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Judge will allow current player to join O'Bannon suit
 
Lawyers representing the plaintiffs in an antitrust suit concerning college athletes' names, images and likenesses will be allowed to amend their complaint against the NCAA and two co-defendants and to add a new named plaintiff who is a current college athlete, U.S. District Judge Claudia Wilken ruled Friday.
Wilken discussed granting permission for these moves during a hearing June 20 on whether to certify the suit as a class action.
Today's order officially gives the plaintiffs' lawyers two weeks to make the adjustments to their documents and their lineup of plaintiffs.
Following the hearing, the lead attorney for the plaintiffs, Michael Hausfeld said: "We've been anticipating this for quite some time and there are a number of current athletes who have expressed a desire and an interest in joining the case."
On Friday, Hausfeld reiterated that, as well as his worry that a current college athlete might have to deal with retribution for joining the case.
"We expressed concern during the hearing that a current student-athlete might face retaliation, intimidation, coercion," he said. "We want to eliminate that."
Said NCAA spokeswoman Stacey Osburn via text message Friday: "We don't have a comment at this time beyond our previous statements." NCAA executive vice president oakley sunglasses and general counsel Donald Remy has said the defendants believe they are right on the facts, right on the law and ultimately will prevail in the case.
Wilken's decision to allow the plaintiffs to make these modifications could be viewed as indication she is leaning toward certifying the case as a class action in some form.
"I wouldn't say for sure this means it will be certified, but the odds are better now than they were before," said Steve Williams, an attorney who handles anti-trust and complex civil litigation for the Bay Area-based firm Cotchett, Pitre and McCarthy and has appeared before Wilken but is not involved in this case. "She could have said it's too late to fix the complaint or the set of named plaintiffs."
Her order expressly lets lawyers for the plaintiffs address some of the arguments made by lawyers for the NCAA and video game manufacturer Electronic Arts and the nation's leading collegiate trademark licensing and marketing firm, Collegiate Licensing Co. The order also somewhat limited what the defendants' lawyers will be able to say immediately in response to the plaintiffs' change.
In addition, it also likely will result in the plaintiffs' formally clarifying a point that Hausfeld made during and after the hearing: that the plaintiffs aren't concerning themselves with the use of athletes' names, images and likenesses in regard to jersey and other apparel sales. That puts the case on the areas of: TV broadcast and re-broadcast, video games and other digital and electronic media.
However, Hausfeld said his side will not dramatically alter its case. Wilken "was very clear that she wants the minimum of change in the complaint."
Lawyers for the defendants have contended that one of the reasons the case should not be certified as a class action is that the plaintiffs' lawyers had made improper and unfair changes in their legal strategy, trying change the case from being one exclusively about former athletes to one that includes current athletes.
Wilken indicated during the hearing June 20 that she was not very concerned about the case having become, as practical matter, one that includes current athletes. But she did ask about the absence of a current college athlete from the list of named plaintiffs.
The order gave a clear indication that the judge expects the defendants will seek to have the case dismissed through summary judgment – a request to have the case decided in their favor based on the filings to that point in the case,Ray ban sunglasses rather than through a trial.
"Defendants need not file new answers to the amended pleading unless they would like to respond to specific new allegations made by Antitrust Plaintiffs," Wilken wrote. "Defendants shall not file an additional motion to dismiss or for judgment on the pleadings and shall instead include any arguments they would have made therein in their future motions for summary judgment."
Currently the case involves former UCLA basketball star Ed O'Bannon and more than a dozen other former college football and men's basketball players taking on the NCAA and its co-defendants. The former athletes have alleged the defendants violated antitrust law by not giving them compensation for the use of their names, images and likenesses in products or media while they are in school and by requiring athletes to sign forms under which they forever relinquish all rights pertaining to the use of the names, images and likenesses.
However, if Wilken certifies the suit as a class action, it could allow thousands of former and current football and men's basketball players to join the case. That could create the possibility of a damages award in the billions of dollars. In addition, if the plaintiffs were to get everything they have said they are seeking, it would force the establishment of an entirely new compensation arrangement for current NCAA Bowl Subdivision football players and Division I men's basketball players – one under which "monies generated by the licensing and sale of class members' names, images and likenesses can be temporarily held in trust" until their end of their college playing careers.