Daily Compliance Item- 8/16/13- Current Event

Lawyers for O’Bannon ask judge to deny defense motions


Attorneys for former UCLA basketball star Ed O’Bannon and other plaintiffs in a lawsuit concerning the use of college athletes’ names and likenesses said in a filing late Monday night that recent motions in the case by the NCAA and other co-defendants are “a transparent attempt to delay” a decision about certifying the case as a class-action and should be denied.

The filing added that if the defendants’ motions are granted, the resulting proceedings “would no doubt consume the parties – and the Court – for years” before U.S. District Judge Claudia Wilken could rule on the plaintiffs’ bid for class-action status.

In addition, the filing indicated that the case will continue to be about licensed college merchandise, even though the plaintiffs’ lead attorney, Michael Hausfeld, said during a hearing in June that “jerseys and bobble heads and all of that are out” with respect to the plaintiffs’ damages claim.

Sales of replica jerseys bearing numbers of current star players gained attention last week when ESPN analyst Jay Bilas pointed out that the NCAA’s merchandise website was allowing customers to search for jerseys by players’ names — a function that subsequently was disabled. NCAA President Mark Emmert later said the association will stop selling schools’ merchandise through the NCAA’s website.

The NCAA, video game manufacturer Electronic Arts and Collegiate Licensing Co. (CLC), the nation’s leading collegiate trademark licensing and marketing firm, each have filed motions in response to the plaintiffs’ July 18 filing. That amended complaint included the addition of current college athletes as named plaintiffs.

The NCAA and EA each separately asked Wilken for the opportunity to file a motion seeking their dismissal from the case before she rules on class certification. CLC asked for the removal of four of the five remaining active-athlete plaintiffs and a reduction in the case’s scope.

The plaintiff’s filing Monday night said some of the defendants’ arguments and requests, “verge on the nonsensical,” are “astonishing,” “absurd,” and “astounding.”

The NCAA, if not EA and CLC, will be able to file a reply.

EA spokesman John Reseburg and CLC spokesman Andrew Giangola said their companies had no comment. NCAA spokeswoman Stacey Osburn said the association also had no comment.

Monday night’s filing noted that Wilken, in a prior ruling, had said the defendants “shall not” file additional requests for dismissal until they make a motion for summary judgment — a ruling in their favor on the merits of the case before a trial. Such a motion presumably would occur after Wilken has decided whether the case should become a class action.

If Wilken certifies the suit as a class action, it could allow thousands of former and current NCAA Bowl Subdivision football and men’s basketball players to join the case. That could create the possibility of a damages award in the billions. In addition, if the plaintiffs were to get everything they have said they are seeking, it would force the establishment of an entirely new compensation arrangement for current FBS football players and Division I men’s basketball players — one under which “monies generated by the licensing and sale of class members’ names, images and likenesses can be temporarily held in trust” until their end of their college playing careers.

And the plaintiffs, in a footnote that was part of Monday night’s filing said that even with merchandise not playing a part in their damages claim: “Of course … a Court order forbidding the continued enforcement of the [NCAA’s] bylaws … which preclude student-athletes from sharing in the revenue generated from the licensing of their name, image, and likeness—will likely impact products such as jerseys and trading cards.”

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