Keller v. Electronic Arts Inc. et al

Filing 893

ORDER by Judge Claudia Wilken GRANTING in part and DENYING in part #651 Motion to Certify Class; DENYING #881 Motion for Leave to File Supplemental Memorandum (cwlc3S, COURT STAFF) (Filed on 11/8/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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No. C 09-1967 CW

IN RE NCAA STUDENT-ATHLETE
NAME & LIKENESS LICENSING
LITIGATION

ORDER GRANTING IN
PART AND DENYING
IN PART MOTION FOR
CLASS
CERTIFICATION
(Docket No. 651)

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________________________________/

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United States District Court
For the Northern District of California

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Plaintiffs, a group of current and former college athletes,

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move for class certification to pursue their antitrust claims

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against Defendant National Collegiate Athletic Association

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(NCAA).1 The NCAA opposes the motion.

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parties’ submissions and oral argument, the Court grants in part

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the motion for class certification and denies it in part.

After considering the

BACKGROUND

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The procedural history and factual background of this case

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are described at length in the Court’s order denying the NCAA’s

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motion to dismiss.

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order provides only the background necessary to resolve the

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instant motion.

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Docket No. 876, at 1-7.

Accordingly, this

Plaintiffs are twenty-five current and former student-

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athletes who played for NCAA Division I men’s football and

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basketball teams between 1953 and the present.

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Third Consol. Class Action Compl. (3CAC) ¶¶ 25-233.

Docket No. 832,
Four of these

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Plaintiffs initially also filed suit against the videogame
developer, Electronic Arts, Inc. (EA), and the marketing firm,
Collegiate Licensing Company (CLC), but subsequently agreed to settle
their claims against those parties.
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Plaintiffs (Right-of-Publicity Plaintiffs) allege that the NCAA

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misappropriated their names, images, and likenesses in violation

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of their statutory and common law rights of publicity.

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twenty-one Plaintiffs (Antitrust Plaintiffs) allege that the NCAA

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violated federal antitrust law by conspiring with EA and CLC to

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restrain competition in the market for the commercial use of their

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names, images, and likenesses.

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Plaintiffs2 seek class certification to pursue their claims

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arising under the Sherman Antitrust Act, 15 U.S.C. §§ 1 et seq.

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United States District Court
For the Northern District of California

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Plaintiffs’ antitrust claims arise from the NCAA’s written

The other

In the pending motion, Antitrust

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and unwritten rules, which allegedly prohibit student-athletes

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from receiving compensation for the commercial use of their names,

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images, and likenesses.

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these rules preclude student-athletes from entering into group

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licensing arrangements with videogame developers and broadcasters

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for the use of their names, likenesses, and images.

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allege that these rules restrain competition in “two relevant

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markets: (a) the student-athlete Division I college education

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market in the United States (the ‘education market’); and (b) the

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market for the acquisition of group licensing rights for the use

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of student-athletes’ names, images, and likenesses in the

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broadcasts or rebroadcasts of Division I basketball and football

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games and in videogames featuring Division I basketball and

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football in the United States (the ‘group licensing market’).”

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Id. ¶ 391.

3CAC ¶¶ 12-15.

According to the 3CAC,

Plaintiffs

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All subsequent references to “Plaintiffs” in this order allude
specifically to the twenty-one Antitrust Plaintiffs and not to the four
Right-of-Publicity Plaintiffs, whose claims are not at issue here.
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Plaintiffs seek monetary damages to compensate them for the

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financial losses they claim to have suffered as a result of the

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NCAA’s alleged plan to fix at zero the price of student-athletes’

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group licensing rights in videogames and game broadcasts.

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addition, Plaintiffs seek to enjoin the NCAA from restraining

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competition in the group licensing market for student-athletes’

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name, image, and likeness rights in the future.

In

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LEGAL STANDARD

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Plaintiffs seeking to represent a class must satisfy the

United States District Court
For the Northern District of California

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threshold requirements of Rule 23(a) as well as the requirements

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for certification under one of the subsections of Rule 23(b).

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Rule 23(a) provides that a case is appropriate for certification

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as a class action if

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(1)

the class is so numerous that joinder of all members is
impracticable;

(2)

there are questions of law or fact common to the class;

(3)

the claims or defenses of the representative parties are
typical of the claims or defenses of the class; and

(4)

the representative parties will fairly and adequately
protect the interests of the class.

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Fed. R. Civ. P. 23(a).
Plaintiffs must also establish that one of the subsections of
Rule 23(b) is met.

In the instant case, Plaintiffs seek

certification under subsections (b)(2) and (b)(3).
Rule 23(b)(2) applies where “the party opposing the class has
acted or refused to act on grounds generally applicable to the
class, thereby making appropriate final injunctive relief or
corresponding declaratory relief with respect to the class as a
whole.”

Fed. R. Civ. Proc. 23(b)(2).

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3

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Rule 23(b)(3) permits certification where common questions of

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law and fact “predominate over any questions affecting only

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individual members” and class resolution is “superior to other

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available methods for the fair and efficient adjudication of the

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controversy.”

