletes to the proposed lawsuit. Now joining ex-athletes like Oscar Robertson and Bill Russell are those still in school, including Arizona linebacker Jake Fischer, Clemson defensive back Darius Robinson and Minnesota wide receiver Victor Keise.
While not as famous as the ex-athletes, the inclusion of a half-dozen current athletes arguably ups the stakes as the NCAA and member conferences find that their most lucrative licensing partnerships are potentially subject to antitrust scrutiny. In addition to the new named plaintiffs as class representatives, the plaintiffs have added details in a whopping 213-page amended complaint that was filed Thursday.
The new charges come after U.S. District Judge Claudia Wilken told the plaintiffs that the "pleading may be amended only the minimum amount necessary" to conform to their certification motion and deficiencies identified by the defendants.
Throughout the process, the NCAA and other defendants like Electronic Arts have been upset at how much the plaintiffs' claims have changed from the legal fight's start. At the beginning, the case was more about some video games that allegedly misappropriated the likeness of former players through avatars. The evolution to a lawsuit that's the biggest antitrust challenge the NCAA has faced has become a basis partly for the defendants' demand that the certification be denied.
As Wilken examines whether to let the plaintiffs proceed -- and if so, how -- the new amended lawsuit includes allegations like EA offering to establish a player fund in 2007 for the use of student-athlete names, images and likenesses.
According to the complaint, the Collegiate Licensing Company, "negotiating on the NCAA's behalf, instead suggested that the money should go to the NCAA. EA agreed to pay a kicker to NCAA in order 'to align interests and incentivize all parties to help build the category with new rights.' EA made this offer contingent on 'no royalties ... to a player fund.'"
The plaintiffs say that not everybody was on board with this plan within the NCAA's ranks.
"NCAA administrators noted 'real concern' that use of student-athletes' names, images and likenesses in video games 'adds to the argument that student-athletes should be unionized and receive a cut of the profits, etc.,' " says the lawsuit.
But objections were allegedly overruled by former NCAA president Myles Brand and NCAA marketing executive Greg Shaheen.
Last week, in the midst of the legal drama, the NCAA ended its relationship with EA.
As for TV money, the plaintiffs talk about how the NCAA has grown its annual men's basketball tournament from one that derived a few million dollars in 1979 to one that now commands billions of dollars. And the plaintiffs point to ways that "new licensing deals for this game continue to be struck," for example, speaking how the "Big Ten's Greatest Games" are now shown on Hulu, co-owned by Fox, which is also a partner in the Big Ten Network.
In the demand for relief, the plaintiffs believe that they are entitled to a declaration that any releases that purport to relinquish rights to compensation are "void and unenforceable" and further that defendants and their partners "be permanently enjoined and restrained from, in any manner, continuing, maintaining or renewing the contract, combination or conspiracy alleged... ."
The athletes also want the defendants to be disgorged of profits connected to the sale of video games as well as any products that contain game footage. They haven't directly asked for money from live television events yet (notwithstanding how today's televised games often provide flashbacks), but if ultimately successful, the class action could raise questions about what kind of consent is needed from active athletes and potentially pave the way toward some sort of deal that puts an end to amateurism in college sports.