Lawsuit against EA/NCAA over player likeness

[cdj]

Here is the podcast from the 9th Circuit hearing. Pretty interesting.

http://www.ca9.uscourts.gov/media/vi..._id=0000007013

Awesome. Nice find & thanks for sharing!

[cdj]

Cdj, I don't care if a report comes out and says only 14 schools made money last year with their athletic department. If that's true then why does every BCS school pay their head coach close to $1 million with the average SEC school paying about $2.5 million? If schools aren't making enough money then it's time to cut the salaries of these overpaid coaches rather than say we can't give any more to the athletes or cut other programs. It's an extremely hypocritical stance, especially when football is making so much money and everyone else from coaches to ADs have seen their share go up at an incredible rate, more than the student's scholarship value.

I agree 100% with you on that. The college athletics arms race is driving more schools into the red and putting more space between the have and have-nots. Though, I do think it's al least worth nothing that despite the huge money involved all around (TV deals, BCS, etc.), many schools aren't making money. Though, again you are right that poor financial management has a lot to do with that.

[steelerfan]

Paying top dollar for a coach is an investment. It's easy for me to see that these schools are looking around at the financial climate and noting that many schools are losing money. We can invest in a coach who gives us a chance to be in the black, or we can accept being in the red.

I would liken it to the money EA invests in licensing. It's a big investment that you hope pays for itself and makes you money on top of it.

[gschwendt]

Court Dismisses Complaint Against EA Sports In Ed O'Bannon Licensing Case

A U.S. District Court in California earlier this week dismissed a complaint against EA Sports in the Ed O'Bannon licensing case. The former UCLA star sued EA Sports, the NCAA and the Collegiate Licensing Company in '09 on the grounds they were using his image and likeness without his consent, and the suit later grew into a class action involving Basketball HOFer Oscar Robertson among several others. Judge Claudia Wilken for the U.S. District Court for the Northern District of California dismissed the complaint against EA Sports, ruling, "This purported conspiracy involves Defendants' concerted action to require all current student-athletes to sign forms each year that purport to require each of them to relinquish all rights in perpetuity for use of their images, likenesses and/or names and to deny compensation 'through restrictions in the NCAA Bylaws.' The Consolidated Amended Complaint, however, does not contain any allegations to suggest that EA agreed to participate in this conspiracy." Wilken denied separate motions from the NCAA and CLC to dismiss claims against them, and those will continue to proceed.

[oweb26]

So this means.......????? Besides no one really won

[CLW]

So this means.......????? Besides no one really won

Trying to find the opinion/order b/c that small blurb really doesn't make any sense.

[gschwendt]

As an uneducated person, to me it sounds like that particular judge found that EA SPORTS is not at fault for using player likeness and therefore no harm will come to them in that lawsuit. However, since the NCAA & CLC are the ones that handle the actual licensing terms, then they would be the ones that would be at fault if the judge decides there is fault to be had.

Obviously there is still the Keller lawsuit and even the O'Bannon lawsuit may result in the NCAA no longer being able to handle player names/images/likenesses the way they currently do which would obviously in-turn effect EA.

[JBHuskers]

To me, all this was just failed athletes trying to get an easy cash grab.

[CLW]

Still looking for the full opinion/order. However, this appears to be key:

The Consolidated Amended Complaint, however, does not contain any allegations to suggest that EA agreed to participate in this conspiracy

Basically this doesn't mean/resolve anything. In a Motion to Dismiss under Rule 12 of the Federal Rules of Civil Procedure, a Court simply looks at the Plaintiffs' Complaint and assumes EVERYTHING in that Complaint is true and then looks to the law to see if a valid claim under the law has been made.

Here, O'Bannon's lawyers for whatever reason (possibly mal practice - perhaps I should hit up O'Bannon so he can sue his sleezy lawyers) did not include an allegation that EA agreed to participate in the conspiracy. Therefore, O'Bannon's lawsuit against EA cannot proceed because he has failed to even allege a valid claim under the law.

If anyone find's a link to the Opinion/Order I would be more than happy to read it and try to analyze it and break it down for everyone.

EDIT: As best I can currently tell the O'Bannon lawsuit is ENTIRELY different (legal theory wise) from the Keller lawsuit. They have been consolidated by the Court (most likely for discovery reasons only). However, unless I am missing something this Opinion will have ZERO affect on the Keller "likeness" lawsuit.

[JBHuskers]

I think CLW should have his own avatar. "Resident Lawyer" under his regular avatar

[gschwendt]

CLW, not sure if this will help or not but here's another link
http://www.law360.com/topnews/articles/242837

At the bottom it says you can "view more details and drill down deeper, take a free trial now."

[steelerfan]

I think CLW should have his own avatar. "Resident Lawyer" under his regular avatar

I'm just glad he is moving to Houston. I could use an attorney in this town who is on my side.

[CLW]

I'm tempted to use my Federal Bar License ID to log in and get the opinion. The problem is it bills my current firm for access to the documents.

