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. In June 2013, the NCAA agreed to settle claims against the Association over college-themed basketball and football video games produced by Electronic Arts.
The NCAA defended its position in the O’Bannon case during a June 2014 trial and on Aug. 8, 2014, Judge Wilken issued her decision. The NCAA appealed the decision and is awaiting the decision from the 9th U.S. Circuit Court of Appeals.
|DATE:||LAWSUIT STATUS:||NCAA RESPONSE:|
|July 17, 2015||NCAA seeks stay in O’Bannon injunction||July 17, 2015: The NCAA has asked the 9th Circuit Court of Appeals to stay the injunction ordered by the district court. We have long maintained a stay would be necessary if a decision was not announced in a reasonable amount of time before the injunction becomes effective on Aug. 1. Since the injunction was ordered, the NCAA member schools have been working to understand the complexities of the injunction and the challenges related to its potential implementation. Read the full statement|
|June 1, 2015||Status of O’Bannon appeal||June 1, 2015: The NCAA continues to believe that Division I amateurism rules contested in the O’Bannon case are legal and that the 9th U.S Circuit Court of Appeals will overturn the district court’s order to the contrary. Until the appellate court issues its decision, however, it is too early to speculate what further appeals, if any, the NCAA might seek. As is often the case, members of its boards may have varying views. To be clear, the NCAA always has defended its principles vigorously and it has not ruled out any options about future appellate measures. Read the full statement|
|March 17, 2015||Ninth Circuit hears O’Bannon appeal||March 17, 2015: We appreciate the opportunity to state our viewpoint before the court. We maintain what other courts have acknowledged – the NCAA has not violated the law. As many courts have upheld, the NCAA and its members should be allowed to govern college athletics, and protecting college sports as a part of higher education remains important to the nearly half a million young men and women who compete each year. NCAA schools, together with student-athletes, will continue to make significant strides to improve their college experience on the field, on campus and in the classroom.|
|February 12, 2015||Appeal reply filed in O’Bannon case||February 12, 2015: We look forward to our opportunity to defend college sports in person with the Ninth Circuit on March 17. While the plaintiffs continue their attempt to direct the court away from antitrust law, we maintain what other courts have acknowledged – the NCAA has not violated the law. While there is still work to do, NCAA schools, including current players, continue to take significant strides to improving a student-athlete’s college experience on the field, on campus and in the classroom, including most recently at the NCAA Convention in January. Read the full statement|
|November 14, 2014||Appeal filed in O’Bannon case||November 14, 2014: Today's filing demonstrates why the appellate court should overturn the O'Bannon decision. As many courts have upheld, the NCAA and its members should be allowed to govern college athletics, and protecting that experience remains important to the nearly a half a million young men and women who compete at NCAA schools each year. Attempts by the plaintiffs and the district court to untether college athletics from the academic experience cut to the core of the student-athlete experience. Read the full statement|
|August 21, 2014||Notice of appeal filed in O’Bannon case||August 21, 2014: We are appealing the Court’s decision because we do not believe the NCAA has violated the antitrust laws. In its decision, the Court acknowledged that changes to the rules that govern college athletics would be better achieved outside the courtroom, and the NCAA continues to believe that the Association and its members are best positioned to evolve its rules and processes to better serve student-athletes. Read the full statement|
|August 20, 2014||Clarification of timing of O’Bannon injunction||August 20, 2014: We appreciate Judge Wilken clarifying that the injunction will have no effect on NCAA rules until August 1, 2015, and that any benefits would begin no earlier than the 2016-2017 academic year. NCAA rules remain in place and are enforceable for prospective and current student-athletes, which means that benefits extended or offers made must follow current rules. Read the full statement|
|August 8, 2014||NCAA will appeal O’Bannon decision||August 8, 2014: We remain confident that the NCAA has not violated the antitrust laws and intend to appeal. We will also be seeking clarity from the District Court on some details of its ruling. It should be noted that the Court supported several of the NCAA’s positions, and we share a commitment to better support student-athletes. For more than three years, we’ve been working to improve the college experience for the more than 460,000 student-athletes across all three divisions. Read the full statement|
|August 8, 2014||Judge Wilken issues decision in O’Bannon case||August 8, 2014: We disagree with the Court's decision that NCAA rules violate antitrust laws. We note that the Court's decision sets limits on compensation, but are reviewing the full decision and will provide further comment later. As evidenced by yesterday’s Board of Directors action, the NCAA is committed to fully supporting student-athletes. Read the full statement|