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intended “to cover cases ‘in which a class action would achieve

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economies of time, effort, and expense . . . without sacrificing

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procedural fairness or bringing about other undesirable results.’”

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Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 615 (1997) (quoting

United States District Court
For the Northern District of California

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Fed. R. Civ. P. 23(b)(3).

These requirements are

Fed. R. Civ. P. 23(b)(3) Adv. Comm. Notes to 1966 Amendment).

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Regardless of what type of class the plaintiff seeks to

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certify, it must demonstrate that each element of Rule 23 is

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satisfied; a district court may certify a class only if it

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determines that the plaintiff has borne this burden.

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Co. of Sw. v. Falcon, 457 U.S. 147, 158-61 (1982); Doninger v.

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Pac. Nw. Bell, Inc., 564 F.2d 1304, 1308 (9th Cir. 1977).

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general, the court must take the substantive allegations of the

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complaint as true.

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Cir. 1975).

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analysis,’” which may require it “‘to probe behind the pleadings

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before coming to rest on the certification question.’”

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Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011) (quoting

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Falcon, 457 U.S. at 160-61).

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will entail some overlap with the merits of the plaintiff’s

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underlying claim.

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2551.

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court may consider material beyond the pleadings and require

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supplemental evidentiary submissions by the parties.

Gen. Tel.

In

Blackie v. Barrack, 524 F.2d 891, 901 (9th

However, the court must conduct a “‘rigorous

Wal-Mart

“Frequently that ‘rigorous analysis’

That cannot be helped.”

Dukes, 131 S. Ct. at

To satisfy itself that class certification is proper, the

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Blackie, 524

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F.2d at 901 n.17.

“When resolving such factual disputes in the

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context of a motion for class certification, district courts must

3

consider ‘the persuasiveness of the evidence presented.’”

4

v. Verizon Cal., Inc., 2012 WL 10381, at *2 (C.D. Cal.) (quoting

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Ellis v. Costco Wholesale Corp., 657 F.3d 970, 982 (9th Cir.

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2011)).

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whether a class should be certified.

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937, 946 (9th Cir. 2003); Burkhalter Travel Agency v. MacFarms

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Int’l, Inc., 141 F.R.D. 144, 152 (N.D. Cal. 1991).

Ultimately, it is in the district court’s discretion
Molski v. Gleich, 318 F.3d

DISCUSSION

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United States District Court
For the Northern District of California

Aburto

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Plaintiffs seek to certify a class to pursue injunctive

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relief under Rule 23(b)(2) and a subclass to pursue monetary

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damages under Rule 23(b)(3).

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is defined as follows:

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All current and former student-athletes
residing in the United States who compete on,
or competed on, an NCAA Division I (formerly
known as “University Division” before 1973)
college or university men’s basketball team or
on an NCAA Football Bowl Subdivision (formerly
known as Division I-A until 2006) men’s
football team and whose images, likenesses
and/or names may be, or have been, included in
game footage or in videogames licensed or sold
by Defendants, their co-conspirators, or their
licensees after the conclusion of the
athlete’s participation in intercollegiate
athletics.

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The proposed Injunctive Relief Class

Docket No. 651, Mot. Class Cert., at 2.

This class shall not

include any officers, directors, or employees of the NCAA nor of
any Division I colleges, universities, or athletic conferences.
Id.
The proposed Damages Subclass is defined as follows:

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All former student-athletes residing in the
United States who competed on an NCAA Division
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I (formerly known as “University Division”
before 1973) college or university men’s
basketball team or on an NCAA Football Bowl
Subdivision (formerly known as Division I-A
until 2006) men’s football team whose images,
likenesses and/or names have been included in
game footage or in videogames licensed or sold
by Defendants, their co-conspirators, or their
licensees from July 21, 2005 and continuing
until a final judgment in this matter.

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Id. at 1-2.

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Injunctive Relief Class and the proposed Damages Subclass is that

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the subclass excludes current student-athletes and former student-

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athletes whose names, likenesses, and images were featured in

United States District Court
For the Northern District of California

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Thus, the only difference between the proposed

videogames or game broadcasts before July 21, 2005.
For reasons explained more fully below, the Court certifies

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the Injunctive Relief Class but declines to certify the Damages

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Subclass for failure to satisfy the requirements of Rule 23(b)(3).

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I.

Rule 23(a) Requirements

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A.

Numerosity

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Plaintiffs assert that the Injunctive Relief Class and the

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Damages Subclass each contain several thousand potential class

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members.

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sufficiently large to satisfy the numerosity prerequisite.

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Accordingly, Plaintiffs have met this requirement.

21

Citric Acid Antitrust Litig., 1996 WL 655791, at *3 (N.D. Cal.)

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(finding that plaintiffs in a nationwide antitrust class action

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satisfied the numerosity requirement by asserting that “the total

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number of class members will be in the thousands”).

The NCAA does not dispute that these classes are

See In re

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B.

Commonality

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Rule 23 contains two related commonality provisions.

Rule

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23(a)(2) requires that there be “questions of law or fact common

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to the class.”

