Antitrust Law Daily Wrap Up, ANTITRUST—N.D. Cal.: Trial continuance and interlocutory appeal denied in student-athletes’ antitrust action against NCAA, (May 27, 2014)

By Linda O’Brien, J.D., LL.M.

In an action by current and former college athletes against the National Collegiate Athletic Association over its prohibition on student-athlete compensation for the use of their names, images, and likenesses in television broadcasts and video games, the Association’s motion to continue the trial of the antitrust claims or sever certain claims was denied, the federal district court in Oakland, California has ruled (In re NCAA Student-Athlete Name & Likeness Licensing Litigation, May 23, 2014, Wilken, C.). The Association’s motion to certify an interlocutory appeal of the court order granting summary judgment on the college athletes’ antitrust claims was also denied.

A group of current and former college athletes (Antitrust Plaintiffs) who played on men’s football or basketball teams filed suit against the National Collegiate Athletic Association (NCAA), alleging that the NCAA violated federal antitrust law by conspiring with licensing companies to restrain competition in the market for the commercial use of their names, images, and likenesses in television broadcasts and NCAA brand video games. A second group of current and former college athletes (Right of Publicity Plaintiffs) alleged that the NCAA and Electronic Arts, Inc. misappropriated their names, images, and likeness for use in NCAA brand video games. In April 2014, the court granted the antitrust plaintiffs’ motion for summary judgment on their antitrust claims against the NCAA and set their damages claims for trial. Subsequently, the NCAA moved for to continue the trial or sever the antitrust claims. The NCAA also moved to certify an interlocutory appeal of the court order granting summary judgment.

The court found that a continuance of the trial for the antitrust claims was not justified. The Antitrust Plaintiffs and Right of Publicity Plaintiffs originally filed separate actions and would have proceeded to separate trials had the cases not been consolidated. In rejecting the NCAA’s argument that the antitrust claims could not be tried before the right of publicity claims under the Seventh Amendment right to a jury trial, the court noted that the NCAA did not demonstrate that the two claims raised overlapping issues that required they be tried together. The court had the discretion to deconsolidate the cases for trial so that the NCAA’s right to a jury trial on the right to publicity damages claims would not be infringed by trying the Antitrust Plaintiffs’ equitable claims first. Moreover, the severance of the Antitrust Plaintiffs’ claims related to video games from their claims related to live game broadcasts and archival footage would not avoid duplicative litigation or conserve judicial resources since the claims overlapped, the court noted.

Additionally, the court determined that the certification of an interlocutory appeal was not justified. A district court may certify an appeal of an interlocutory order if (1) the issue to be certified involves a controlling question of law; (2) there is substantial ground for difference of opinion on the issue; and (3) it is likely that an interlocutory appeal will materially advance the end of the litigation. The NCAA argued that there was no market for group licenses for use of college athletes’ names, images, and likeness in live television broadcasts because the First Amendment precluded the college athletes from asserting any publicity rights in those broadcasts. According to the court, the First Amendment issue did not represent a controlling question of law and, if resolved in NCAA’s favor, would only affect the outcome of the Antitrust Plaintiffs’ broadcast claims and not their video game or archival footage claims. Finally, an interlocutory appeal would not materially advance the ultimate termination of the litigation since the appeal would require a continuance of the trial, the court concluded.

The case is 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. Glenn Douglas Pomerantz (Munger Tolles & Olson) for Nat’l Collegiate Athletic Association.

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

Cases: Antitrust CaliforniaNews