O'Bannon, Jr. v. National Collegiate Athletic Association et al

Filing 167

MOTION for Preliminary Approval of Class Action Settlement; Memorandum of Points and Authorities In Support Of filed by Edward C. O'Bannon, Jr.. Motion Hearing set for 7/3/2014 02:00 PM in Courtroom 2, 4th Floor, Oakland before Hon. Claudia Wilken. Responses due by 6/13/2014. Replies due by 6/20/2014. (Attachments: #1 Memorandum In Support, #2 Exhibit 1, #3 Declaration of Michael D. Hausfeld, #4 Declaration of Steve W. Berman, #5 Declaration of Leonard W. Aragon)(Scherrer, Hilary) (Filed on 5/30/2014) Modified on 6/2/2014 (cpS, COURT STAFF).

EXHIBIT 1

1
2
3
4
5
6
7
8
9
10

Steve W. Berman (Pro Hac Vice)
Robert B. Carey (Pro Hac Vice)
Leonard W. Aragon (Pro Hac Vice)
HAGENS BERMAN SOBOL SHAPIRO LLP
11 West Jefferson, Suite 1000
Phoenix, Arizona 85003
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
[e-mail]
Michael P. Lehmann (Cal. Bar No. 77152)
Arthur N. Bailey, Jr. (Cal. Bar No. 248460)
HAUSFELD LLP
44 Montgomery St., 34th Floor
San Francisco, CA 94104
Tel: [phone]
Fax: [phone]
E-mail:[e-mail]
[e-mail]

11
12

Interim Co-Lead Counsel for Antitrust and Right of Publicity Plaintiffs

13
14

UNITED STATES DISTRICT COURT

15

NORTHERN DISTRICT OF CALIFORNIA

16

OAKLAND DIVISION

17
18
19
20
21
22
23
24
25
26
27
28

In re NCAA Student-Athlete Name & Likeness
Licensing Litigation

Case No. 4:09-cv-1967 CW (NC)
CLASS ACTION SETTLEMENT
AGREEMENT AND RELEASE
Complaint Filed: May 5, 2009

1

I.

PARTIES TO THE SETTLEMENT AGREEMENT

2

This Class Action Settlement Agreement and Release (“Settlement Agreement” or

3

“Agreement”) is entered into by, between, and among the following Plaintiffs and Settling

4

Defendant:

5

PLAINTIFFS

6

(i).

7
8

Keller Right of Publicity Plaintiffs: Samuel Michael Keller, Bryan Cummings,

Lamarr Watkins, and Byron Bishop (collectively Keller Plaintiffs)
(ii).

Antitrust Plaintiffs: Edward C. O’Bannon Jr., Oscar Robertson, William Russell,

9

Harry Flournoy, Alex Gilbert, Sam Jacobson, Thad Jaracz, David Lattin, Patrick Maynor, Tyrone

10

Prothro, Damien Rhodes, Eric Riley, Bob Tallent, Danny Wimprine, Ray Ellis, Tate George, Jake

11

Fischer, Jake Smith, Darius Robinson, Moses Alipate and Chase Garnham (collectively O’Bannon

12

Plaintiffs); and

13

(iii).

14

The Keller Right of Publicity Plaintiffs, Antitrust Plaintiffs, and Alston/Hart Right of

Alston/Hart Right of Publicity Plaintiffs: Shawne Alston and Ryan Hart.

15

Publicity Plaintiffs are collectively referred to as “Plaintiffs,” and enter into this agreement on

16

behalf of themselves and the Settlement Class as defined below.

17

SETTLING DEFENDANT

18

Defendant Electronic Arts Inc. may be referred to as “EA” or “Settling Defendant.”

19

Defendant Collegiate Licensing Company (“CLC”) is not a party to this Agreement, but is a

20

Released Party (as that term is defined below). The National Collegiate Athletic Association

21

(“NCAA”) is not a party to this Agreement and nothing in this Agreement shall be construed as

22

waiving any right, cause of action, or claim against the NCAA, provided however that nothing in

23

the foregoing shall affect the contribution bar described below in Paragraph 8(c).