Rule 23(b)(3), in turn, requires that these common
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questions predominate over individual ones.

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addresses only whether Plaintiffs have satisfied Rule 23(a)(2)’s

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requirements, which are “less rigorous than the companion

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requirements of Rule 23(b)(3).”

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F.3d 1011, 1019 (9th Cir. 1998) (“Rule 23(a)(2) has been construed

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permissively.”).

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This section

Hanlon v. Chrysler Corp., 150

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The Ninth Circuit has made clear that Rule 23(a)(2) may be

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satisfied even if fewer than all legal and factual questions are

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common to the class.

Meyer v. Portfolio Recovery Associates, LLC,

United States District Court
For the Northern District of California

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707 F.3d 1036, 1041 (9th Cir. 2012) (“‘All questions of fact and

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law need not be common to satisfy the [commonality requirement].’”

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(citations omitted; alterations in original)), cert. denied, 133

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S. Ct. 2361 (2013).

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divergent factual predicates is sufficient, as is a common core of

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salient facts coupled with disparate legal remedies within the

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class.’”

“‘The existence of shared legal issues with

Id. (citing Hanlon, 150 F.3d at 1019).

Plaintiffs have satisfied this requirement with respect to

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both the Injunctive Relief Class and Damages Subclass.

They have

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identified several common questions of law and fact that must be

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resolved to determine whether the NCAA violated federal antitrust

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law.

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“group licensing” markets identified in the complaint; whether

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NCAA rules have harmed competition in those markets; and whether

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the NCAA’s procompetitive justifications for its conduct are

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legitimate.

These questions include: the size of the “education” and

These types of questions, all of which may be

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Because Plaintiffs only need to satisfy the commonality
requirements of Rule 23(b)(3) with respect to the proposed Damages
Subclass, those requirements are addressed in a separate section of this
order.
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resolved by class-wide proof and argument, are typically

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sufficient to satisfy commonality in antitrust class actions.

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See, e.g., In re TFT-LCD (Flat Panel) Antitrust Litig., 267 F.R.D.

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583, 593 (N.D. Cal. 2010) (finding questions of market size and

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anticompetitive effects, among others, sufficient to satisfy

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commonality), amended in part by 2011 WL 3268649 (N.D. Cal. 2011).

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Indeed, commonality is “usually met in the antitrust [] context

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when all class members’ claims present common issues including

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(1) whether the defendant’s conduct was actionably anticompetitive

United States District Court
For the Northern District of California

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under antitrust standards; and (2) whether that conduct produced

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anticompetitive effects within the relevant product and geographic

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markets.”

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Cir. 2011) (Scirica, J., concurring), cert. denied, 132 S. Ct.

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1876 (2012).

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Sullivan v. DB Investments, Inc., 667 F.3d 273, 336 (3d

Although the NCAA notes that some of the “common” questions

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that Plaintiffs identify in their brief -- such as certain damage-

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related questions -- are not actually amenable to class-wide

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proof, this is not sufficient to defeat commonality.

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above, “all that Rule 23(a)(2) requires is ‘a single significant

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question of law or fact.’”

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Inc., 2013 WL 5383225, at *3 (9th Cir. 2013) (emphasis in

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original; citing Mazza v. Am. Honda Motor Co., 666 F.3d 581, 588

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(9th Cir. 2012)).

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re NCAA I-A Walk-On Football Players Litig., 2006 WL 1207915, at

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*5 (W.D. Wash.) (“[T]he Court notes that common issues here

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include: whether Bylaw 15.5.5 is a horizontal restraint of trade

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in violation of the Sherman Act; whether there is a relevant

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market for antitrust purposes; whether the NCAA and its members

As noted

Abdullah v. U.S. Sec. Associates,

Plaintiffs have met that burden here.

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See In

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have improperly monopolized Division I-A college football; [and]

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whether there has been injury to competition.”).

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C.

Typicality

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Rule 23(a)(3) requires that the “claims or defenses of the

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representative parties [be] typical of the claims or defenses of

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the class.”

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class and possess the same interest and suffer the same injury as

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the class members.”

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Motor Freight Sys., Inc. v. Rodriguez, 431 U.S. 395, 403 (1977))

Thus, every “class representative must be part of the

Falcon, 457 U.S. at 156 (quoting E. Tex.

United States District Court
For the Northern District of California

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(internal quotation marks omitted).

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satisfied if the named plaintiffs have suffered the same or

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similar injuries as the unnamed class members, the action is based

13

on conduct which is not unique to the named plaintiffs, and other

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class members were injured by the same course of conduct.

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v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992).

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Typicality is not met, however, “where a putative class

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representative is subject to unique defenses which threaten to

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become the focus of the litigation.”

19

Packaging Corp. v. Merrill Lynch, Pierce, Fenner & Smith, Inc.,

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903 F.2d 176, 180 (2d Cir. 1990).

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This requirement is usually

Hanon

Id. (quoting Gary Plastic

In this case, the named Plaintiffs’ interests are closely

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aligned with those of absent class members.

