In the June 2009 edition of “Three Point Shot” (See “Pay Me if You Want To Play Me: Former Cornhusker Quarterback Seeks Payday for Virtual College Athletes”), we reported on the lawsuit brought by former Arizona State quarterback Sam Keller against videogame maker Electronic Arts (“EA”), the NCAA, and the NCAA’s licensing arm, Collegiate Licensing Company (“CLC”) (a subdivision of IMG). Keller’s class action lawsuit, Keller v. Electronic Arts, filed in the federal District Court for the Northern District of California in May 2009, sought relief on behalf of certain NCAA football and basketball players whose teams were included in video games produced by Electronic Arts, and whose assigned jersey numbers appeared on virtual players in those games. The Keller case was filed on the heels of a successful lawsuit brought by another class of retired athletes – former NFL players – who won a$28 million jury verdict against the NFL Players Association relating to the inclusion of the former players’ images in EA’s “Madden NFL” game. See Parrish, et al. v. National Football League Players, Inc., 2009 U.S. Dist. LEXIS 4289 (N.D. Cal. Jan. 13, 2009) (upholding the jury verdict).

Now, former UCLA power forward Ed O’Bannon is adding a new play to the book, which may make it possible for former college athletes to get a slice of the licensing pie. After seeing a friend’s child playing a video game featuring classic teams, including the 1995 Bruins, and with encouragement from Sonny Vaccaro, O’Bannon found himself wondering why he was not entitled to a share of the related revenues for the use of his likeness. In July 2009, the erstwhile first-round NBA draft pick filed his own class action lawsuit – O’Bannon v. National Collegiate Athletic Association and Collegiate Licensing Company – in the same court as Keller on behalf of a narrower class than the one named in the Keller action. In O’Bannon, the alleged class is limited to former student athletes who competed on Division I men’s basketball teams and Football Bowl Subdivision (formerly known as Division I-A) men’s football teams. O’Bannon charges the NCAA and CLC with a broad slew of misuses of former players’ indicia of identity beyond the gaming world, into “television contracts, rebroadcasts of ‘classic’ games, DVD game and highlight film sales and rentals, ‘stock footage’ sales to corporate advertisers and others, photograph sales . . . and jersey and other apparel sales . . . .”

Importantly, rather than bring suit claiming violation of the right of publicity, O’Bannon alleges violations of antitrust law. According to O’Bannon, the NCAA and CLC are unreasonably restraining trade within the $4 billion annual market for collegiate licensed merchandise. O’Bannon seeks an accounting of the defendants’ finances and to establish a constructive trust that would hold the licensing revenues, which current college athletes – who are not permitted to be paid for their play to preserve amateurism – could access upon leaving college. The crux of O’Bannon’s complaint rests on Form 08-3a, a document that the NCAA requires prospective student athletes to sign in order to be eligible to play. According to O’Bannon, Form 08-3a is a “contract of adhesion” that requires young athletes to release in perpetuity their right to economically exploit their persona in connection with their collegiate athletic career and transfers this right to the NCAA’s or its third-party designees, who can use the student athlete’s name or picture to promote NCAA events, activities or programs.

The complaint goes on to allege that Form 08-3a, read together with NCAA Bylaw, allows the NCAA and third parties to license student athletes’ indicia of identity and effectively blocks student athletes from participating at all in the collegiate licensing marketplace. According to O’Bannon, there are less restrictive means than the NCAA’s current policy, including as an example the group licensing programs established in professional sports leagues that enable the sharing of monies between players and teams.

On January 2010, the District Court for the Northern District of California consolidated the Keller and O’Bannon cases and, in February, it denied part of the NCAA’s motion to dismiss O’Bannon’s case. The district court found that O’Bannon had pleaded enough facts to move forward on his antitrust theory. The court also found the licensing agreements at issue in the case to be vertical restraints (and not horizontal restraints between direct competitors) and therefore more appropriately analyzed under the “rule of reason” versus being “per se” illegal. The court also ruled that O’Bannon successfully identified a market – the collegiate licensing market – and pleaded sufficient facts to support a claim that the defendants’ actions result in a decrease in the number of competitors in that market. In the same order, the court dismissed a related case brought by Craig Newsome for failure to plead a relevant market. On March 10, O’Bannon and Keller filed an amended complaint that added 11 additional plaintiffs, including Harry Flournoy, who was captain of the 1966 Texas Western team that defeated the University of Kentucky and was immortalized in the film Glory Road, and Eric Riley, who played at the University of Michigan with Chris Weber and the Fab 5.

In a separate ruling, the district court also ruled that the First Amendment did not protect EA’s use of players’ identities in video games, finding that such use is not sufficiently transformative nor a matter of public interest. Though EA purposefully leaves player names off jerseys in its games depicting collegiate athletes, gamers are able to download team rosters that impose player names on the jerseys.

The O’Bannon case will be closely watched in the months to come so stay tuned for future updates.