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.