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Plaintiffs play or played for a Division I men’s football or

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basketball team; all were depicted, without their consent and

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without payment, in videogames or game broadcasts; and all

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complied with NCAA rules that allegedly barred them from selling

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or licensing the rights to their names, images, and likenesses.

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These characteristics are common to every putative class member
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All of the named

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and form the basis for the antitrust injuries that Plaintiffs

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assert in this case.

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members’ injuries, claims, and legal theory is typically

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sufficient to satisfy Rule 23(a)(3).

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Football Players, 2006 WL 1207915, at *6 (finding Rule 23(a)(3)

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typicality satisfied where “the legal theory to be advanced by all

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class members -- that the NCAA and its members violated the

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Sherman Act -- is identical”); White v. NCAA, Case No. 06–999,

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Docket No. 95, slip op. at 3 (C.D. Cal. Dec. 19, 2006) (finding

In antitrust cases, this uniformity of class

See NCAA I-A Walk-On

United States District Court
For the Northern District of California

10

Rule 23(a)(3) typicality satisfied where former college athletes

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“allege[d] a horizontal agreement by the NCAA in violation of the

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Sherman Act” and asserted that “they were all affected by the

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[challenged NCAA rule] in the same way”).

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The NCAA has not identified any defense that applies uniquely

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to the named Plaintiffs nor any other barrier to Rule 23(a)(3)

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typicality.

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23(a)(3) in either of its briefs.4

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claims and interests are common to the class, they have satisfied

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the typicality requirement here.

In fact, it fails to cite, let alone discuss, Rule
Thus, because Plaintiffs’

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D.

Adequacy

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Rule 23(a)(4) establishes as a prerequisite for class

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certification that “the representative parties will fairly and

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adequately protect the interests of the class.”

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23(a)(4).

Fed. R. Civ. P.

Rule 23(g)(2) imposes a similar adequacy requirement on

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Although the NCAA contends that “[i]ndividual defenses will
predominate,” Docket No. 789, NCAA Sur-Reply, at 22, it raises this
argument under Rule 23(b)(3), not Rule 23(a)(3). Accordingly, these
“individual defenses” are addressed separately below, in the section
discussing the requirements of Rule 23(b)(3).
4

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class counsel.

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adequacy: (1) do the named plaintiffs and their counsel have any

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conflicts of interest with other class members and (2) will the

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named plaintiffs and their counsel prosecute the action vigorously

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on behalf of the class?”

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“Resolution of two questions determines legal

Hanlon, 150 F.3d at 1020.

The NCAA contends that there are conflicts of interest among

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class members that preclude class certification here.

It points

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specifically to the fact that, in an unrestrained market for

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publicity rights, some putative class members -- such as star

United States District Court
For the Northern District of California

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athletes -- would command a higher price for their name, image,

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and likeness rights than others.

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Plaintiffs were to prevail in this case, those high-value class

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members would be entitled to a larger share of damages than others

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because they would have suffered greater economic losses from the

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NCAA’s ban on student-athlete compensation.

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proposed model for allocating damages fails to account for these

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differences between class members.

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proposes that damages be allocated equally among the members of

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every football and basketball team.

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Noll, describes the process as follows:

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According to the NCAA, if

Yet, Plaintiffs’

Instead, Plaintiffs’ model

Plaintiffs’ expert, Dr. Roger

First, all revenues [from videogame and
broadcast licenses] are allocated to either
basketball or football at a college. These
revenues are then multiplied by the
appropriate sharing formula between colleges
and student-athletes. For each college, each
revenue stream is further divided between
current and former teams. Reflecting the
common practice in group licenses, the revenue
that is assigned to current players is divided
equally among all members of the current team.

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Docket No. 651-3, Expert Report of Roger Noll, at 107.

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contends that this proposal for allocating damages benefits

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lesser-known athletes at the expense of more popular athletes.

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This argument is not persuasive for several reasons.

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The NCAA

First, the supposed intra-class conflict that the NCAA has

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identified here is illusory.

Although it is true that class

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members’ publicity rights vary widely in value, it does not

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necessarily follow that a model of equal sharing among team

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members would inevitably create a conflict of interest.

As noted

United States District Court
For the Northern District of California

10

above, Plaintiffs allege harm to competition within a group

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licensing market, not an individual licensing market.

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distinction is important because it renders irrelevant any

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differences in the value of each class member’s individual

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publicity rights.

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greater economic losses than others because the NCAA prevented

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them from licensing their individual publicity rights, those

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losses would have no bearing on this case, where Plaintiffs seek

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compensation only for losses suffered in the group licensing

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market.

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This

After all, even if some class members suffered

Courts have highlighted this distinction in other cases where

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plaintiffs sought class certification to pursue claims based on

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group licensing rights.

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court in this district certified a class of retired professional

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football players who charged the NFL with breaching a series of

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group licensing agreements that the players had previously signed.

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2008 WL 1925208, at *9 (N.D. Cal.).

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the NFL’s argument that class certification was inappropriate

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because the players’ publicity rights varied in value.