|July 10, 2014||Overview of NCAA brief||July 10, 2014: Today, the NCAA filed its post-trial brief, which summarizes the legal and factual arguments the Association made during the O’Bannon trial. In sum, the plaintiffs’ failed to meet their burden of establishing that the challenged NCAA rules violate antitrust laws. It is the position of the NCAA, as argued in the brief, that the rules that have been challenged in this case are essential to preserving amateur college sports in the United States, which are unique and distinct from professional sports. This position is supported by longstanding Supreme Court precedent. Read the statement|
|July 8, 2014||NCAA files post-trial brief in O’Bannon case||July 8, 2014: Despite their attempt to shoehorn their rhetoric into the framework of an antitrust case, the plaintiffs have failed to establish that the NCAA’s rules violate the law. Instead, the evidence presented at trial showed that the NCAA’s rules are essential to preserving college sports in the United States -- a unique model that provides opportunities for academic and athletic achievement to more than 460,000 student-athletes each year. Read the statement|
|June 27, 2014||O’Bannon trial concludes||June 27, 2014: We believe the evidence presented at trial—including testimony by presidents, athletics directors, conference commissioners, experts, former student-athletes (including the plaintiffs) and NCAA staff—clearly demonstrates how the current collegiate model of amateur sports provides student-athletes an unparalleled opportunity to learn and earn a college degree. Forcing changes through litigation to benefit only a select few would have far-reaching, detrimental effects on college sports as a whole, potentially reducing the opportunities for future generations of student-athletes to enjoy the benefits that make college sports special to its participants and fans. Read the full statement|
|June 9, 2014-June 27, 2014||O’Bannon trial in Oakland, Calif.|
|June 9, 2014||NCAA reaches settlement in EA video game lawsuit||June 9, 2014: The NCAA today agreed to settle claims against the Association over college-themed basketball and football video games produced by Electronic Arts. The agreement will end the Keller litigation and provide a monetary settlement to a class of video game plaintiffs. The settlement will award $20 million to certain Division I men’s basketball and Division I Bowl Subdivision football student-athletes who attended certain institutions during the years the games were sold. Read the full statement|
|April 11, 2014||Likeness case proceeds to a jury trial||April 11, 2014: Today, a federal court in Oakland, California rejected motions by both sides in the O’Bannon litigation that would end the case short of trial. The court said a jury, not the judge, should decide this case. We have confidence in the legal merits of our case and look forward to presenting it at trial. In the meantime, we are evaluating our legal options with respect to the decision. The model we have today enables nearly half a million student-athletes at over a thousand schools to compete on the playing field while getting a college degree. Read the full statement|
|January 13, 2014||Plaintiffs Respond to NCAA’s Summary Judgment Motion||January 13, 2014: This evening, the plaintiffs in the O’Bannon litigation filed a brief in response to the NCAA’s Dec. 12 summary judgment motion. Plaintiffs’ brief offers nothing new in this years-old litigation and simply underscores the fact that their core contentions are without merit and barred by the First Amendment. The plaintiffs’ filing fails to rebut the NCAA’s showing that NCAA rules fully comply with antitrust laws, because they are necessary to create the unique experience of Division I collegiate athletics. Read the full statement|
|January 13, 2014||NCAA files response to plaintiffs’ request for more discovery||January 13, 2014: Today the NCAA asked the court to deny the plaintiffs’ request for additional discovery. Fact discovery in this case closed approximately one year ago on Jan. 15, 2013. The plaintiffs now are requesting information regarding proposed rules changes or ongoing governance discussions. These requests are in large measure either cumulative of prior productions, irrelevant to the proceedings of this case, or both. Moreover, they seek to impede the ability of the NCAA to conduct its regular organizational activities and delay the progress of the case toward trial. Read the full statement|
|January 13, 2014||Supreme Court Denies NCAA Motion to Intervene in First Amendment Case||January 13, 2014: Today the Supreme Court denied the NCAA's request to intervene and review the Ninth Circuit's decision in Keller v. Electronic Arts Inc. The Keller case involves "right of publicity" claims brought by several former college football players who allege that their image and likeness appeared in Electronic Arts' NCAA Football videogame series without authorization. The plaintiffs argue that Electronic Arts, which produces NCAA Football, violated their "right of publicity" and conspired with the NCAA by using their images and likenesses in videogames, claims that the NCAA vigorously disputes. Read the full statement|
|December 12, 2013||NCAA files motion for summary judgment||December 12, 2013: the NCAA filed its motion for summary judgment in the student-athlete likeness case, urging the court to dismiss the plaintiffs’ case. The plaintiffs failed to identify any evidence that the NCAA’s rules violate the antitrust laws, and their demand for revenues from live broadcast licensing is preempted by the First Amendment right to televise newsworthy events. Read the full statement|
|November 8, 2013||Judge denies plaintiffs’ certification of damages class||November 8, 2013: “We have long maintained that the plaintiffs in this matter are wrong on the facts and wrong on the law. This ruling is one step closer to validating that position. We are pleased that the Court correctly found that conducting a class-wide trial for claimed damages for student-athletes who played college football and men’s basketball going back nearly a decade would be completely unmanageable and unprecedented.” Read the full statement|
