More than 100,000 current and former football and men's basketball players have potential claims to money from a proposed $40 million settlement over the use of their names and likenesses in NCAA video games, according to a settlement filed Friday night.
The settlement covers allegations made against Electronic Arts and Collegiate Licensing Company from four class-action lawsuits. The filing of the settlement comes shortly before the Ed O'Bannon antitrust case against the NCAA -- a related but separate suit -- is scheduled for trial on June 9. U.S. District Judge Claudia Wilken will review the settlement to determine whether to provide preliminary approval and potentially set in motion a lengthy process to distribute funds to players who appeared in video games.
Some current college athletes will be eligible for payments, creating a scenario in which they are paid for use of their likeness while still a college athlete. NCAA rules prohibit athletes from making money off their name in school, but there is a recent precedent for this to happen.
While in college, former Texas A&M quarterback Johnny Manziel sued a man who sold shirts using the football player's trademarked "Johnny Football" nickname. The NCAA said then it would allow Manziel to collect damages if his corporation's lawsuit won.
"That's one of the most interesting things is what's the NCAA going to say about eligibile players?" said Leonard Aragon, an attorney for the Sam Keller plaintiffs in the video game settlement. "It's our opinion that it's the same thing here as Manziel. If someone stole your laptop, you'd be able to get payment and still be considered an amateur. Here, right of publicity is a property right."
NCAA spokeswoman Stacey Osburn said the association is reviewing the terms of the settlement.
In an interview Monday, NCAA chief legal officer Donald Remy said the NCAA only saw the settlement in its final form last Friday and needs to carefully read the provisions before determining whether to object to the court.
"It has a lot of different components from an NCAA perspective and litigation perspective," Remy said. "We've got to have our lawyers look at it, we've got to have our student-athlete membership affairs look at it to make sure we really understand what it says, what it doesn't say, what it does and doesn't do."
Rob Carey, another attorney for the Keller plaintiffs, estimated that approximately 7,000 current college football and men's basketball players are eligible for video game payments. That roughly equates to about 20 percent of the current college players at the schools involved in the past video games, Carey said. EA discontinued its NCAA basketball video game in 2009 and dropped its NCAA football video game for 2014 due to the litigation.
The named plaintiffs will receive the following amount of money:
• $15,000 to former Arizona State/Nebraska football player Sam Keller
• $15,000 to former UCLA basketball player Ed O'Bannon
• $15,000 to former Rutgers football player Ryan Hart
• $5,000 to former West Virginia football player Shawne Alston
• $5,000 to the remaining plaintiffs who were deposed
• $2,500 for all other named plaintiffs
According to the filing, the plaintiffs' attorneys will seek fees not to exceed 33 percent of the proposed settlement ($13.2 million) and expenses not to exceed $2.5 million. A document says those figures are “particularly reasonable in light of the advanced stage of litigation in the O'Bannon case. In that case alone, lodestar exceeds $30 million and expenses exceed $4 million.”
The NCAA, which has not settled its video-game claims, is part of an ongoing antitrust lawsuit against plaintiffs led by O'Bannon. Michael Hausfeld, the lead attorney for the O'Bannon plaintiffs, denied that his side's attorney fees in the antitrust case are more than $30 million.
“It is not that much,” Hausfeld said. “I don't know where they came up with that number.”
Aragon said he is not sure where the $30 million figure came from. "If anything it does say what the stakes are for the trial that's about to start," he said. "Just attorneys' fees would be a significant number."
EA can cancel the settlement “if a certain number of class members opt out,” according to the settlement filing. The specific number of class members who would have to opt out was redacted in the public filing.
The amount of money that could be paid to players who opt into the class could range from less than $100 to a couple thousand dollars. That depends in part on how many players make valid claims, whether they were on a football or men's basketball roster or had a virtual avatar in the game, and the number of years in which they were part of a video game.
Aragon said the plaintiffs are hoping to get a claims rate of 25 percent. Because of the difficulty of locating former players, the plaintiffs plan to do a national notice campaign if Wilken approves the settlement. A preliminary approval hearing is scheduled for July 3.
The attorneys estimate that players who appeared in a video game from 2003 to 2005 would receive between $96 and $517 per roster year appearance, depending on how many people make claims. For players who appear in video games since 2005, the estimate is $166 to $951 per roster year appearance. If a player only appeared on a roster and not a video game from 2005 to 2014, the range is $48 to $276 per roster year.
For example, if a player at the University of California appeared in the video game for four seasons from 2007 through 2011, and assuming a 50 percent claims rate, that player's estimated recovery would be $1,328 to $1,904. In another example, if a player was on Cal's roster for four seasons from 2005 to 2009 but did not appear in the video game, and assuming a 25 percent claims rate, that player would recover between $772 and $1,104.
The filing notes that some NCAA football teams assign the same uniform number to two players (one offense, one defense). In those situations, the class administrator will determine which athlete appears in the game by reviewing which position the player is depicted as and/or what home state he is identified as coming from on the school roster.
“This approach can easily be applied to the class,” the filing says. “EA is disclosing, as part of confirmatory discovery, electronic spreadsheets containing the criteria described above that the claims administrator can use to identify virtual players in NCAA-branded video games.”
The settlement said that to the extent electronic data is incomplete the plaintiffs “pulled the school, assigned uniform number, position, sport/division, and home state directly from the roster files stored on each NCAA-branded video game.”
That's potentially crucial evidence for the Keller plaintiffs' ongoing right-of-publicity claims against the NCAA, which is set for trial in March 2015. The NCAA has denied that EA's games use college athletes' names, images or likenesses.
As recently as May 14, the NCAA wrote in a court filing “the claims against the NCAA based on EA's NCAA-themed video games are not supported because those games do not utilize the name, image or likeness of college football and men's basketball players. Instead, EA's NCAA video games utilize generic faces and images of football and basketball players that are not based on actual individuals.”
Aragon said settlement talks between the Keller plaintiffs and the NCAA are continuing. Remy, the NCAA chief legal officer, confirmed those conversations are "ongoing."
"There's no current discussion of the settlement of the O'Bannon (antitrust) case so we're prepared for the June 9 trial date," Remy said.