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Student-athlete likeness lawsuit timeline

In 2009, former Nebraska football student-athlete Sam Keller filed a lawsuit objecting to the use of the likenesses of former and current student-athletes in archival footage, as avatars (in video games), in photographs and promotions. The lawsuit later was consolidated with separate cases filed by former UCLA basketball student-athlete Ed O’Bannon, former Cincinnati basketball student-athlete Oscar Robertson and others.

The class-action suit brings claims against the NCAA, EA Sports and Collegiate Licensing Company under both antitrust and right of publicity and seeks compensation. In 2012, the plaintiffs sought to expand the class to include current student-athletes.

The NCAA objects to the claims put forward in the suit. A jury trial is currently scheduled for February 2014.

Lawsuit status NCAA Response
May 9, 2013: Judge denies plaintiff discovery motions

May 9, 2013: “Magistrate Judge Cousins denied two plaintiff motions and the O'Bannon plaintiffs the ability to gain several items in discovery and take several depositions they sought. He did however allow the Plaintiff's counsel to take very limited additional discovery, only after they admitted that they had failed to take discovery related to the claims of their expert, Dr. Roger Noll.” Read the full statement

Donald Remy, NCAA Executive Vice President and General Counsel

March 14, 2013: NCAA files brief opposing class certification in the student-athlete likeness litigation.

March 14, 2013: “We are pleased to move from the theory to the factual part of the case so we can show the court and the public what we have been saying all along: The NCAA is not exploiting current or former student-athletes but instead provides enormous benefit to them and to the public. This case has always been wrong -- wrong on the facts and wrong on the law. We look forward to its eventual resolution in the courts. Amateurism in intercollegiate sports has been repeatedly upheld by courts at all levels from the Supreme Court in 1984 to a District Court just last month (Rock v NCAA).” Read the full statement

Donald Remy, NCAA Executive Vice President and General Counsel

November 8, 2012: The NCAA filed a brief in federal court Thursday reiterating its position that plaintiffs not be allowed to expand the lawsuit to include current student-athletes and live broadcasts.

November 8, 2012: “Their old theory was wrong on the facts, and their new theory is wrong on the law. The U.S. Supreme Court and numerous lower courts have determined that the NCAA's amateurism rules are fully consistent with the nation’s antitrust laws. ” Read the full statement

Donald Remy, NCAA Executive Vice President and General Counsel

October 16, 2012: NCAA files a motion to strike down a move to change the nature of the lawsuit by attempting to include current student-athletes as part of a class-action suit.

October 17, 2012: “The motion to strike is a strong statement that the NCAA will not allow the plaintiffs to unfairly decide the direction of litigation, especially for lawsuits that have no basis of truth … Three years of litigation -- including discovery and depositions of plaintiffs -- have shown that their claims are not true. NCAA rules do not limit former student-athletes’ ability to monetize the rights to their likeness after college.” Read the full statement

Donald Remy, NCAA Executive Vice President and General Counsel

September 25, 2012: NCAA files a case management statement to provide its perspective on the state of the case in order to prevent unfair and severe prejudice to the NCAA.

September 26, 2012: “The simple, straightforward truth is that the NCAA has never licensed student-athlete likeness or interfered with their ability to sell or license their collegiate likenesses. Discovery has revealed what the NCAA has maintained throughout: those claims simply are not true. Plaintiffs themselves have admitted the NCAA has never interfered with former student-athletes’ ability to sell or license their collegiate likenesses.” Read the full statement

Donald Remy, NCAA Executive Vice President and General Counsel

August 31, 2012: O’Bannon files a motion to include current student-athletes in the class, seeking temporary trusts for current student-athletes, to be funded with proceeds for playing in football and basketball games which they claim is the sale of their names, images and likenesses. They want the trust available at the conclusion of their intercollegiate athletics eligibility.

September 1, 2012: “For the last three years plaintiffs' counsel have misled the press, the public and the court, basing their lawsuit on the notion that the NCAA has somehow prevented former student-athletes from participating in licensing opportunities after they have graduated from school.  Given what has come out in discovery, especially in the plaintiffs’ own words, they are forced to admit the accuracy of what the NCAA has said all along: there is not a shred of truth to plaintiffs' original allegations.  The NCAA does not make any attempt to prevent former student-athletes from selling or licensing their "collegiate likeness," nor has it ever done so.

Unable to prove their original claims regarding former student-athletes, plaintiffs have now abandoned those claims and are attempting to assert new claims on behalf of current student-athletes.  Unfortunately, this about face runs them smack into a very old argument, and one that the NCAA has defeated in court many times.  Plaintiffs now claim that the NCAA's financial aid rules restrain "trade" by preventing schools from "paying" for "labor" of certain current student-athletes by offering to share media royalties with those student-athletes.  They want to be cut in on TV revenues, but every court that has examined this type of issue has said that plaintiffs have no right to such a claim.  Many courts, including the United States Supreme Court, have repeatedly rejected the notion that the NCAA's financial aid rules violate the Sherman Act by preventing these sorts of commercial transactions between schools and current student-athletes.  Plaintiffs want the court to believe that student athletes are the same as professional athletes and unionized employees – which is pure fiction. We are confident that plaintiffs will find no more success in this case than they have in past cases.”

Donald Remy, NCAA Executive Vice President and General Counsel

October 6, 2011: Former San Francisco basketball student-athlete Bill Russell joins the lawsuit.

