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Lawyers: NCAA has spent millions on ‘likeness’ case involving Bill Russell, Oscar Robertson

Lawyers defending the NCAA in an anti-trust lawsuit related to the use of college athletes’ names and likenesses say the case should not be certified as a class action, in part, because the plaintiffs changed their legal strategy in a way that is unfair and could mean the NCAA has wasted “significant time and money” responding to the suit.

The NCAA and other defendants have spent millions of dollars on the case, initially filed in May 2009, and the NCAA has had to engage in a review of more than 650,000 documents, the association’s lawyers wrote in documents filed Wednesday with a U.S. District Court in California.

The NCAA’s lawyers signaled their belief that the case, now set for trial in June 2014, would be further delayed if the class certification is granted because new plaintiffs would be added and more pre-trial motions would be required.

Lawyers for former and current football and men’s basketball players are seeking damages from the NCAA; video-game maker Electronic Arts; and Collegiate Licensing Co., the nation’s leading collegiate trademark licensing and marketing firm. The 16 named plaintiffs, including former basketball stars Ed O’Bannon, Oscar Robertson and Bill Russell, say their names, images and likenesses were used illegally by the NCAA.

The former players allege that the defendants violated anti-trust law by conspiring to fix at zero the amount of compensation athletes can receive for the use of their names, images and likenesses in products or media while they are in school. They also are challenging the NCAA’s practice of requiring athletes to sign forms under which they allegedly relinquish in perpetuity all rights pertaining to the use of their names, images and likenesses in ways including TV contracts, rebroadcasts of games, and video game, jersey and other apparel sales.

In Wednesday’s filings, the NCAA’s lawyers make a series of arguments, including a claim that the plaintiffs have recently adopted legal theories for their case that are fundamentally different from those cited in the plaintiffs’ underlying complaint. If the plaintiffs are allowed to pursue those “new” theories, the defendants would have to “litigate an entirely new case after three years of fact-finding and motion practice,” the NCAA’s lawyers wrote.

Lawyers for the plaintiffs dispute the characterization of their approach as “new,” and the matter is scheduled for a class-certification hearing in late November.

The NCAA’s lawyers say the defendants overall “have spent millions on discovery,” the pre-trial process under which each party in a lawsuit can obtain evidence from the opposing party, including significant money “on topics that plaintiffs no longer intend to pursue on behalf of the class.”

Specifically, NCAA attorney Robert J. Wierenga wrote, the NCAA identified 658,705 “potentially responsive documents” for the case, “then engaged in manual review of the 658,705 documents, reviewing for both responsiveness and privilege.” Wierenga added that the NCAA ultimately produced 91,852 documents totaling 600,299 pages.

“Now . . . much of this work may prove to be wasted,” he wrote.

When the plaintiffs’ lawyers filed their motion for class certification on Aug. 31, that filing indicated for the first time that they are seeking not only potentially billions of dollars in damages, but also a system under which money generated by the licensing and sale of current athletes’ names, images and likenesses would be held temporarily held in trust until the end of their college playing careers.

Documents in support of the motion and the financial awards subsequently have become public, including parts of the NCAA’s multimedia and marketing rights contract for the Division I men’s basketball tournament that were placed in the court file earlier this week.

Certification of the suit as a class action would open the case to other qualifying litigants, but the NCAA lawyers warned that if what they term the plaintiffs’ “new theory” of the case goes forward, “the named plaintiffs will be prejudiced by additional discovery and motion practice, the costs associated with prolonged litigation, and by the additional time that it will take to have their claims adjudicated.”

If class certification is denied, the case still can proceed for the current plaintiffs. The NCAA lawyers wrote that the association “is not asking, at this time, that the named plaintiffs’ claims be limited or dismissed.”



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