Antitrust Law Daily Wrap Up, TOP STORY—S.D. Cal.: $60M settlement of college athletes’ publicity rights suit gets final approval, (Jul 17, 2015)

By Linda O’Brien, J.D., LL.M.

The federal district court in Oakland, California has given final approval to the $60 million combined settlement of a class action suit by a group of current and former college student-athletes against the National Collegiate Athletic Association (NCAA), Electronic Arts, Inc., and Collegiate Licensing Company for conspiring with licensing companies for the use of their names, images, and likenesses in television broadcasts and video games (Keller v. Electronic Arts, Inc. July 15, 2015, Wilken. C.).

Samuel Keller, Byran Cummings, LaMarr Watkins, and Bryon Bishop, student-athletes who played on men’s football or basketball teams at Division I member schools and conferences, filed suit in May 2009 against the NCAA. The suit alleged that the NCAA violated federal antitrust law by conspiring with licensing companies, Electronic Arts Inc. and Collegiate Licensing Co. to restrain competition in two related national markets—the college education market and the group licensing market—for the commercial use of the student-athletes’ names, images, and likenesses in television broadcasts and NCAA brand video games. Specifically, the plaintiffs challenged NCAA rules that bar student-athletes from receiving a share of the revenue the NCAA and member schools earn from the sale of those licenses.

In April 2014, the court granted the plaintiffs’ motion for summary judgment on their antitrust claims against the NCAA and set their damage claims for a bench trial.

In September 2014, the court granted preliminary approval to the current class action settlement. The settlement class was also preliminarily certified and defined as follows: all NCAA Division I football and men’s basketball players listed on a roster published by a school whose team was included in the NCAA brand video game originally published or distributed from May 4, 2003 through September 3, 2014 and whose assigned jersey number appears on a virtual player in the software, or whose photograph was included in the software. The plaintiffs moved for final approval of the settlement.

Settlement. The court found that the settlement was fair, reasonable, and adequate. The plan of allocation provides a monetary recovery on a pro rata basis on the number of their season roster appearance points to all class members who file a timely claim. The nationwide notice program was extensive and robust, and included members of the class who could be identified through reasonable efforts. The previous appointment of the class representatives and class counsel were confirmed.

The court noted that the response to the proposed settlement was overwhelmingly positive and only three objections were filed. The objections to the requested attorneys’ fees, incentive awards, claims process, and scope of the release were rejected as meritless.

The case is No. 4:09-cv-1967.

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), Juan Carlos Araneda (Fisher & Phillips LLP), and Robert James Wierenga (Schiff Hardin LLP) for National Collegiate Athletic Association. Amber Melia Trincado (King & Spalding LLP) for Collegiate Licensing Co.

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

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