This has been an eventful few weeks for the O’Bannon v. Electronic Arts, Inc., et al., No. 4:09-cv-01967 (N.D. Cal.) case in the Northern District of California; an over four-year-old showdown between the NCAA and current and former college athletes. The players are asserting their legal right to enter into group licensing deals, while the NCAA remains adamant that its rules prohibiting such deals do not violate antitrust and intellectual property laws. Essentially, the NCAA seeks to prevent amateur players from seeking compensation for the use of their likenesses for commercial purposes. Judge Wilken’s latest order allows the lawsuit to proceed as a class action, though the class will exclude claims by former student athletes—a substantial, though incomplete, victory for the NCAA.    

On October 25, 2013, Judge Claudia Wilken denied the NCAA’s motion to dismiss the players’ claims and on November 8, 2013, issued an order partially certifying the class of players. The court found the current and future college athletes’ claims to be sufficiently similar to constitute a class, while the claims of former players differed too substantially in terms of the actual amount of harm suffered by different members of the potential class. The court also suggested that if included in the class, former players would affect the standing of current and future players: had there been the financial incentive of licensing income for former players, these players may have remained in college, thereby decreasing the number of available sports for current athletes.

This limited class certification keeps alive the possibility that in the future players will be able to enter licensing agreements and be compensated for the use of their likenesses while engaging in amateur college competition. A decision in favor of the players would cut income from media broadcast deals currently enjoyed by the NCAA.  On the other hand, the class certification order substantially decreases the NCAA’s potential financial liability by eliminating former players from the class. Former players can still bring individual claims against the NCAA, but at the conclusion of this action it will not face an astronomical payout to all former players.