In Parrish v. NFL, for instance, another

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The court expressly rejected

Id. at *3

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(“Despite the varying celebrity of retired players, the proposed

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class as a whole has a common interest in determining what, if

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any, rights they have under the [group licensing agreements].”).

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The court reasoned that, because the players’ claims were not

5

based on individual licensing rights, the “star athletes of the

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class would [] still be able to license their celebrity on an

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individual basis for whatever amount they choose.

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would have no effect on the class.

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group license.”

Such licensing

What is at stake here is the

Id. at *6 (emphasis in original); accord Brown v.

United States District Court
For the Northern District of California

10

NFL Players Ass’n, 281 F.R.D. 437, 442-43 (C.D. Cal. 2012).5

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same principle applies here and illustrates that Plaintiffs’

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proposed model for allocating damages does not create a real

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conflict of interest among class members.

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The

Even if Plaintiffs’ method of allocating damages did create

15

such a conflict, this would not be sufficient to prevent class

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certification.

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calculations alone cannot defeat certification” and the “potential

The Ninth Circuit has made clear that “damage

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Like Parrish, Brown involved claims by a group of retired
football players seeking to assert their group licensing rights under a
series of agreements with the NFL. In considering the plaintiffs’ class
certification motion, the Brown court explained,
5

Contrary to Defendants’ assertions, [the named
plaintiff]’s relative lack of celebrity does not
cause his damages claim to conflict with the
claims of absent class members. In their
Complaint, Plaintiffs do not allege that
Defendants failed to honor individual licensing
agreements, where the players’ relative celebrity
would likely affect how much Defendants owed each
retired NFLPA member. Instead, Plaintiffs allege
that Defendants failed to license the group of
retired NFLPA members in the proposed class and to
distribute group licensing revenue to them.
281 F.R.D. at 442-43.

13

1

existence of individualized damage assessments . . . does not

2

detract from the action’s suitability for class certification.”

3

Yokoyama v. Midland Nat’l Life Ins. Co., 594 F.3d 1087, 1089, 1094

4

(9th Cir. 2010).

5

potential for intra-class conflicts would arise only at the final

6

stage of damage allocation, when damages would be divided among

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the members of each team.

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that stage, the entire class would still share an interest in

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establishing that the NCAA restrained competition in the relevant

This is especially true here, where the

No matter how damages were divided at

United States District Court
For the Northern District of California

10

markets and that it lacked a procompetitive justification for

11

doing so.

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not tied to their expert’s proposed method for dividing damages

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among team members,6 their expert’s proposed method will not

14

prevent them from adequately representing the class’s most

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important interest: to wit, establishing the NCAA’s liability.

16

Finally, to the extent that Plaintiffs’ damages model did

Because Plaintiffs’ underlying theory of liability is

17

create the potential for any conflicts of interest, those

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conflicts would only affect class members seeking monetary

19

relief -- that is, members of the Damages Subclass.

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of the broader Injunctive Relief Class would not be affected by

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any conflicts that could arise at the damages stage of the

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The interests

Indeed, Plaintiffs’ expert could propose a different model for
allocating damages among team members without altering his substantive
analysis of the NCAA’s impact on the relevant markets. This is one
reason why Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013), which the
NCAA cites for support, is inapposite here. In Comcast, the Supreme
Court decertified a class of antitrust plaintiffs because their expert’s
damages model was based, in part, on a theory of antitrust liability
that the trial court had rejected. Id. at 1433. Here, in contrast, not
only is Plaintiffs’ damages model based on a permissible theory of
antitrust liability but, what’s more, the NCAA has attacked an aspect of
Plaintiffs’ damages model that could be altered without changing their
underlying theory of antitrust liability.
6

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litigation.

Thus, Plaintiffs’ proposed damages model does not

2

defeat certification here under Rule 23(a)(4).
Plaintiffs have therefore satisfied all of the Rule 23(a)

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4

requirements with respect to both the Injunctive Relief Class and

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the Damages Subclass.

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II.

Rule 23(b) Requirements

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A.

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A court may grant certification under Rule 23(b)(2) “if class

9

Rule 23(b)(2): Injunctive Relief Class

members complain of a pattern or practice that is generally

United States District Court
For the Northern District of California

10

applicable to the class as a whole.

11

have not been injured by the challenged practice, a class may

12

nevertheless be appropriate.”

13

1047 (9th Cir. 1998); see also 7A Wright, Miller & Kane, Federal

14

Practice & Procedure § 1775 (2d ed. 1986) (“All the class members

15

need not be aggrieved by or desire to challenge the defendant’s

16

conduct in order for some of them to seek relief under Rule

17

23(b)(2).”).

18

the viability or bases of class members’ claims for declaratory

19

and injunctive relief, but only to look at whether class members

20

seek uniform relief from a practice applicable to all of them.”

21

Rodriguez v. Hayes, 591 F.3d 1105, 1125 (9th Cir. 2010).