So far all I can gather is:

#1- EA's motion to dismiss was granted on O'Bannon's antitrust claim. This would NOT stop O'Bannon (or someone else) from filing the same lawsuit against EA again and actually allege EA agreed to participate in the alleged conspiracy.

#2 - The Keller "likeness" issue against EA is still very much in play.

[steelerfan]

At the bottom it says you can "view more details and drill down deeper, take a free trial now."

All the sites I visit that say stuff like that are NSFW.

[oweb26]

I also vote for clw resident lawyer tag.
I am glad to know I wasn't the only one where it didn't really make sense

Sent from my PC36100 using Tapatalk

[CLW]

CLW, not sure if this will help or not but here's another link
http://www.law360.com/topnews/articles/242837

At the bottom it says you can "view more details and drill down deeper, take a free trial now."

I'm heistant to sign up for any free trials b/c it would require me to remember to unsubscribe shortly.

This (if true) is interesting:

However, the judge granted the players two weeks to amend their antitrust allegations...

In English, yes EA won the motion to dismiss on a "technicallity" (basically O'Bannons lawyers are idiots and committed mal practice). However, rather than hurt those poor lawyers we give the lawyers another chance not to F it up. I would anticipate O'Bannon filing another Amended Complaint which contains an allegation that EA was complicit in this "conspiracy" which will solve the problem (at least temporarily).

[CLW]

I was able to find an older Order by the Court in the O'Bannon case. This may help explain a few things. I assume that not much about O'Bannon's claim have changed since the previous Order.

O'Bannon's lawsuit alleges violations of the Sherman Act (Federal antitrust). (He also has/had an "unjust enrichment" state law claim which I'll ignore here as I don't think it was subject to today's ruling)

In order to make a valid claim/win under the Sherman Act O'Bannon has to allege (and eventually prove):

#1 - A Contract OR Conspiracy;

#2 - That unreasonably restrained trade (think commerce i.e. buying stuff);

AND

#3 - In Interstate Commerce (Congress/Federal Government can ONLY regulate "interstate commerce" under the Constitution - this is known as the "Federal Jurisdictional Hook" this is at the heart of "Obamacare" litigation) (in this case basically it means that the contract/conpiracy must restrain trade between people/companies in different states)


I am guessing at some point EA was amended into the O'Bannon action b/c the order I am reading does not mention (or list) EA as being in the O'Bannon case but does mention the Keller lawsuit being consolidated with it.

The apparent problem for O'Bannon today was that his lawyers failed to allege #1 (above) against EA. His lawyers did allege #1 against the NCAA and CLC so those claims move forward.

Interestingly (to me anyways and as an aside), you will recall me saying O'Bannons lawyers committed malpractice b/c they failed to allege #1 against EA. Well they also somewhat irked the judge in the past by FALSEY quoting "law" in support of their argument.

A foot note in the opinion I read states:

The Court notes that O'Bannon purportedly quotes language from [case] however, the quoted language does not appear in that case. O'Bannon [lawyers] must ensure that he [they] accurately represents case law.

So... in sum O'Bannon (at least) is represented by lawyers who cannot even ensure they allege a proper case against EA and they have attempted to mislead OR do not bother to ensure they accurately quote the law.

Yet these bums have a J.D.


In any event, today's ruling is a SMALL victory for EA. IF the Court granted O'Bannon the ability to amend his Complaint (as reported above) O'Bannon needs to only allege #1 (above) as to EA to bring EA back into his case for Sherman Act violations. Moreover (and perhaps more importantly) I do NOT see this ruling having ANY ramification on the Keller "likeness" issue. The Keller "likeness" case is ongoing and up on appeal (the last time I heard checked).

Basically, I would hope O'Bannon's lawyers could get it right this time allege a valid claim under the law and EA will be back into the case in short order. Whether O'Bannon will win in the end is another matter to be determined later. NOTHING, about today's ruling really gives any incite as to the Judge's thought process on that. Perhaps, if I saw the oral argument you could tell what the Judge thought of the case as a whole. However, the only issue today was simply did O'Bannon allege a valid claim under the law against EA. He clearly did not and the Court has apparently given him another chance to do so.

[Capt Orygun]

I really see an easy workaround for this. Pay the coaches for their likenesses and model the teams after their style for the upcoming year.

You could build a roster with the exact same ratings we have now, then just randomize year, ethnicity, number and name.

Oregon doesn't have a fast HB because its lamichael james, they have a fast HB because that's what Chip Kelly is planning for in the fall. If he's white, a freshmsn, and #26 how can you ever say it's supposed to be him?

It will allow online play to continue unscathed, offline who cares, we all use custom rosters anyways...

[souljahbill]

I think CLW should have his own avatar. "Resident Lawyer" under his regular avatar

Is there a resident athletic trainer designation? I can talk about concussions and injury issues and whatnot.

[psusnoop]

Thanks CLW for breaking things down for us. Really appreciate your input and help in trying to understand everything.