|October 25, 2013||NCAA seeks U.S. Supreme Court review in Keller-EA Sports decision||October 25, 2013: The NCAA this evening filed a petition asking the U.S. Supreme Court to review the decision of the U.S. Ninth Circuit Court of Appeals in Keller v. Electronic Arts Inc. “The NCAA has taken this step in light of the important First Amendment issues raised in the case and to ensure that its membership is properly protected given the purported settlement between the plaintiffs and Electronic Arts,” Remy said. Read the full statement|
|October 25, 2013||Court denies NCAA motion to dismiss||October 25, 2013: We appreciate the court giving us the opportunity to raise the many issues identified in its ruling. We continue to believe the rules establishing the revered traditions of college sports are fully consistent with the antitrust laws, as the United States Supreme Court and other courts have repeatedly made clear. Today's decision means that this issue will be decided at a later stage in this proceeding, and we look forward to that opportunity. Importantly, the Court also recognized that the First Amendment presents serious questions regarding plaintiffs’ new claims concerning the alleged use of names, images and likenesses in live broadcasts of football and basketball games. We expect to seek judgment in our favor on these new live broadcast claims in our upcoming summary judgment motion.|
|September 17, 2013||NCAA files motion to dismiss in likeness case||September 17, 2013: Today, the NCAA filed its motion to dismiss the student-athlete likeness case. We appreciate this opportunity to demonstrate why the plaintiffs’ amended complaint should be dismissed and remain confident that the NCAA is correct on the facts and on the law. The law does not recognize publicity rights for individuals appearing in sports broadcasts, whether players, coaches, referees, cheerleaders or spectators. Also, the plaintiffs’ complaints alleging the NCAA’s amateurism rules violate antitrust law is contrary to clear precedent from the United States Supreme Court and many other previous cases. Read the full statement|
|July 30, 2013||NCAA seeks to respond in likeness case||July 30, 2013: The NCAA related to plaintiffs’ recently filed Third Amended Complaint in the In re NCAA Student-Athlete Name & Likeness Litigation cases. After four years of litigation, the antitrust plaintiffs have finally made the argument to the Court that they have frequently made in the press – that they would like to do away with the NCAA’s amateurism and eligibility rules and pay current student-athletes who might appear in a live broadcast of a football or men's basketball game. Among other things, the NCAA now asks the Court for an opportunity to respond to these arguments in the form of a motion to dismiss the claims, which previously were not directly before the Court and are simply wrong as a matter of law. Read the full statement|
|July 19, 2013||NCAA opposes professionalizing college sports||July 19, 2013: College sports today are valued by the student-athletes who compete and all of us who support them. However, the plaintiffs' lawyers in the likeness case now want to make this about professionalizing a few current student-athletes to the detriment of all others. Their scheme to pay a small number of student-athletes threatens college sports as we know it. Read the full statement|
|July 10, 2013||NCAA sends letter to plaintiff’s lawyer about student-athlete lawsuit participation||July 10, 2013: The NCAA has stated publicly and in court that it does not and will not retaliate against any student athlete for participation in legal action, including anyone who may choose to participate in the likeness litigation. Read the letter|
|June 21, 2013||Court requires student-athlete representation in order for plaintiffs to seek class certification||June 21, 2013: "We are pleased Judge Claudia Wilken recognized the plaintiffs have fundamentally changed their case. After misleading the court and the NCAA for four years, we hope any new complaint from the plaintiffs attorneys that may be required or allowed by the court will bring clarity to what they are seeking. It is difficult to predict how any court may rule, but we believe based on the facts and law of this case, the court should not certify a class." Read the full statement|
|May 31, 2013||NCAA files papers in connection with plaintiffs’ request for class certification||May 31, 2013: In its latest papers, which were requested by the Court in connection with the plaintiffs' request to certify a class action, the NCAA again showed that -- contrary to the claims of Ed O'Bannon and others -- there simply is no evidence that NCAA rules or forms are used to prevent former student-athletes from selling their name, image or likeness rights after graduation. As the NCAA has been saying since the beginning of this case, the evidence shows that former student-athletes frequently license, and are paid for, the use of their "collegiate image" after eligibility, and the NCAA does nothing to interfere with or stop this. Read the full statement|
|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.” Donald Remy, NCAA Executive Vice President and General Counsel. Read the full statement|
|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).” - 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.” - 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.” - 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.” - 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|