In a surprise move late Wednesday night, attorneys for the Ed O'Bannon plaintiffs wrote that none of their named plaintiffs want to pursue individual damages against the NCAA. The plaintiffs now want to pursue only the antitrust class-action case over names, images and likenesses with a bench trial decided by U.S. District Judge Claudia Wilken instead of a jury trial.
The late change throws a new wrinkle into the status of the trial and adds another decision Wilken must soon make. She is holding a status conference Thursday to discuss scheduling issues for the June 9 trial.
The NCAA has two pending motions to delay or redefine the trial. Now Wilken has a new issue regarding no interest in a jury trial -- after both parties submitted a flurry of motions Wednesday that included proposed verdict forms, jury questionnaires and witness lists.
In a joint statement, attorneys for the plaintiffs wrote, “In discussions that have extended into the evening, all but one of the named plaintiffs (who has been unavailable) have instructed counsel that they will not be pursuing individual damages claims against the NCAA.” The plaintiffs said they informed the NCAA Wednesday evening of that intention.
Lawyers for the NCAA objected to “the plaintiffs' last minute and abrupt decision to attempt to avoid having a jury decide the important issues in this consolidated litigation.”
The NCAA said that “up until hours before this evening's midnight deadline, the parties were working on a draft of this pretrial statement in which the ‘Plaintiffs' Requested Relief' section outlined individual damages amounts for each individual plaintiff by product, and the parties have been working jointly on jury instructions, a jury questionnaire, and a jury verdict form, with no mention that Plaintiffs planned to drop their damages claims and instead try their claims to the Court.”
The O'Bannon case had been divided into two separate trials -- a class-action suit by current and former athletes seeking an injunction against NCAA rules that prohibit football and men's basketball players from being paid, and individual damages against the NCAA from at least some of the named plaintiffs. Wilken previously denied the plaintiffs' attempt to seek individual damages as a class, meaning they would have to do so on an individual basis.
The NCAA disputes the plaintiffs' statement that Wilken required a decision by Wednesday on which plaintiffs would seek individual damages. According to the NCAA, Wilken said at a Feb. 20 summary judgment hearing that the plaintiffs would need to decide within 30 days of the trial whether they would seek individual damages and for what products.
Another set of plaintiffs, the Sam Keller plaintiffs, oversee the right-of-publicity videogame claims against the NCAA. Earlier this month, the Keller plaintiffs supported the NCAA's attempt to delay the trial if the videogame and antitrust claims were not separated.
Michael Hausfeld, the lead attorney for the O'Bannon plaintiffs, said in an interview that the Keller plaintiffs' decision to sever the videogame claims made a jury trial “problematic.” The O'Bannon plaintiffs' individual claims will not be tried in the future, Hausfeld said.
“This was a self-sacrificing move,” Hausfeld said. “The greater issue here is the need to change and reform the system, to fix an enterprise that's broken and disregards all of the principles that a business responding to legitimate open-market forces would have to.”
Hausfeld said the NCAA strongly objects to the plaintiffs' change “because the move actually strengthens the (plaintiffs') case. Because the case was always about the system, not an individual players' monetary recovery.”
Hausfeld said trying the individual claims had also become difficult due to the NCAA inserting witnesses who had never filed a declaration in an attempt to “defuse issues and divert attention from the wrongs of the system.” The injunctive case was always going to be tried before Wilken, not a jury, and all that changed is the individual damage cases are gone, Hausfeld said.
When asked what the change means for the Keller plaintiffs, Hausfeld replied, “Beats me. That's their decision.”
Steve Berman, an attorney for the Keller plaintiffs, called the O'Bannon plaintiffs' decision a "smart move." Berman wrote in an email, "The court seems to not be buying any of the NCAA's defenses so why risk a jury?"
Berman said he hopes to file today the settlement with Electronic Arts and Collegiate Licensing Company over the use of college athletes' names, images and likenesses in videogames. Berman did not respond when asked where the Keller plaintiffs' claims against the NCAA stand.
Rob Carey, another attorney for the Keller plaintiffs, said the O'Bannon decision doesn't affect the Keller claims and suggested his side could settle with the NCAA.
"We've had discussions with the NCAA," Carey said. "I think that's a possibility. In dealing with the NCAA, I don't get too optimistic. I think everybody is waiting to see how the trial plan lays out. We don't know if we're trying it to protect our own interests, whether it's split off, or what the trial plan will look like."