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Update: O'Bannon vs NCAA Class Action Hearing

Posted by: Sean Cahill at 6/21/2013 10:04 AM
Yesterday, I talked about the start of arguably the most important hearing in the history of the NCAA in the form of O'Bannon v NCAA and what it meant to you, the gamer.  The hearing that took place in the main Federal Courtroom in Oakland, California, yesterday lasted about one hour and forty-five minutes.  Arguments were heard by both sides as ex-UCLA Basketball Star Ed O'Bannon and his legal team sought to prove that they could be certified for Class Action, while the NCAA and EA Sports (listed as co-defendants) attempted to make the case that there was no legal basis for such a response.  Some very important facts came out yesterday due to this hearing, but there were two major incidents in particular.


1)  The NCAA and EA Sports were tailoring likenesses in their video games

This is a huge development.  Documents were unsealed in the morning that showed EA Sports was making sure that the players in their NCAA Football franchise were to look as realistic as possible to the current player.  This was a huge blow yesterday to the NCAA and EA Sports, seeing as how there are specific rules and guidelines that the NCAA sets which must be followed against using likenesses.  This piece of information only helps the plaintiffs in this case.  For those who play the game and have been doing so for years, this is not really a surprise, but the documents show it was very deliberate.

2)  Claudia Wilken asked the obvious question.

That obvious question is this:  Why aren't there any current student-athletes involved in the plaintiff group?  To build upon this, the current plaintiff group is only about 15 strong, with Sam Keller being his fellow lead plaintiff since he initially had the case against EA Sports for likeness infringement back in the mid-2000s.  Judge Claudia Wilken controls the fate of both sides in this hearing, but she had to ask why there was no one currently enrolled in a university on the list of plaintiffs.  It's a very curious situation, given that the lawsuit was only recently amended (confirmed at the beginning of the hearing yesterday) to include all student-athletes, which does include those who are currently enrolled in any school under the NCAA umbrella, so to speak.  The plaintiffs said that they would include one if requested, which is exactly what Judge Wilken wants.  The speculation is that she wants to hear it from someone who is currently on scholarship what they feel of the situation.  Of course, the NCAA and EA Sports will more than likely counter against that, but it remains to be seen how.


After almost two hours of back and forth discussions and presentations, there has been no decision on whether this can be class-certified as of yet.  The scenario has changed a bit, given the amendment of the lawsuit, so let's update the three most possible scenarios given the new circumstances:


No Class Certification - NCAA and EA Sports technically win

I worded this differently before by stating that they could throw the case out altogether, and that is essentially what this ruling would be.  If Judge Wilken doesn't see the reason to do a class certification, then what it means is that every single individual athlete would have to bring their own case if they wanted to proceed with any kind of lawsuit.  This is the least likely outcome, but with the movement from yesterday regarding why current athletes were left off the plaintiff list, there is a glimmer of hope for the NCAA and EA Sports that this is still on the table.


Partial Certification - No one really "wins" or "loses"

This could mean several things, but the expected outcome of a partial certification would be that Judge Wilken sees some type of collusion by the NCAA and EA Sports (which is more than likely confirmed by now in Judge Wilken's mind) and decides to certify for past student-athletes but will not grant it for current ones.  If this happens, which I believe is even money with the third outcome when it comes to odds, then the NCAA and EA Sports will have dodged the bulk of the assault, but still be hit.  Settlements a plenty would happen, but the NCAA would survive in the long run.


Full Certification - Possible dismantling of the NCAA, O'Bannon and Keller claim victory

And here you thought Sam Keller couldn't win the big one, right?  All joking aside, if this happens, the ramifications would be immeasurable until the trial would occur.  Judge Wilken can certify that all student-athletes, past, present, and future, would be involved by this.  EA Sports would immediately be done with the NCAA Football franchise and would have to team up with the NCAA to pay out a colossal sum of money.  It's hard to say what the number would be, but I would expect to be at least a nine-figure sum when it is all said and done.  If full certification happens, the NCAA and EA Sports will try everything in their power to settle out of court, but at that point, it's like taking a BB gun into World War III.  The landscape of college sports, especially the lucrative worlds of college football and college basketball, would take on an entirely new environment.  It would still be a couple of years off with appeals, motions, and counter-motions, but don't hold your breath on this not happening:  This is a very realistic and likely scenario.  The question remains, though, if Judge Wilken is ready to set a precedent like that in amateur sports.

There is no timetable as to when to expect a ruling on this hearing for certification as of yet.  The sides have not reported whether or not the hearing will continue today and Judge Wilken's online schedule on the U.S District Court of Northern California website does not show any update.

The best thing we can do now is sit and wait.  When a decision is made, we will have reaction and analysis here on Gaming Nexus.