24
25

Plaintiffs and Settling Defendant are each a “Party” and collectively referred to herein as
“the Parties.” This Agreement shall apply to all Settlement Class Members.

26
27
28
1

1

LAWSUITS

2

This Agreement is entered into in order to effect a full and final settlement and dismissal

3

with prejudice of all claims brought or that could have been brought against EA and CLC in the

4

following actions:

5

•

Keller v. Electronic Arts, Inc. et al., Case No. 4:09-cv-01967-CW;

•

O'Bannon, Jr. v. National Collegiate Athletic Association et al., 4:09-cv-03329-CW;

8

•

Bishop v. Electronic Arts, Inc., et al., 4:09-cv-04128-CW;

9

•

Hart v. Electronic Arts, Inc., Case No. 09-CV-05990-FLW-LHG (removed from
Case No. SOM-L-1094-09);

•

Anderson v. National Collegiate Athletic Association et al, 4:09-cv-05100-CW;

•

Thrower, et al. v. National Collegiate Athletic Association, et al., Case No. C-10632;

•

Maze, et al. v. National Collegiate Athletic Association, et al., Case No. C-10-5569;

•

Robertson, et al. v. National Collegiate Athletic Association, et al., Case No. CV11-0388;

•

Hubbard, et al. v. Electronic Arts, Inc., Case No. 27858;

•

Nuckles, et al. v. National Collegiate Athletic Association, et al. Case No. 27864;

•

Jacobson v. National Collegiate Athletic Association et al., Case No. 4:09-cv05372-CW;

•

Maze et al v. National Collegiate Athletic Association et al., 3:10-cv-05569-MEJ;

•

Newsome v. National Collegiate Athletic Association et al., 4:09-cv-04882-CW;

•

Rhodes v. National Collegiate Athletic Association et al., 4:09-cv-05378-CW

•

Wimprine v. National Collegiate Athletic Association et al., 4:09-cv-05134-CW; and

•

Russell v. National Collegiate Athletic Association et al., Case No. 4:11-cv-04938CW;

•

Alston v. Electronic Arts Inc., Case No. 13-cv-05157-FLW-LHG

6
7

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

2

1

The Anderson, Bishop, Jacobson, Keller, Newsome, O’Bannon, Rhodes, Robertson, Russell,

2

Thrower and Wimprine cases have been consolidated under the caption In re NCAA Student-Athlete

3

Name and Likeness Licensing Litigation, Case No. 09-CV-1967-CW. Collectively, all the actions

4

listed above are referred to herein as the “Lawsuits.” This Agreement is intended to fully and

5

finally compromise, resolve, discharge and settle the Released Claims on the terms set forth below,

6

and to the full extent reflected herein, subject to the approval of the Court.

7

II.

RECITALS

8

Keller Right of Publicity Plaintiffs and Alston/Hart Right of Publicity Plaintiffs

9

WHEREAS, on May 5, 2009, Plaintiff Samuel Keller filed a lawsuit in the Northern

10

District of California against EA, CLC, and the NCAA on behalf of himself and a proposed class

11

of all NCAA football and basketball players listed in the opening day roster of a school whose

12

team was included in any interactive software produced by EA, and whose assigned jersey number

13

appears on a virtual player in the software;

14

WHEREAS, on March 10, 2010, the Keller Plaintiffs amended the complaint to, among

15

other things, re-define the proposed class as (1) all NCAA football and basketball players listed in

16

the opening day roster of a school whose team was included in any interactive software produced

17

by EA, and whose assigned jersey number appears on a virtual player in the software, and (2) all

18

persons whose photographed image was included in any NCAA-related interactive software

19

produced by EA;

20

WHEREAS, on June 15, 2009, Plaintiff Ryan Hart and Troy Taylor filed a lawsuit in the

21

Superior Court of New Jersey against EA on behalf of themselves and all others similarly situated

22

for the “unauthorized advertisements and sale of products bearing the identity and likeness” of

23

Plaintiffs Ryan Hart and Troy Taylor;

24

WHEREAS, on October 24, 2009, Plaintiff Hart amended his complaint to dismiss Plaintiff

25

Taylor and, among other things, further define the class as “all athletes whose unauthorized images

26

were used by Defendant(s) [sic] for the sale of products bearing the identities and likenesses of the

27

Plaintiff and Class Members in disregard of the rights of the Plaintiff and Class Members.”

