OAKLAND, Calif. (CN) - Former college athletes seek certification of their class action that claims the NCAA duped them into signing away their rights to profit from their own images in video games and other materials.
In a 2009 class action
, former UCLA basketball star Edward O'Bannon claimed the National Collegiate Athletic Association forced students to sign the misleading "Form 08-3a" if they wanted to play NCAA sports.
The form "commercially exploits former student athletes" by giving the NCAA the right to profit from their images without compensation, long after the athletes have left school, according to the complaint.
The athletes said the NCAA, Electronic Arts and the Collegiate Licensing Co. violated federal antitrust laws and conspired to restrain trade by fixing their compensation at $0.
The plaintiffs seek certification of two classes: a "declaratory and injunctive relief" class of NCAA basketball or football players whose images were used after they stopped playing college sports; and an "antitrust damages" class of athletes whose images have been licensed or sold.
The antitrust damages plaintiffs want the NCAA to disclose revenue data from its members for calculation of damages.
The NCAA claims that information is privileged and not relevant.
During negotiations with the NCAA, the antitrust plaintiffs agreed to restrict the time period, from July 2005 until the final judgment.
In their recent motion to certify the class, the athletes said: "It is undisputed that the NCAA and its member schools have agreed not to pay, and do not pay, current or former student-athletes in Division I football or basketball for the use of their names, images and likenesses in connection with television broadcasts of games and videogames."
Representing the athletes, Michael Lehmann, with Hausfeld LLP of San Francisco, wrote that the athletes have proved that their claims meet the criteria for certification. Lehmann cited a dissenting opinion in a 7th Circuit case involving NCAA contracts as evidence that college sports "have become big businesses."
"Despite the nonprofit status of NCAA member schools, the transactions those schools make with premier athletes - full scholarships in exchange for athletic services - are not noncommercial, since schools can make millions of dollars as a result of these transactions. Indeed, this is likely one reason that some schools are willing to pay their football coaches up to $5 million a year rather than invest that money into educational resources," Judge Joel Flaum wrote in the 1993 dissent.
Lehmann wrote for the plaintiffs that the NCAA could have compensated athletes in other ways "such as withholding payment until after graduation or paying student-athletes compensation in the form of increased living costs."
Suing as a class is the most efficient way of litigating the athletes' claims, Lehmann claims: "If proposed class members had to proceed with separate actions, this litigation would be unwieldy and unmanageable."
Lehmann also asked that his firm, with offices in Washington, D.C., and San Francisco, be appointed class counsel.
U.S. District Judge Claudia Wilken is scheduled to rule on the motion on March 7, 2013.