The NCAA and the Sam Keller right-of-publicity plaintiffs filed a joint statement Monday proposing their names, images and likenesses lawsuit begin Feb. 23 instead of next month. In a separate filing, the Ed O'Bannon plaintiffs said their antitrust trial against the NCAA should proceed June 9 and won't negatively impact a possible February jury trial over video games.
In a conference call last week, US District Judge Claudia Wilken asked all parties in the names, images and likenesses case to submit their opinions on how to proceed with the consolidated case as the trial nears.
The O'Bannon plaintiffs last week dropped individual damage claims against the NCAA before a jury trial in order to keep their antitrust case on course for a June trial decided by Wilken. In that scenario, Wilken would decide in June whether to issue an injunction prohibiting the NCAA from limiting what football and men's basketball players can receive for playing college sports.
The O'Bannon case is actually two different suits that long ago got consolidated. The other set of plaintiffs is led by Keller, a former Arizona State and Nebraska quarterback. They oversee the right-of-publicity video-game claims against the NCAA that have also included the O'Bannon plaintiffs.
Earlier this month, the Keller plaintiffs supported the NCAA's attempt to sever video games from the June trial. That caused the O'Bannon plaintiffs to change strategies in an attempt to salvage next month's trial date.
The O'Bannon plaintiffs wrote Monday there are no overlapping issues of any significance between the two sets of claims. In the document, the O'Bannon plaintiffs quoted the Keller plaintiffs several times explaining the differences between the cases that would warrant deconsolidation.
"At the May 15 hearing, the parties and the Court identified only two potential areas of overlap: (1) whether college athletes' likenesses appeared in Electronic Arts, Inc.'s ... NCAA-branded video games and (2) whether college athletes consented to that use of their likeness in videogames," the O'Bannon plaintiffs wrote.
Some evidence of athletes' likenesses in EA video games will likely be presented at the June trial, such as O'Bannon testifying, the O'Bannon plaintiffs wrote. But they say the issue of whether the games included actual likeness "is not critical to the claims for injunctive and declaratory relief that the [plaintiffs] will present."
Rob Carey, an attorney for the Keller plaintiffs, said Wilken appeared "pretty clear" last week that she would not let video games be tried twice. Carey said trying even portions of the same case twice would be inefficient and could lead to different rulings.
"I think she's going to sever out the video-game component and try that separately in February and try everything else June 9," Carey said.
The O'Bannon plaintiffs cited a past NCAA filing that said the two cases are "separate and distinct." Since last week's conference call with Wilken, the NCAA has not yet weighed in through court filings on the merits of split trials.
Regarding the rights-of-publicity claims, the NCAA and Keller plaintiffs laid out a proposed pre-trial schedule. It includes a class certification hearing on Aug. 29, a discovery cutoff date of Oct. 1, summary judgment motions due by Oct. 15, and a final pretrial conference on Feb. 11 -- which would be 12 days before the jury trial.
The Keller plaintiffs also suggested a schedule for the settlement between Electronic Arts and Collegiate Licensing Company, which could be filed this week for preliminary court approval. Under the proposal, there would be an Aug. 22 hearing for preliminary approval, notice would be sent to class members on Sept. 15, and a final hearing would likely be in 2015.