June 21, 2013 8:22am PT by Eriq Gardner
Judge Considers NCAA Athletes Challenging Billions in TV Money
Who will be the college sports star putting his or her name on a lawsuit with the potential to shake up collegiate athletics by staking claim to billions of dollars in TV money?
On Thursday, U.S. District Judge Claudia Wilken presided over a hearing in an Oakland federal courthouse to decide class certification in a high-stakes battle. More than 100 lawyers were in attendance. What started out as a case that involved former NCAA athletes demanding money from ancillary merchandise like video games has morphed into one that potentially includes current NCAA athletes objecting to all the money that comes from TV networks.
It's Judge Wilken's responsibility to decide whether to certify a class of former athletes like Ed O'Bannon, Bill Russell and Oscar Robertson; to certify a class of athletes playing the games right now; to certify both; or to certify neither. According to a report from the hearing, it appears as though the judge is entertaining the big one.
The judge stated at the hearing that it was likely that she would ask for an amended complaint, according to USA Today. That's expected to include the name of a current NCAA athlete as a class representative. Michael Hausfeld, the plaintiff's lead lawyer, said he had "been anticipating this for quite some time and there are a number of current athletes who have expressed a desire and an interest in joining the case."
That doesn't necessarily mean that the judge will certify current athletes. A ruling won't come for weeks and possibly months. The defendants are still upset that the plaintiffs' claims have shifted "radically" during the course of the four-year-old case, and while acknowledging that to be true, Judge Wilken hasn't done anything to stop it. At least so far.
Initially, the lawsuit looked to be won over publicity rights. Electronic Arts has video games that lets users go into dynasty mode to control characters with the same jersey numbers and other identifiable characteristics of ex-players. But after the NCAA argued O’Bannon and others gave up their rights in release forms signed at the time they were in school, the case began focusing on the alleged antitrust injuries inherent in forcing athletes to sign waivers and having licensing partners enforce a boycott against ex-players making their own deals.
Then, an amended lawsuit proposed that current athletes be included as a class to remedy a situation where the NCAA allegedly set up "collusive restraints" not to pay athletes for "their names, images and likenesses in connection with live television broadcasts of games and video games."
In analyzing whether and how to certify the proposed classes, Judge Wilken will be examining factors such as whether the named plaintiffs properly represent a class, whether there's commonality in the questions of law and fact that support the claims and whether a class action is the best outlet to try the case. In addition, the judge will have to deal with the NCAA's objections over the shifting nature of the plaintiff's theories.
A trial could happen next summer, but if the judge certifies the class and puts billions of dollars in TV money and any newfound needed athlete consent at stake, there could be incentives towards a huge settlement that could close the chapter on amateurism in college sports.
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