Antitrust Law Daily Wrap Up, ANTITRUST—N.D. Cal.: NCAA, EA permitted to file motions to dismiss in student-athlete antitrust case, (Sep 12, 2013)

By Edward L. Puzzo, J.D.

Defendants in a student-athlete antitrust suit were given leave to file motions of dismiss, but motions to strike portions of the complaint were denied, the federal district court in Oakland, California, has ruled (In Re NCAA Student-Athlete Name & Likeness Licensing Litigation, September 10, 2013, Wilken, C.).

Plaintiff student-athletes alleged that the defendants had engaged in antitrust violations when they, among other things, required the student-athletes to release their rights to compensation for the use of their images, which enabled the National Collegiate Athletic Association (NCAA) and Collegiate Licensing Company (CLC) to profit from license agreements with companies, such as Electronic Arts Inc. (EA), that distribute products containing student-athletes’ likenesses or names. After plaintiffs filed a Third Consolidated Class Action Complaint (3CAC), the defendants filed a number of motions.

Motions for Leave to File Motions to Dismiss. EA moved for leave to file a motion to dismiss, and defendant NCAA filed its own motion for leave to file a motion to dismiss. The court granted these motions, giving NCAA seven days to file its Motion to Dismiss not to exceed ten pages, which could not repeat any of the arguments previously raised in opposition to class certification. The court acknowledged that granting defendants leave to file further motions to dismiss will likely delay the progress of this case, but noted that plaintiffs contributed to the delay, the court stated, by raising a new theory of antitrust liability in their class certification motion at a late stage in the litigation.

NCAA Motion for Additional Briefing and an Evidentiary Hearing. The NCAA filed a motion for additional briefing and an evidentiary hearing on Plaintiffs’ pending motion for class certification. Because the NCAA was granted leave to file a motion to dismiss, the court ruled, its request for additional briefing and a hearing is not warranted. The NCAA was already granted leave to exceed the page limits for its class certification briefs and received extensive argument time at the class certification hearing, the court noted.

CLC Motion to Strike. The CLC first sought to strike any allegations in the revised complaint pertaining to products such as jerseys and trading cards, which were no longer part of the litigation. The court denied the motion, stating that none of the allegations regarding such merchandise was newly added to the revised complaint, and that CLC had failed to identify with sufficient specificity the allegations it sought to strike. The plaintiffs’ voluntary intention to not pursue certain theories did not necessarily require that particular allegations be ordered stricken from the complaint, the court ruled.

CLC also sought to remove four of the five recently added current student-athletes from the revised complaint on the grounds that plaintiffs had allegedly only been granted leave to add one. The court also denied this motion. Class actions, for logistical reasons, often involve multiple named plaintiffs as proposed class representatives, the court continued, and courts have broad discretion to permit joinder of new parties.

The case is Civil Action No. C 09-1967 CW.

Attorneys: Shana E. Scarlett (Hagens Berman Sobol Shapiro LLP) for Samuel Michael Keller. Robert James Slaughter (Keker & Van Nest LLP) for Electronic Arts Inc. Juan Carlos Araneda (Meckler Bulger Tilson Marick & Pearson LLP) for National Collegiate Athletic Association. Gennaro August Filice (Filice Brown Eassa & McLeod LLP) for Collegiate Licensing Company.

Companies: Electronic Arts Inc.; National Collegiate Athletic Assn.; Collegiate Licensing Co.

Cases: Antitrust CaliforniaNews