In 2009, former Nebraska student-athlete Sam Keller filed a lawsuit claiming the NCAA prevented him from profiting from his likeness after he graduated. 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.
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.
Dr. Noll's testimony is by and large the sole support for their legal challenge to the NCAA's bylaws. Plaintiffs' failure to take discovery on this central issue only underscores the dramatic shift in their theories since the case was filed in 2009, as well as the lack of actual facts to support Dr. Noll's testimony.
We are pleased with the court's ruling and the admissions the plaintiffs' lawyers made today highlighting the weaknesses in their theories. We look forward to the additional discovery shining a light on the reasons why this case is not a proper class action.
Publish date: March 14, 2013
The NCAA today filed its brief opposing class certification in the student-athlete likeness litigation. The brief -- supported by overwhelming evidence and expert reports -- was filed in San Francisco federal court.
The filing shows that the theories of the plaintiffs are not supported by facts, economics or the law. It further demonstrates that plaintiffs should not be allowed to pursue a class action based on inaccurate theories and speculations aimed at destroying amateurism in college athletics.
The following is a statement from Donald Remy, NCAA Executive Vice President and Chief Legal Officer:
“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).”
Publish date: Nov. 9, 2012
The NCAA took another step this week to defend its longstanding principles of amateurism in the current O’Bannon case regarding student-athlete likeness.
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.
The following statement from Donald Remy, NCAA Executive Vice President and General Counsel, provides further explanation:
“Our latest brief clearly demonstrates the papers plaintiffs filed on Nov. 1 effectively concede all of the points made in the NCAA motion to strike the plaintiff’s class certification brief.
“Specifically, plaintiffs did not, because they could not, point to any places in their complaints where they set forth their new ‘pay-for-play’ theory. In addition, they were not able to show in their complaints that they were suing over the distribution of live broadcast revenue.
“Furthermore, the plaintiffs do not explain why their class certification motion now depends entirely on a liability theory they insisted they were not pursuing just a few months ago.
“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.
“The NCAA is confident that the court will see through plaintiffs’ transparent attempt to conduct litigation by ambush, and grant our motion to strike.”
Publish date: Oct. 18, 2012
The NCAA continues to defend itself against claims that it misuses student-athlete likeness.
In its latest action, the Association has filed a motion in federal court to strike down a move by opposing lawyers to essentially change the nature of the lawsuit by attempting to include current student-athletes as part of the class and to include live broadcast as part of the case.
The following statement from NCAA Executive Vice President and General Counsel Donald Remy addresses the latest action:
“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.
“The plaintiffs, including Ed O’Bannon, Bill Russell, and Oscar Robertson, first incorrectly claimed that the NCAA forced student-athletes to forever sign away any rights to license or sell their collegiate image or likeness as former student-athletes. 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.
“Now, the plaintiffs have essentially admitted by seeking to certify and expand the class of individuals in the lawsuit what the NCAA has maintained all along—that this lawsuit lacks any truth. They have basically deserted the claims of O’Bannon, Russell, and Robertson and are trying to bring a backdoor suit against the NCAA’s core principle of amateurism. This is an astonishing admission that their original claims are invalid.
“The NCAA expects whatever plaintiffs remain to drop their suit and motion for class certification and to admit that, after three years of trying their case in the court of public opinion, they have abandoned the original plaintiffs. If they wish to file a new lawsuit, the NCAA will defend itself again and seek to recoup all costs and other appropriate relief as allowed by the courts. The allegation that so-called “pay for play” is mandated by antitrust law has been repeatedly repudiated by courts at every level, including by the United States Supreme Court. The NCAA is confident that its position is correct.”
Publish date: Sept. 26, 2012
By Donald Remy
NCAA Executive Vice President and General Counsel
In recent days, the selective release of misleading information in relation to a lawsuit has created much confusion. For background, a group of former student-athletes sued the NCAA because they claimed the Association prevented them from profiting from their likeness after they graduated, while at the same time supposedly selling their publicity rights.
Let’s be clear: this claim is not based in fact. The former student-athletes concede as much in their sworn testimony.
This week, the NCAA filed public pleadings in this case, which make clear the claim is based on a theory not supported by the facts.
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. In fact, these former student-athletes and others have been paid for the use of their likeness and college experience in everything from movies, ads and books, to trading cards and bobbleheads.
Q: Has the NCAA ever suggested to you that you’re not allowed to sell your name or likeness?
Q: You’re free to do that?
Q: You’re free to do that, right?
Q: You’re free to do that?
Q: And you’ve done that . . . right?
Q. What were the terms that you came to with ESPN?
A. The terms were that Bobby and I were going to get a hundred thousand dollars a piece, around a hundred apiece for participating.
Q. All right. So you agreed to grant ESPN certain rights, correct?
Q. And again, were you granting them the rights to use your name, likeness, life story in connection with your playing days at Texas Western?
MR. CLOBES: Objection to form.
THE WITNESS: Don't remember, don't recall.
BY MR. BOYLE: Q. But they were going to pay you a hundred thousand dollars a piece, correct?
Q. Did you --
A. Plus royalties.
Q. What was ESPN going to do with those rights? Were they going to make a movie, was it a documentary?
A. Movie for TV.
Much of the information released in the past week was taken out of context and reflected the views of people speculating about the NCAA's licensing practices, or what changes might be made to NCAA rules.
This speculation did not reflect the NCAA's actual rules and practices, possibly because that evidence completely undermines plaintiffs' claims. As is evident in the NCAA's filing, it is indisputable that the NCAA has never licensed EA Sports to include student-athlete names, images or likenesses in its video games.
Q: Would you read paragraph 1 for the record, please.
A: Yes. Paragraph 1 reads, "Current NCAA student-athletes with athletics eligibility remaining or their names, pictures, or likenesses may not be used in any advertising, marketing, or communication activities."
Q: Based on your years of experience at the NCAA, is that a correct statement of NCAA policy?
A: Yes, that is a correct statement.
Q: Based on your years of experience at the NCAA, has that been a consistent practice of the NCAA?
A: It has been. And I should point out that although these guidelines have been revised from time to time, that -- that piece has not changed.
Further, the NCAA does not obtain waivers from student-athletes related to the EA games because it neither authorizes nor permits those games to use the names, images or likenesses of current student-athletes.
It is worth noting how little these supposed revelations have to do with the case that plaintiffs have been claiming to bring for the last several years.
While the public shorthand for this is the “O’Bannon case,” it now it appears that Mr. O'Bannon's lawyers are largely abandoning him, as well as Bill Russell and Oscar Robertson, and looking for other plaintiffs, hoping they may succeed with new claims.
The NCAA remains confident it will prevail when this case is appropriately tried: in court, with all the evidence.