NCAA Athletes Drop Image-Use Damages Claim, Pursue Future Earnings

By | May 19, 2014

Ex-National Collegiate Athletic Association players suing to gain a share of the $800 million of annual broadcast revenue reaped by the organization said they won’t seek damages for past use of their images, instead focusing only on future licensing and earnings.

Lawyers for former University of California at Los Angeles basketball star Ed O’Bannon and other plaintiffs previously said they would ask a jury to award individual athletes damages, alleging the NCAA conspired to prevent them from being paid for the use of their names and images. That was after a judge denied their request to seek financial penalties for thousands of players at once, in a class action.

Forgoing damages would simplify the case, set for trial June 9, by eliminating the need for a jury and letting a judge decide whether to order the NCAA not to bar athletes from negotiating licenses, said a plaintiff’s lawyer in the case.

The O’Bannon case, which alleges violations of antitrust laws, is part of a movement by current and former college athletes to secure compensation, greater medical benefits and control over their images in a system that considers them amateurs. The athletes aren’t paid despite generating sponsorship, ticket and merchandise revenue in addition to that from television contracts.

U.S. District Judge Claudia Wilken in Oakland, California, who will preside over the trial, talked to lawyers in the case by phone yesterday about whether to keep the June 9 trial date or delay it until February, said Rob Carey, who represents ex- athletes suing over use of their images in video games. They were asked to submit filings on the matter by May 19, Carey said yesterday in a phone interview.

NCAA ‘Troubled’

NCAA attorneys said they were “troubled” by the last- minute decision to drop damage claims, according to a court filing. Settlement talks have failed to achieve any results ahead of the trial, they said.

The case may now focus solely on whether the NCAA can prevent current and former athletes from negotiating their own licensing deals with media companies and others that broadcast or sell footage of games.

“They would be far better off without a jury,” Carey said. “There’s not enough money to warrant it.”

A Seton Hall University poll conducted last month showed that 66 percent of respondents opposed salaries for student- athletes and 29 percent supported them.

The NCAA faces antitrust lawsuits over its scholarships, while the National Labor Relations Board said Northwestern University’s football team has the right to form college sports’ first labor union, a decision that could change the $16 billion business of top-level university athletics.

Little League

Fox Broadcasting Co., ABC Inc. and other broadcasters said giving individuals licensing rights would lead to “chaos” and calls “into question the telecasting of amateur sports altogether” because any athlete of any age — from Little League to high school — might claim a right to be compensated, according to a May 2 court filing.

Wilken found that the First Amendment doesn’t bar student- athletes from selling group licenses to use their names, images, and likenesses in live or recorded broadcasts.

All but one of the 18 players in the case, who include ex- Boston Celtics star center Bill Russell, “have instructed counsel that they will not be pursuing individual damages claims against the NCAA,” Michael Hausfeld, a lawyer for the athletes, said in a court filing. “The players do not intend to proceed before a jury.”

18 Players

A proposed verdict form Hausfeld filed earlier asked for damages for Russell, O’Bannon and 16 other players. The later filing didn’t indicate which player broke ranks.

Hausfeld didn’t immediately respond to a message left at his office seeking comment on the filing.

“The NCAA vigorously objects to the plaintiffs’ apparent last ditch effort to change course in this litigation,” NCAA lawyer Carolyn Luedtke said in a May 14 filing.

The players and the NCAA said in court papers filed yesterday that settlement talks in the case have been unsuccessful and further negotiations “are not likely to be productive.”

The case is In Re NCAA Student-Athlete Name and Likeness Licensing Litigation, 09-01967, U.S. District Court, Northern District of California (Oakland).

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