The O’Bannon v. NCAA Ruling—What Will It Mean?

The August 8, 2014 ruling in O’Bannon v. NCAA, 99 pages long, is still new enough that it is too soon to know how the decision will shape the future of college sports. However, a few conclusions may be drawn. The decision is analyzed for LBN by attorney Neville Johnson.

Neville Johnson

Neville Johnson

“It’s probably the most important decision in the history of college sports,” Johnson suggests. For the first time, athletes will be able to be compensated. The NCAA has announced that they will ask the court for clarification, and they will likely appeal to the 9th Circuit. However, Johnson says, the judge wrote a very detailed opinion and ruled against every defense that was raised.

The court’s opinion offers several possibilities for compensation. One would be to raise the grant-in-aid limits to allow stipends derived from licensing revenues to match up what it would cost to attend the school.

Another suggestion was that a share of licensing revenues could be put into a trust for student athletes to be paid to them after they leave the school. Schools may offer at least $5,000 per athlete. However, it appears that the NCAA will be trying to diminish the use of the likenesses of student athletes, so as to shrink that source of funding.

Another twist to the licensing of likenesses issue is that Electronic Arts will no longer be offering its video games featuring the likenesses of student athletes as a result of the settlement it reached in the case of Keller v. Electronic Arts, reported on by LBN. The NCAA is no longer licensing the games.

When an athlete graduates, if he still has some marketability, he may be able to be compensated. In discussing all the possibilities and unknowns, Johnson suggests that perhaps the NCAA will be able to come to accept the situation and work out the best way to deal with the compensation issue, including how much the compensation should be. Johnson points out that colleges receive great amounts of money from sports, so it would not be unreasonable to share it with the athletes.

Johnson’s opinion of the ruling is that it will not permit athletes to sell endorsements during their college careers. In the end, much is still to be decided.

Neville L. Johnson is a founding partner of Johnson & Johnson, LLP. He specializes in media, entertainment, class action, privacy, and complex business litigation matters. Mr. Johnson is a graduate of the University of California, Berkeley, where he was Phi Beta Kappa. He received his law degree from Southwestern University School of Law, graduating at the top of his class. The Legal Broadcast Network is a featured network of the Sequence Media Group.

Summary Judgments in Employment Cases—Too Often?

Employment lawyer Paul Mollica discusses an employment discrimination case involving a summary judgment. The case, Malin v. Hospira, Inc., is the subject of a recent post in the Employment Law Blog.

Paul Mollica

Paul Mollica

The facts of the case are rather complex and worth a read. But the plaintiff’s case presented a Title VII claim and a Family and Medical Leave Act claim. Hospira’s lawyers filed for summary judgment, a common practice in employment discrimination cases. In these situations, the trial judge is presented with hundreds, perhaps thousands, of pages of material plus the briefs of counsel for the parties. In this case, the trial judge sustained the motion, and the plaintiff appealed. The 7th Circuit reversed.

On the Title VII claim, Mollica explains, the trial court applied a “commonly-cited principle” that a long gap between the protected action and the adverse action negates any inference that the actions are connected. The appellate court cautioned that this guideline should not be mechanically applied. The court noted that “the record contains ample evidence to support the inference that Hospira retaliated against Malin for her 2003 sexual harassment complaint when it carried out the 2006 reorganization.”

As to the FMLA claim, the appellate court decided that the trial court had erred in its analysis of the timeline. Again, the appellate court concluded that there was a question for a jury to decide.

The court made a point of telling counsel that misuse of summary judgment practice was a mistake. "We caution Hospira and other parties tempted to adopt this approach to summary judgment practice that it quickly destroys their credibility with the court."

Paul W. Mollica joined Outten & Golden LLP as Of Counsel in 2010. He is a frequent author and lecturer (for lawyers and courts) in the area of employment discrimination. He is a two-term past president of the Chicago Council of Lawyers, a public-interest bar association. He has been selected as a Super Lawyer© in Illinois and has the highest, AV© rating from Martindale-Hubbell. He is licensed to practice in Illinois and New York. The Legal Broadcast Network is a featured network of the Sequence Media Group.

Keller v. Electronic Arts—Another Setback for the NCAA

On August 8, 2014, a federal judge ruled in O’Bannon v. NCAA that that college athletes could profit off their name, image and likeness. [The O’Bannon case was the subject of this LBN report.] A related case has just been settled. Keller v. Electronic Arts dealt with the use of a player’s likeness in a video game sold for profit. The settlement came after Electronic Arts lost an appeal in the Ninth Circuit Court of Appeals. Leonard Aragon, who represents Keller, comments on the case and its effect on the continuing litigation involving the NCAA.

Leonard Aragon

Leonard Aragon

Aragon notes that the $60 million settlement in the Keller case came long before the case went to trial. The class of student athletes who could be eligible for compensation from the proceeds includes those who played from about 2003 to the present. Aragon explains that the judge’s order approving the settlement should be filed this week. At that point, the notice campaign will begin to let student athletes know that they must make a claim in order to get compensated.

In terms of changing the relationship between student athletes and the NCAA, Aragon feels that the cases to date are a great start. “The next step is to see how this ruling plays out in real life.” The issues include what caps will be set, how will student athletes get paid, and how will schools receive the revenue and distribute it.

The NCAA will definitely appeal the portion of the ruling that relates to antitrust law. Aragon feels that the judge wrote a very good opinion and that the NCAA “will have an uphill battle” in getting that ruling overturned on appeal. Another antitrust lawsuit against the NCAA is being brought by Jeffrey Kessler, covered in this LBN report.

Aragon thinks that the O’Bannon case will have a big impact on the case being brought by Jeffrey Kessler. That case could lead to the award of damages to student athletes.

Leonard W. Aragon is a partner at the Phoenix office of Hagens Berman Sobol Shapiro LLP, where he focuses on nationwide class actions and other complex litigation. Mr. Aragon is currently counsel for plaintiffs in the highly publicized cases Keller v. Electronic Arts and In Re: NCAA Student-Athlete Name and Likeness Licensing Litigation. The cases allege that video game manufacturer Electronic Arts, the National Collegiate Athletic Association, and the Collegiate Licensing Company used the names, images and likenesses of student athletes in violation of state right of publicity laws and the NCAA’s contractual agreements with the student athletes. The Legal Broadcast Network is a featured network of the Sequence Media Group.