22

Even if some class members

Walters v. Reno, 145 F.3d 1032,

Rule 23(b)(2) does not require a court “to examine

Here, the NCAA contends that certification under Rule

23

23(b)(2) is inappropriate because Plaintiffs’ “demand for damages

24

predominates over any request for injunctive relief” and

25

“‘individualized monetary claims belong in Rule 23(b)(3)’” rather

26

than Rule 23(b)(2).

27

22 (citing Dukes, 131 S. Ct. at 2558).

28

the nature of the relief that Plaintiffs seek.

Docket No. 677, NCAA Opp. Class Cert., at 21-

15

This argument misstates
As previously

1

explained, Plaintiffs seek to certify one class under Rule

2

23(b)(2) to pursue declaratory and injunctive relief and another

3

class under Rule 23(b)(3) to pursue monetary relief.

4

the federal rules or existing case law prevents them from seeking

5

certification under both of these provisions.

6

AT&T iPad Unlimited Data Plan Litig., 2012 WL 2428248 (N.D. Cal.)

7

(explaining that “a court may certify a Rule 23(b)(2) class for

8

injunctive relief and a separate class for individual damages or,

9

if the damage claims do not meet Rule 23(b)(3) standards, certify

Nothing in

See In re Apple,

United States District Court
For the Northern District of California

10

the Rule 23(b)(2) class alone” (citing Schwarzer, Tashima &

11

Wagstaffe, Cal. Practice Guide: Federal Civil Procedure Before

12

Trial § 10:404 (2011))).

13

With respect to the Rule 23(b)(2) class, Plaintiffs seek

14

certification to pursue an injunction barring the NCAA from

15

prohibiting current and former student-athletes from entering into

16

group licensing deals for the use of their names, images, and

17

likenesses in videogames and game broadcasts.

18

this injunction is not merely ancillary to their demand for

19

damages.

20

restraints that the NCAA has allegedly imposed on competition in

21

the relevant markets.

22

all class members -- including both current and former student-

23

athletes -- would potentially be subject to ongoing antitrust

24

harms resulting from the continued unauthorized use of their

25

names, images, and likenesses.

26

all class members “uniform relief” from this harm, Rodriguez, 591

27

F.3d at 1125, class certification is appropriate under Rule

28

23(b)(2).

Their request for

Rather, it is deemed necessary to eliminate the

Without the requested injunctive relief,

Because an injunction would offer

16

1

B.

Rule 23(b)(3): Damages Subclass

2

To qualify for certification under Rule 23(b)(3), “a class

3

must satisfy two conditions in addition to the Rule 23(a)

4

prerequisites: common questions must ‘predominate over any

5

questions affecting only individual members,’ and class resolution

6

must be ‘superior to other available methods for the fair and

7

efficient adjudication of the controversy.’”

8

1022 (quoting Fed. R. Civ. P. 23(b)(3)).

9

the court to take into account the “likely difficulties in

Hanlon, 150 F.3d at

The rule also requires

United States District Court
For the Northern District of California

10

managing a class action.”

11

together, these requirements impose “an obligation on the court to

12

make findings that will demonstrate the utility and propriety of

13

employing the class-action device in the case before it.”

14

Wright, Miller & Kane, Federal Practice & Procedure § 1777 (3d ed.

15

2013).

16

Fed. R. Civ. P. 23(b)(3)(D).

Taken

7AA

Plaintiffs have not presented sufficient evidence here to

17

establish that certification is appropriate under Rule 23(b)(3).

18

In particular, they have failed to satisfy the manageability

19

requirement because they have not identified a feasible way to

20

determine which members of the Damages Subclass were actually

21

harmed by the NCAA’s allegedly anticompetitive conduct.

22

have recognized that, in price-fixing cases such as this one,

23

where the “fact of injury” cannot be determined by a “virtually

24

mechanical task,” class manageability problems frequently arise.

25

See, e.g., Windham v. Am. Brands, Inc., 565 F.2d 59, 67-68 (4th

26

Cir. 1977) (recognizing “respectable authorities in which

27

certification of an anti-trust action was denied because of the

28

complexity of, and the difficulties connected with, the proof of
17

Courts

1

individual injury”); In re Graphics Processing Units Antitrust

2

Litig., 253 F.R.D. 478, 489 (N.D. Cal. 2008) (“Direct-purchaser

3

plaintiffs have failed to supply a class-wide method for proving

4

‘impact’ on a class-wide basis.”).

5

The first barrier to manageability here is the so-called

6

“substitution effect,” which stems from Dr. Noll’s opening expert

7

report on the economic impact of the NCAA’s rules.

8

customary in antitrust cases, Dr. Noll’s report described how the

9

relevant markets would be expected to function in the absence of

As is

United States District Court
For the Northern District of California

10

the challenged restraints on competition -- in this case, without

11

the ban on student-athlete compensation.

12

Meritor, LLC v. Eaton Corp., 696 F.3d 254, 292 (3d Cir. 2012)

13

(noting that, in antitrust cases, “an expert may construct a

14

reasonable offense-free world as a yardstick for measuring what,

15

hypothetically, would have happened ‘but for’ the defendant’s

16

unlawful activities” (citations omitted)).