28
3

1

WHEREAS, EA removed the First Amended Complaint filed by Hart to the United States

2

District Court for the District of New Jersey. After removal, Hart filed a Second Amended

3

Complaint on October 12, 2010;

4

WHEREAS, on August 27, 2013, Plaintiff Shawne Alston filed a lawsuit in the United

5

States District Court for the District of New Jersey against EA on behalf of himself and two

6

proposed classes of: (1) all NCAA football and basketball players listed in the opening day roster

7

of a school whose team was included in any interactive software produced by EA, and whose

8

assigned jersey number appears on a virtual player in the software, and (2) all persons whose

9

photographed image was included in any NCAA-related interactive software produced by EA;

10
11
12

WHEREAS, Alston and Hart are pending before the Honorable Freda Wolfson in the
United States District Court for the District of New Jersey
WHEREAS, Plaintiff Hart and the proposed class are represented by The McKenna Law

13

Firm LLC and Lum, Drasco & Positan LLC, and Plaintiff Alston and the putative class described

14

in the complaint are represented by Hagens Berman.

15

WHEREAS, Timothy J. McIlwain, Esq. voluntarily withdrew as counsel in the Hart action

16

on November 14, 2013, and The Lanier Law Firm, PLLC, voluntarily withdrew as counsel in the

17

Hart action on October 15, 2013.

18

WHEREAS, the Keller, Hart, and Alston complaints allege generally that Defendants

19

misappropriated NCAA football and basketball players’ rights of publicity by using student

20

athletes’ names, images, and likenesses in EA’s NCAA-Branded Videogames and that Plaintiffs

21

and all putative class members were harmed by Defendants’ conduct.

22

Antitrust Plaintiffs

23

WHEREAS, on July 21, 2009, Plaintiff Edward C. O’Bannon Jr. filed a lawsuit against the

24

CLC and NCAA on behalf of himself and a proposed class of current and former NCAA Division I

25

basketball players and Football Bowl Subdivision football players, and subsequently amended his

26

Complaint to add EA as a defendant;

27
28
4

1

WHEREAS, Plaintiff O’Bannon alleged, among other things, that the NCAA, its member

2

schools and conferences, CLC and EA committed violations of the federal antitrust laws by

3

engaging in a price fixing conspiracy and a group boycott/refusal to deal that unlawfully foreclosed

4

class members from receiving compensation in connection with the commercial exploitation of

5

their names, images, and likenesses during the years in which they played Division I college

6

basketball or football and after their intercollegiate athletic competition ceased;

7
8

WHEREAS, on July 18, 2013, Plaintiff O’Bannon filed a Third Consolidated Amended
Complaint, adding certain plaintiffs and making other modifications, as ordered by the Court;

9

Consolidation

10

WHEREAS, the Keller and O’Bannon lawsuits were consolidated under the name In re

11

NCAA Student-Athlete Name and Likeness Licensing Litigation on January 15, 2010, and all

12

subsequent cases filed by the Keller Plaintiffs and Antitrust Plaintiffs were also consolidated into

13

In re NCAA Student-Athlete Name and Likeness Licensing Litigation;

14

WHEREAS, on January 15, 2010, Judge Wilken appointed Hagens Berman Sobol Shapiro

15

LLP and Hausfeld LLP as “Interim Co-Lead Counsel” (collectively, Interim Class Counsel) in In

16

re NCAA Student-Athlete Name and Likeness Licensing Litigation, with Hagens Berman having

17

“primary responsibility” for claims related to the allegations made in Keller v. EA and Hausfeld

18

LLP having primary responsibility for claims related to the allegations made in O’Bannon v.

19

NCAA.

