Lawyers for one set of plaintiffs involved in the Ed O'Bannon case agree with the NCAA's position to sever videogame claims and evidence from the scheduled June 9 trial and potentially delay the case altogether.
The O'Bannon lawsuit is fighting two different fronts regarding the alleged use of college athletes' names, images and likenesses. There's an attempt to end NCAA rules that prohibit football and men's basketball players from being paid through live broadcast revenue. And there's an attempt to seek damages from the NCAA over alleged use of athletes' likeness in past videogames.
The O'Bannon plaintiffs, led by attorney Michael Hausfeld and his firm Hausfeld LLP, oversee the antitrust claims. Lately, they are largely focused on live broadcasts that seek an injunction to change the NCAA's rules, although their claims also involve videogames.
The Sam Keller plaintiffs, led by Hagens Berman Sobol Shapiro LLP, have the lead role in the right-of-publicity videogame claims against the NCAA. The lawsuits were initially filed separately and later consolidated.
On Friday night, lawyers for Keller — a former Nebraska and Arizona State quarterback — filed a motion that said that if the claims are not separated at trial, they want to delay the trial. The NCAA has previously sought that as well. The Keller plaintiffs are attempting to protect their claims against the NCAA from overlapping litigation.
The Keller plaintiffs said they can be ready for trial in six months once U.S. District Judge Claudia Wilken lifts a stay that has prevented discovery from being accumulated. If Wilken decides the antitrust case won't impact the right-of-publicity trial, the Keller plaintiffs said they have no position on the NCAA's request to delay the trial.
The videogame-related claims are “not ripe for trial” because discovery is not completed, the Keller plaintiffs wrote. They said the O'Bannon plaintiffs cannot “adequately represent” the interests of the Keller plaintiffs because the two classes have “divergent interests.”
Videogame claims for a number of plaintiffs were also made against Electronic Arts and Collegiate Licensing Company, which announced a settlement last September. The NCAA was not part of the proposed settlement and a final version has yet to be filed to the court. The NCAA then sued EA and CLC for not protecting the NCAA over videogame claims.
EA and CLC filed a motion Friday supporting the NCAA's request to sever the claims and delay the trial. They wrote that the preliminary settlement is close, but said final approval will take months and that they would be “unfairly prejudiced” if the NCAA is tried on videogames starting June 9.
EA and CLC said there's the potential for overlapping damages, a trial could endanger the settlement, and plaintiffs could have “two bites at the apple” and claim they are entitled to re-try videogame issues from the first trial. Finalizing the settlement will involve notifying thousands of former football and men's basketball players depicted in EA videogames, meaning they could be deciding whether to opt in or out of the settlement during the trial.
Also Friday, eight media companies — CBS, Fox, Turner, ABC, NBC Universal, A&E, NPR and Discovery — filed a brief supporting the NCAA in its attempt to appeal a First Amendment issue for the trial. The companies, along with the Reporters Committee for Freedom of the Press, are jointly trying to file the brief to persuade Wilken to let the NCAA appeal a First Amendment issue to the 9th U.S. Circuit Appeals.
Wilken ruled on April 11 that the First Amendment does not guarantee media organizations unlimited rights to broadcast entire college football and basketball games — a defense used by the NCAA. She concluded that the question of whether athletes hold any ownership rights in their athletic performances depends on whether the athletes validly transferred their rights of publicity to another party, such as a school, conference or broadcaster.
In their brief Friday, the media organizations wrote that Wilken's ruling calls into question “settled expectations regarding the broadcasting of sporting events. The ruling therefore has the potential to affect matters well beyond the confines of this case, regardless of the outcome of any trial proceedings here.”
The O'Bannon plaintiffs opposed the NCAA's interest to appeal and described the NCAA's recent motions on a number of fronts as a “desperate eleventh-hour move” to have claims severed without mention of the videogame issues or to delay the trial.
“The NCAA's motives here are transparent; it is doing everything in its power to avoid a trial on the antitrust claims,” O'Bannon's lawyers wrote. "Respectfully, the Court should not permit these diversionary tactics, especially in light of the fact that the (plaintiffs) are diligently working to comply with various pretrial deadlines."
The O'Bannon plaintiffs said the timing of the filings were not coincidental since they occurred at the time lawyers were preparing for the exchange of jury instructions, trial exhibit lists and deposition designations. Issues surrounding the $40 million settlement agreement with EA and CLC were resolved April 14 and will be filed to the court shortly, the O'Bannon plaintiffs said.
In a statement released Saturday, NCAA chief legal officer Donald Remy said, “All interested parties other than Mr. Hausfeld and his O'Bannon clients agree: the antitrust case scheduled for trial on June 9 should not go forward with videogame-related claims that are now at risk of being tried two or three times. The unanimity of opinion, including not just defendants but also all non-O'Bannon plaintiffs, demonstrates that granting the motion to sever would avoid prejudice and massive, unnecessary duplication of effort. Mr. Hausfeld and his clients are alone in their opposition to the motion, and their amped up rhetoric should be dismissed for what it is: a smokescreen to distract from the merits and promote their PR agenda."