Lawsuit against EA/NCAA over player likeness

[CLW]

I think the series has to survive just to pay off the damages

Nope b/c each edition adds hundreds of new Plaintiffs.

could bringing up the fact that he waited until now to bring this lawsuit against EA instead of when he first noticed his likeness being used in the game, be something that helps EA?

I mean, we all know that if Keller had the talent to make it in the NFL that he would've never brought this suit, but since he's a no talent never was, he is seeking his NFL payday thru the pockets of EA.

What you are talking about is called a Statute of Limitations. That is the time period that a person must file their lawsuit by or forever lose their right to make a claim. It varies from state to state but I assume that Keller must not be violating the SOL b/c EA's lawyers surely would have checked that and filed a motion to dismiss on that basis and even a VERY liberal judge would have a hard time not granting a motion to dismiss when the time to file the lawsuit has passed.

[jello1717]

I mean, we all know that if Keller had the talent to make it in the NFL that he would've never brought this suit, but since he's a no talent never was, he is seeking his NFL payday thru the pockets of EA.

The haters always seem to focus on Keller and O'Bannon and say this is only because they weren't successful pros. They also seem to always ignore the fact that this suit also includes Jim Brown and Oscar Robertson who are as far from "no talent never was" guys as you can get.

[countryboy]

The haters always seem to focus on Keller and O'Bannon and say this is only because they weren't successful pros. They also seem to always ignore the fact that this suit also includes Jim Brown and Oscar Robertson who are as far from "no talent never was" guys as you can get.

A hater? Ok...I was just bringing up a point as to why Keller and the rest decided until now to bring up the suit, when this has been going on for quite a while. And I understand that Brown, O'Bannon, and Robertson are included in the suit and no where did I mention that they were "no talent never was" guys, only Keller which is why I only used his name.

[countryboy]

What you are talking about is called a Statute of Limitations. That is the time period that a person must file their lawsuit by or forever lose their right to make a claim. It varies from state to state but I assume that Keller must not be violating the SOL b/c EA's lawyers surely would have checked that and filed a motion to dismiss on that basis and even a VERY liberal judge would have a hard time not granting a motion to dismiss when the time to file the lawsuit has passed.

Oh ok. Thanks!

[ram29jackson]

the trial now is slated to begin june 2014. Appeals following a decision could extend the fight through 2020.

too early to bother worrying about anything for a consumer

[CLW]

too early to bother worrying about anything for a consumer

Yeah if EA just wants to drag it out it certainly can. However, the legal bills have no doubt been HUGE and will continue to be HUGE all the way up through final disposition.

However, if O'Bannon/Keller are really hell bent on just breaking the NCAA EA/NCAA really don't have much of an option other than try to appeal all the way up to the SCOTUS.

[SmoothPancakes]

Well, at least we know we're 100% safe for a NCAA '15 release, and maybe even NCAA '16 if either side appeals.

[CLW]

Hearing today on motion to certify as class action. Despite the Supreme Court yet again today slapping down the class action device, I'd bet the farm that the judge certifies the case as a class.

http://espn.go.com/college-sports/st...awsuit-vs-ncaa

[CLW]

Ed O'Bannon's fame not carrying over with Oakland federal court house employees. They keep referring to the case as O'Banyon.

— Steve Berkowitz (@ByBerkowitz) June 20, 2013

[SmoothPancakes]

Hearing today on motion to certify as class action. Despite the Supreme Court yet again today slapping down the class action device, I'd bet the farm that the judge certifies the case as a class.

http://espn.go.com/college-sports/st...awsuit-vs-ncaa

So would the NCAA be able to appeal a class action certification to the Supreme Court?

[CLW]

So would the NCAA be able to appeal a class action certification to the Supreme Court?

Eventually yes they could - often you can do it as soon as the action is certified (Interlocutory Appeal). It would have to go to the 9th Circuit first though for a ruling. Federal Rules of Civil Procedure provide:

A court of appeals may in its discretion permit an appeal from an order of a district court granting or denying class action certification under this rule if application is made to it within ten days after entry of the order. An appeal does not stay proceedings in the district court unless the district judge or the court of appeals so orders.

The 9th Circuit (Appellate Court for CA) wouldn't likely grant it immediately b/c they are all liberals knowing that if they affirm a class certification it's that much closer to a potential Supreme Court review.

Of course the Supreme Court doesn't have to rule on the case as they have complete discretion (just about) on what cases they hear.

Most likely NCAA/EA would have to go to trial then appeal the Class Certification (and any other rulings) in one swoop.

[CLW]

According to ESPN. The Judge ordered the Plaintiffs to amend their complaint to add current student-athletes and "suggested" mediation.

http://espn.go.com/college-sports/st...face-challenge


Reading tea leaves that's probably not good for the NCAA/EA as this lawsuit just got even bigger. I suppose the judge could (in theory) want to deny this type of lawsuit for everyone possible but that just seems highly unlikely.