17

that, because student-athletes are often motivated by financial

18

concerns when choosing whether and where to attend college, “the

19

expected effect [of the ban on student-athlete pay] is to change

20

the identities of the students who accept an athletic

21

scholarship.”

22

illustrate this point, Dr. Noll examined the experiences of more

23

than one hundred Division I basketball players who left college

24

early between 2008 and 2010 to seek out opportunities to play

25

professionally.

26

these players “plausibly would have stayed in college” if they had

27

been permitted to participate in a competitive group licensing

See generally ZF

Dr. Noll explained

Docket No. 651-3, Noll Expert Report, at 58-59.

Id. at 61-63, Ex. 9B.

28
18

To

He concluded that many of

1

market, because the financial costs of staying in school would

2

have been lower.

Id. at 62.

3

Critically, however, Dr. Noll also notes that if these

4

athletes had stayed in college -- as they might have done if not

5

for the alleged restraints on competition in the group licensing

6

market -- they would have displaced other student-athletes on

7

their respective teams.

8

Feb. 2013 R. Noll Depo., at 364:13-:24.

9

athletes would have either been forced to play for other Division

Docket No. 683, Wierenga Decl., Ex. 4,
Those displaced student-

United States District Court
For the Northern District of California

10

I teams or simply lost the opportunity to play Division I

11

basketball altogether.

12

suffered injuries as members of the teams for which they actually

13

played because, as Dr. Noll suggests, they would never have been

14

able to play for those teams in the absence of the challenged

15

restraints.

16

(“[T]he NCAA rules simultaneously caused dead-weight loss for

17

students who decided not to accept a scholarship for Division IA

18

football or Division I basketball because of the price increase

19

[in the cost of attendance] and an inefficient substitution

20

because students of lesser athletic ability substituted for

21

students of greater athletic ability.”).

22

individuals -- all of whom are putative members of the Damages

23

Subclass -- may have even benefitted from the challenged

24

restraints by earning roster spots that would have otherwise gone

25

to more talented student-athletes.

26

In either case, they would not have

See Docket No. 651-3, Noll Expert Report, at 59

Indeed, many of these

Plaintiffs have not proposed any method for addressing this

27

substitution effect among individual student-athletes.

28

they proposed any method for addressing the related substitution
19

Nor have

1

effect among Division I schools.

One of Plaintiffs’ central

2

contentions in this case is that, without the ban on student-

3

athlete pay, competition among Division I schools for student-

4

athletes would increase substantially.

5

for student-athletes, combined with the potentially higher costs

6

of recruiting and retaining those student-athletes, would have

7

likely driven some schools into less competitive divisions,

8

thereby insulating entire teams from the specific harms that

9

Plaintiffs allege in this suit.

That increased competition

Wierenga Decl., Ex. 2, Expert

United States District Court
For the Northern District of California

10

Report of Daniel L. Rubinfeld, at ¶¶ 185-86.

11

provided a feasible method for determining which members of the

12

Damages Subclass would still have played for Division I teams --

13

and, thus, suffered the injuries alleged here -- in the absence of

14

the challenged restraints.

15

to the impossibility of determining which class members were

16

actually injured by the NCAA’s alleged restraints on competition

17

and, as such, precludes certification under Rule 23(b)(3).

18

NCAA I-A Walk-On Football Players, 2006 WL 1207915, at *8-*9

19

(denying class certification to a group of student-athletes who

20

challenged the NCAA’s cap on team scholarships because raising the

21

scholarship cap would increase the level of competition for those

22

scholarships and thus require every putative class member to prove

23

individually that he would have obtained a scholarship and others

24

would not).

25

Plaintiffs have not

This shortcoming likewise contributes

See

Another barrier to manageability here is determining which

26

student-athletes were actually depicted in videogames during the

27

relevant class period and, thus, members of the Damages Subclass.

28

See Rowden v. Pac. Parking Sys., Inc., 282 F.R.D. 581, 585 (C.D.
20

1

Cal. 2012) (“A class action is not manageable if membership of the

2

class cannot be sufficiently well-defined at the outset.”); Chavez

3

v. Blue Sky Natural Beverage Co., 268 F.R.D. 365, 376 (N.D. Cal.

4

2010) (stating that class certification is not appropriate unless

5

it is “administratively feasible to determine whether a particular

6

person is a class member”).

7

Bowl Subdivision (formerly known as Division I-A) is allowed up to

8

105 players -- eighty-five scholarship players and twenty non-

9

scholarship players.

Every team in the NCAA’s Football

Wierenga Decl., Ex. 4, Feb. 2013 R. Noll

United States District Court
For the Northern District of California

10

Depo., at 102:18-103:2.

In contrast, the football teams depicted

11

in NCAA-licensed videogames have only sixty-eight players each.

12

Docket No. 703, Slaughter Decl., Ex. 69, R. Harvey Depo. 24:15-

13

:21.

14

NCAA-licensed videogames is considerably smaller than the number

15

of student-athletes who actually played for a Division I football

16

team during the class period.