October 7, 2011: “Mr. Russell’s complaint mischaracterizes what the NCAA does with photos and video of its championships. Put simply, the Association owns and licenses the copyright on those contests. Mr. Russell, like the thousands of other student-athletes who played the game, can capitalize on his likeness, reputation, athletic and academic successes as a student-athlete after college. This can be done through post-college commercial endorsements, personal appearances, public speaking, autograph sessions and other avenues to negotiate and earn compensation.  The NCAA does not restrict Mr. Russell from financially capitalizing on his college accomplishments, and many other former student-athletes have done so regardless of whether they played professionally. Mr. Russell’s complaint and those like it would cause the NCAA to lock up its archive of championship contests, and they would be held hostage unless every student-athlete, coach, band member, cheerleader and fan in any photo or camera shot received compensation.  That is not how the law works nor should it be.”

Donald Remy, NCAA Executive Vice President and General Counsel

January 26, 2011: Former Cincinnati basketball student-athlete Oscar Robertson, former Connecticut basketball student-athlete Tate George and former Ohio State football student-athlete Ray Ellis join the suit.

September 2, 2011: “The suit is factually and legally wrong and not supported by evidence. NCAA rules do not apply to what former student-athletes do or do not sell after they graduate, or to how much money they do or do not receive.  The NCAA does not require current student-athletes to assign their rights in perpetuity as the suit alleges. Moreover, the NCAA does not claim to own the name, likeness or image of current or former student-athletes; nor does it attempt to license or sell such names, likenesses or images. It is common for former student-athletes to license or sell their names, likenesses, pictures, memorabilia. The NCAA does not -- indeed, cannot -- do anything to regulate or stop such transactions.

We are confident the court will agree the NCAA does not restrain trade in whatever markets might exist for former student-athletes' names, images or likenesses. Student-athletes do appear in contests sponsored by the NCAA and also by member schools and conferences; those appearances are consensual and made as amateurs--not for pay.  When those contests are recorded or broadcast, either the broadcaster or the sponsor obtains a copyright in the work. That copyright is exclusive, superior to, and preempts any rights of publicity which a participant or fan in the stands may possess. If such a copyrighted work is later rebroadcast or reused (in whole or in part), such use is still within the scope of the copyright.  However, many, if not all, of the entities facilitating such reuses obtain and pay for releases from participants. This certainly includes former student-athletes in an endorsement context for commercial/non-editorial use.”

Bob Williams, NCAA Vice President of Communications

 

“The NCAA does not license former student-athletes’ images. The NCAA owns its own championships and retains the copyrights in footage and pictures of those events as recorded or broadcast.   The revenues from licensing or selling copies of historical footage or games are modest.”

Bob Williams, NCAA Vice President of Communications

December 17, 2010: U.S. District Court of Northern California Judge Claudia Wilken denies NCAA motion to stay the case.

 

 

March 10, 2010: O’Bannon and Keller request the suit be certified as a class action.

March 10, 2010: “The number of plaintiffs does not change the fact that the N.C.A.A. does not license student-athlete likenesses or prevent former student-athletes from attempting to do so. Likewise, to claim the N.C.A.A. profits off student-athlete likenesses is also pure fiction.”

Erik Christianson, NCAA Director of Communications

 

April 2, 2010: “The class-action lawsuit filed by former UCLA basketball player Ed O’Bannon has prompted rampant misrepresentations of the facts. The NCAA does not license student-athlete likeness for any commercial purpose and therefore does not generate revenue through this type of activity. The extent of what the NCAA licenses is limited to its own copyrighted works, such as broadcasts and photos, and its marks or logos.  Student-athlete images may also be shown in connection with NCAA championship promotion.”

“Further, the NCAA does not prevent former student-athletes from profiting off their likeness. Former student-athletes can and do attempt to capitalize on their collegiate experience. The NCAA makes no attempt to interfere with former student-athletes when they do so. There are several examples of former student-athletes that sign endorsement deals and begin making money off their likeness as soon as they complete their eligibility – and in some cases before they play professionally. Subway restaurants signed Michael Crabtree, for example, before he was even drafted in the NFL. Former Florida quarterback Tim Tebow, who has yet to be drafted by the NFL, has started making money off of his likeness, selling autographs during a public appearance in Jacksonville in March.”

NCAA Statement to NBC News (Charlotte)

February 9, 2010: Wilken denies a motion to dismiss the suits, though she does dismiss other claims regarding right of publicity and breach of contract.

February 10, 2010: "We're pleased that the court recognized defects in some of the claims made by plaintiffs and dismissed those. The court's other rulings at this preliminary stage of the cases do not diminish the NCAA's confidence that we will ultimately prevail on all of the claims."

Erik Christianson, NCAA Director of Public and Media Relations

January 15, 2010: U.S. District Court of Northern California Judge Claudia Wilken grants a motion to consolidate several cases making similar claims against the NCAA, Collegiate Licensing Company and Electronic Arts Inc.

July 12, 2010: The NCAA “does not attempt to profit from the likenesses of Mr. Keller or any other student-athletes, nor does it license EA to use those images.”

Bob Williams, NCAA Vice President of Communications

July 21, 2009: Former UCLA basketball student-athlete Ed O’Bannon files a similar class-action antitrust lawsuit.

July 22, 2009: “The NCAA categorically denies any infringement on former or current student-athlete likeness rights.”

Bob Williams, NCAA Vice President of Communications

May 5, 2009: Former Nebraska football student-athlete Sam Keller files a lawsuit against the NCAA, Electronic Arts Inc. and the Collegiate Licensing Company objecting to the use of likenesses of former student-athletes in archival footage, as avatars (in video games), in photographs and promotions.

May 8, 2009: “Our agreement with EA Sports clearly prohibits the use of names and pictures of current student-athletes in their electronic games. We are confident that no such use has occurred.”

Bob Williams, NCAA Vice President of Communications