By Peter H. Hamner, Esq., Senior Legal Correspondent
Former college athletes have settled their lawsuit alleging antitrust and right-of-publicity claims with video game developer Electronic Arts and the Collegiate Licensing Co. for $40 million.
The plaintiffs announced the settlement in a Sept. 26 filing in the U.S. District Court for the Northern District of California.? Terms of the settlement were not disclosed in the filing, and claims are still pending against the National Collegiate Athletic Association.
(Westlaw users: Click here for more stories from Westlaw Journal Antitrust.)
?NCAA Football 14? will be the final version produced in the video game series.
The plaintiffs? attorney Michael D. Hausfeld of Hausfeld LLP said in a telephone interview that the settlement is a ?great continuing step in reaching a litigated resolution.?
?The settlement focuses all accountability on the NCAA restraints, which are now fully acknowledged? by EA who ?was only following NCAA orders,? he added.
Electronic Arts declined to comment on the settlement, directing Westlaw Journal to a statement on its website.
According to the statement, EA will end its popular NCAA College Football video game series with ?NCAA Football 14,? which was released in July.
?The ongoing legal issues combined with increased questions surrounding schools and conferences have left us in a difficult position: one that challenges our ability to deliver an authentic sports experience, which is the very foundation of EA SPORTS games,? the statement said.
The video game was the highest selling game in July.
The Collegiate Licensing Co. also declined to comment on the settlement.
The plaintiffs are former college students who played basketball and football at NCAA member schools.? They allege the NCAA and others conspired to fix the amount of compensation that students can receive for the use of their names and images for video games, apparel and other merchandise.
In their third amended consolidated complaint, the plaintiffs allege the NCAA engaged in an antitrust conspiracy by requiring student-athletes to sign forms forever relinquishing all rights pertaining to the use of their images, likenesses or names.
(Click here for the third amended consolidated complaint on Westlaw.)
The students also allegedly lost the right to any revenues derived from the use of their images and likenesses in television contracts, rebroadcasts of games, DVD game and highlight film sales, and the sale of video games and apparel.
EA and Collegiate Licensing filed motions to dismiss the plaintiffs? third amended complaint, arguing that the allegations did not sufficiently plead a conspiracy because there was no ?participation? in a conspiracy.? EA and CLC claimed they were following rules adopted by the NCAA.
(Click here for EA?s motion to dismiss on Westlaw.)
The NCAA also filed a motion to dismiss, saying the plaintiffs? allegations fail because they do not have rights to their images, likeness or names in live broadcasts.
NCAA chief legal officer Donald Remy said in a statement that the organization is ?confident that the NCAA is correct on the facts and on the law,? which ?does not recognize publicity rights for individuals appearing in sports broadcasts ? whether players, coaches, referees, cheerleaders or spectators.?
The former college athletes responded to the defendants? arguments in a court filing Sept. 24.
(Click here for the athletes? response on Westlaw.)
The plaintiffs said EA and CLC ?affirmatively participated? in the NCAA?s conspiracy to use the athletes? name, image and likeness by lobbying on behalf of the NCAA, obtaining administrative interpretations of the NCAA?s rules and entering into agreements used by the NCAA to exploit the athletes? rights.
The evidence shows the defendants? actions diminished competition for athletes? names, images and likenesses, the plaintiffs said.
Regarding the NCAA?s motion, the athletes argue that the organization cannot claim the athletes do not have rights in live broadcasts because ?student-athletes have name, image and likeness rights with economic value.?
The NCAA declined to comment on the settlement.
In re NCAA Student-Athlete Name & Likeness Licensing Litigation, No. 09-cv-1967, proposed settlement announced (N.D. Cal. Sept. 26, 2013).
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