A federal judge said Thursday she will approve two settlements involving college football and men's basketball players who appeared in NCAA-branded video games, according to two plaintiffs' lawyers who participated at the preliminary approval hearing.
Also, U.S. District Judge Claudia Wilken disagreed with the NCAA's interpretation that its $20 million settlement with the Sam Keller plaintiffs and others releases all video game claims from the Ed O'Bannon case, O'Bannon attorney Michael Lehman and Keller attorney Leonard Aragon said. The O'Bannon antitrust case relates in part to video games and is separate from the video game settlement.
The O'Bannon lawyers had argued the video-game settlement could cause their clients to lose their ability to seek an injunction against the NCAA that relates to video games. The O'Bannon plaintiffs want an injunction against the NCAA's rules that would apply to video games, live television broadcasts, rebroadcasts and possibly other uses of athletes' names, images and likenesses.
Wilken's decision on Thursday “means the judge is now free to decide on an injunction that can encompass video games, as O'Bannon argued at trial,” Lehman said via email. Aragon said Wilken “essentially said she sees the release as only applying to the Keller claim and not having an affect on the O'Bannon claim” and she adopted language that will be in a future order.
The NCAA had argued that the proposed video games settlement is a “global settlement that releases claims for all current and former NCAA student-athletes, including the O'Bannon named plaintiffs.”
NCAA chief legal officer Donald Remy said in a statement Thursday, "We are pleased that the settlement was preliminarily approved, and maintain that this agreement should cover all video-game related claims."
Aragon said Wilken wanted to know the major changes between the original proposed settlement and the merged settlement presented to her. Electronic Arts and Collegiate Licensing Company settled for $40 million with video-game plaintiffs, and the NCAA settled for $20 million. The parties filed revised settlement terms earlier this week that removed a $5,000-per-year cap for players' claims.
“What we essentially told her is it's still two separate settlements,” Aragon said, “but we created one notice plan, one allocation plan and one claim form to try to get it all out to student-athletes, and she was fine with that. She said she will approve the settlement.”
Aragon said Keller's attorneys on Friday will send out subpoenas to all NCAA schools asking for the last known addresses of various football and men's basketball players who could have appeared in the video games from 2003 until 2014. As part of the settlement, the NCAA is required to help locate contact information and ask schools to cooperate.
Once the addresses are collected, the class notice for players to opt in or out will be sent through the mail and the plaintiffs' lawyers will promote the notice by social media and mainstream media. The notice may be sent out in around 60 days, Aragon said.