Student athletes granted class request in image rights case

A group of student athletes has been granted class certification in its antitrust and rights of publicity battle with the US National Collegiate Athletic Association (NCAA).

On November 8, the US District Court for the Northern District of California ruled that the group of plaintiffs, 25 current and former student athletes who have played for NCAA Division I men’s football and basketball since 1953, may pursue injunctive relief as a class in its case against the NCAA.

However, the group may not seek damages as a class, as it is unclear what athletes were harmed and to what degree.

Former starting quarterback for Arizona State University and University of Nebraska, Sam Keller, brought the suit against the NCAA, video game maker Electronic Arts Inc (EA) and the Collegiate Licensing Company (CLC) in 2009.

He alleged the defendants had unlawfully used student athlete likenesses in EA-produced video games, despite prohibitions on the use of student names and likenesses in NCAA bylaws, contracts and licensing agreements.

While the players in the EA games did not have actual student names, vital statistics like position, height, weight, team number and school year appeared to be modelled on the student athletes.

In the initial complaint, it was alleged that EA had sent questionnaires to team equipment managers.

A number of co-plaintiffs later joined Keller, raising claims of antitrust and rights of publicity.

Four of the plaintiffs alleged that the NCAA misappropriated their names, images and likenesses in the EA games series NCAA Football, NCAA Basketball and NCAA March Madness.

The remaining 21 argued that the NCAA violated federal antitrust law “by conspiring with EA and CLC to restrain competition in the market for the commercial use of their names, images and likenesses”.

Earlier this year, EA and CLC announced they would settle, paying the plaintiffs a reported $40 million.

Richard Stockton, a principal shareholder at law firm Banner & Witcoff Ltd in Chicago, said that class certification increases the significance of the case “by maybe two orders of magnitude”.

He said that everyone in the US has a right of publicity: “It’s an economic right that’s based on the right of an individual to have the ability to commercially exploit their own name and likeness.”

While there is no limit to how many players may join the class, those who have been damaged in the past may not join, he explained: “The class is prospective, not retrospective.”

He expects that the class certification will be appealed and fought “vigorously” by the NCAA, though he said it is possible the parties will reach a settlement agreement.

When asked what kind of impact a ruling in the students’ favour may have on video game makers, he said: “It’s conceivable that EA would have to get the students’ permission to use their names and likenesses as best practice.”