17

feasible method for determining on a class-wide basis which

18

student-athletes are depicted in these videogames and which are

19

not.7

20

the Damages Subclass without conducting thousands of

21

individualized comparisons between real-life college football

22

players and their potential videogame counterparts.

As a result, the number of student-athletes depicted in

Plaintiffs have not offered a

This makes it impossible to determine who is a member of

23

Plaintiffs have also failed to present a feasible method for

24

determining on a class-wide basis which student-athletes appeared

25

in game footage during the relevant period.

26

proposed class definition, the only student-athletes who belong in

Under Plaintiffs’

27
Using players’ jersey numbers is not an option because NCAA teams
frequently allow multiple players to wear the same jersey number.
7

28

21

1

the Damages Subclass are those who appeared in game footage

2

licensed after July 21, 2005.

3

straightforward method for identifying this subset of student-

4

athletes.

5

containing information such as team rosters, game summaries,

6

televised game schedules, and broadcast licenses, they have not

7

provided any formula for extracting the relevant information from

8

each of these resources and using that information to identify

9

putative subclass members.

Plaintiffs have not proposed a

Although they point to various third-party resources

In particular, Plaintiffs have not

United States District Court
For the Northern District of California

10

explained how they would determine which of the student-athletes

11

listed on team rosters actually appeared in televised games.

12

have they explained how they would determine which games were

13

broadcast pursuant to licenses issued after July 21, 2005.

14

Without a means of accomplishing these tasks on a class-wide

15

basis, Plaintiffs would have to cross-check thousands of team

16

rosters against thousands of game summaries and compare dozens of

17

game schedules to dozens of broadcast licenses simply to determine

18

who belongs in the Damages Subclass.

19

system for identifying class members.

Nor

This is not a workable

20

In light of these obstacles to manageability, class

21

resolution does not provide a superior method for adjudicating

22

this controversy.

23

Subclass under Rule 23(b)(3) is denied.

24

III. Evidentiary Objections

25

Accordingly, certification of the Damages

The NCAA’s objections to the testimony of Plaintiffs’

26

experts, Dr. Noll and Larry Gerbrandt, are overruled.

27

these witnesses offered relevant testimony regarding whether the

28

question of antitrust liability can be resolved through class-wide
22

Each of

1

proof and analysis and each witness based his opinions on a

2

sufficiently reliable methodology.

3

Federal Rule of Evidence 702.

4

(9th Cir. 2010) (requiring the trial court to “assure that the

5

expert testimony ‘both rests on a reliable foundation and is

6

relevant to the task at hand’” (citations omitted)).

7

NCAA may question the strength of their analyses, the Ninth

8

Circuit has made clear that, under Rule 702, “Shaky but admissible

9

evidence is to be attacked by cross examination, contrary

This is enough to satisfy

Primiano v. Cook, 598 F.3d 558, 564

While the

United States District Court
For the Northern District of California

10

evidence, and attention to the burden of proof, not exclusion.”

11

Id.
CONCLUSION

12
13

For the reasons set forth above, Plaintiffs’ motion for class

14

certification (Docket No. 651) is GRANTED in part and DENIED in

15

part.

16

23(b)(2):

The Court certifies the following class under Rule

17

All current and former student-athletes
residing in the United States who compete on,
or competed on, an NCAA Division I (formerly
known as “University Division” before 1973)
college or university men’s basketball team or
on an NCAA Football Bowl Subdivision (formerly
known as Division I-A until 2006) men’s
football team and whose images, likenesses
and/or names may be, or have been, included in
game footage or in videogames licensed or sold
by Defendants, their co-conspirators, or their
licensees after the conclusion of the
athlete’s participation in intercollegiate
athletics.

18
19
20
21
22
23
24
25
26
27

Further, Antitrust Plaintiffs’ attorneys are certified as class
counsel.
The NCAA’s motion for leave to file a supplemental memorandum
regarding new evidence (Docket No. 881) is DENIED.

28
23

The NCAA has

1

not explained why it was unable to obtain and present this

2

evidence during the extensive briefing on class certification.

3

addition, the NCAA’s request to present this evidence is moot

4

because the evidence pertains to the calculation and allocation of

5

damages, which is no longer relevant in light of the Court’s

6

denial of class certification under Rule 23(b)(3).

7

In

Plaintiffs shall submit any dispositive motions, including

8

any Daubert motions, in a single twenty-five page brief within one

9

week of this order.

The NCAA shall file its opposition and any

United States District Court
For the Northern District of California

10

cross-motions in a single twenty-five page brief, including any

11

evidentiary objections it intends to raise, on or before December

12

5, 2013.

13

single fifteen-page brief on or before January 6, 2014.

14

shall file its reply in a single fifteen-page brief on or before

15

February 3, 2014.

16

including all evidentiary objections, and hold a case management

17

conference at 2:00 p.m. on February 20, 2014.

18

Plaintiffs shall file their reply and opposition in a
The NCAA

The Court shall hear all dispositive motions,

IT IS SO ORDERED.

19
20
21

Dated:

11/8/2013

CLAUDIA WILKEN
United States District Judge

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