Most likely result this case gets certified as all current and former NCAA athletes are plaintiffs against EA/NCAA. EA/NCAA will undoubtedly try to appeal the certification ruling to the 9th Cir. / Supreme Court but it will be an uphill battle to get the 9th to agree to hear the case.

[ram29jackson]

the longer this goes on..I doubt they rule in favor of the jocks. its consumers that give the players names and not the company perse. And I could care less if I had to generate fictional names from any point onward.

This actually needs to be a side note to the NCAA being told to lighten up on restrictions to student athletes being allowed to make their own money any way they choose while being on full scholarship.

Just like the anti- indian team names crusaders. Its a few whiners trying to create a problem when most jocks live their lives and play their games both on field and on console LOL and don't care. Just more wasted taxpayer money on a long winded dumb legal battle

[CLW]

the longer this goes on..I doubt they rule in favor of the jocks

Actually, the longer a lawsuit goes on the more likely it is to settle out of court. The Judge/9th Circuit knows that. PARTICULARLY in class actions once the case is certified unless you are Wal-Mart (or some other huge Corp with DEEP POCKETS AND A DEEP BELIEF YOU ARE RIGHT) almost all Defendants settle as soon as the class is certified.

Why? Simple the threat of a multi-million (or in this case multi-billion) dollar verdict and the cost of defending against 1000s of Plaintiffs simply just becomes too costly. Better to cut your losses now and move on.

Does EA/NCAA constitute Deep pockets - yeah they definitely have the funds necessary to fight it all the way up

However, do they believe deep in their hearts they are right and thus are willing to spend a fortune to attorneys to finally prevail at the Supreme Court after a decade plus of litigation? - I don't know

To me EA would probably be happy to pay $X per year to use actual player names so they don't really have a "deep"stake in this fight. It will likely be whether the NCAA wants to continue its current Amateurism stance (rightly or wrongly - IMHO rightly). Is it worth it to the NCAA? Time will tell.

[CLW]

EA files Motion to Dismiss:

http://www.polygon.com/2013/7/30/4571472/ea-ncaa-football-obannon-keller-lawsuit-motion-to-dismiss

Odd "strategy" if in fact the Judge told EA to not file a Motion to Dismiss. However, most likely EA is hoping the judge denies it w/o considering it giving them an additional ground for appeal.

[CLW]

Liberal 9th Circuit slaps down EA on 1st Amendment Argument.

http://www.pastapadre.com/2013/07/31...-appeals-court

EA will likely appeal this but SCOTUS doesn't have to take it as their review is ENTIRELY discretionary (except a few cases outlined in the Constitution).

The 1st Amendment is EA's best legal argument and the best potential win for fans of the series as a SCOTUS decision could protect the series from future lawsuits.

[SmoothPancakes]

Well, if the Supreme Court takes it up, EA does have something in their favor.

It’s worth noting The 9th is one of the most reversed courts in the nation. Since 2005 78% of their cases that have reached the Supreme Court have been reversed.

[ram29jackson]

Jim Brown

In a separate decision also written by Bybee, the same 9th Circuit panel by a 3-0 vote on Wednesday upheld the dismissal of Hall of Fame running back Jim Brown's lawsuit against EA over the use of his likeness in its Madden NFL video game.




It said Brown's likeness was "artistically relevant" to that game, and that there was no showing that EA explicitly misled consumers about his involvement with the game.

EA spokesman John Reseburg said in a statement: "We're pleased with the outcome regarding Jim Brown's likeness, but equally disappointed with the ruling against First Amendment protection in the Keller case. We believe the reasoning in Judge Thomas' dissent in that decision will ultimately prevail as we seek further court review."

[CLW]

Well, if the Supreme Court takes it up, EA does have something in their favor.

Yep the 9th gets reversed a TON its a running joke that when/if SCOTUS takes a 9th Circuit case its to reverse them. There are even instances where Supreme Court takes up Case A from the 9th reverses. Then a few years later case B on the SAME ISSUE comes up and the 9th ignores SCOTUS. SCOTUS takes case and again reverses.

Of course that 78% # is only on cases that are actually heard by SCOTUS. TONS of bad 9th Circuit law is still out there but SCOTUS could/would fill its entire docket with bad law from the 9th if it wanted but it has to take cases from other areas too.

Its got a decent shot of being heard but I'd probably put it at slightly less than 50/50. Now the SCOTUS seems REALLY interested in class actions right now so that decision has a really good shot at going all the way up at some point.

[CLW]

Apparently OS doesn't have a "resident lawyer" b/c they are mis-reporting what happened today in the Keller lawsuit. No worries I attempted to correct it for the masses but ALWAYS be weary of reading an article about law/lawsuit by someone who doesn't know jack squat about law. Just sayin'