20

Settlement

21

WHEREAS, Class Members’ claims against EA in the Lawsuits, as well as the claims that

22

remain pending, involve Licensed Indicia (but are not limited to Licensed Indicia), and relate to

23

EA’s right to use Licensed Indicia in accordance with the terms of the EA-CLC License

24

Agreements, as the term “Licensed Indicia” is defined in the EA-CLC License Agreements;

25
26

WHEREAS, EA denies the allegations in the Lawsuits, denies that it has engaged in any
wrongdoing, denies that Class Members have been harmed in any way, denies that Class Members

27
28
5

1

are entitled to any relief, and denies that California, Indiana, or New Jersey law applies to Class

2

Members who reside outside of those respective states;

3

WHEREAS, the Parties engaged the services of mediator Randall W. Wulff to assist in

4

their negotiations, attended a full-day mediation with Mr. Wulff, and engaged in subsequent

5

communications with Mr. Wulff before agreeing to the terms of this arm’s-length settlement;

6

WHEREAS, Plaintiffs and their counsel believe that the settlement provides a favorable

7

recovery for the Settlement Class, based on the claims asserted, the evidence developed, and the

8

damages that might be proven against EA and CLC in the Lawsuits. Plaintiffs and their counsel

9

further recognize and acknowledge the expense and length of continued proceedings necessary to

10

prosecute the Lawsuits against EA and CLC through trial and appeals. They have also considered

11

the uncertain outcome and the risk of any litigation, especially in complex litigation such as this

12

Lawsuit, as well as the difficulties and delays inherent in any such litigation. They are also mindful

13

of the inherent challenges of proof and the strength of the defenses to the alleged claims, and

14

therefore believe that it is desirable that the Released Claims be fully and finally compromised,

15

settled, and resolved with prejudice and enjoined as set forth herein;

16

WHEREAS, after a thorough review of the discovery record amassed in this litigation, the

17

Antitrust Plaintiffs have concluded that (1) neither EA nor CLC has had any role with respect to

18

the preparation or adoption of NCAA legislation, including the NCAA constitution, rules, bylaws,

19

and regulations that are the focus of the anticompetitive restraint alleged; (2) neither EA nor CLC

20

has had any role with respect to the form releases signed by student-athletes in order to be eligible

21

to participate in intercollegiate athletics; and (3) neither EA nor CLC has had any role in the

22

enforcement of the NCAA constitution or any NCAA rules, bylaws, or regulations;

23

WHEREAS, Plaintiffs and their counsel have examined the benefits to be obtained under

24

the terms of this Settlement Agreement, have considered the risks associated with the continued

25

prosecution of the Lawsuits and the likelihood of success on the merits of the Lawsuits, and believe

26

that, after considering all of the circumstances, the proposed settlement set forth in this Settlement

27
28
6

1

Agreement is fair, reasonable, adequate, in the best interests of the Plaintiffs and the Settlement

2

Class, and confers substantial benefits upon the Settlement Class;

3

WHEREAS, EA denies that it has committed any act or omission giving rise to any liability

4

and/or violation of law, and state that it is entering into this Settlement Agreement solely to

5

eliminate the uncertainties, burden, and expense of further protracted litigation;

6

WHEREAS, the Parties further agree that the Settlement Agreement, the fact of this

7

Settlement, any of the terms in the Settlement Agreement, and any documents filed in support of

8

the settlement shall not constitute an admission or finding of (i) wrongdoing, (ii) violation of any

9

statute or law, or (iii) liability on the claims or allegations in the Lawsuits on the part of any

10

Releasees, and shall not be used for any purpose whatsoever in any legal proceeding, including but

11

not limited to arbitrations, other than a proceeding to enforce the terms of the Settlement

12

Agreement;

13

WHEREAS, the Parties agree and understand that neither this settlement nor this

14

Settlement Agreement shall be construed as, or be admissible as, an admission by EA or CLC that

15

the Plaintiffs’ claims or any similar claims are suitable for class treatment;

16

WHEREAS, the Parties agree that no party will use this settlement nor this Settlement

17

Agreement in any legal proceeding for any purpose whatsoever other than to effectuate the

18

proposed settlement; and

19

WHEREAS, the Parties desire to compromise and settle all issues and claims that have

20

been brought or could have been brought against EA and CLC in the Lawsuits, but nothing in this

21

Agreement shall be construed as waiving, compromising, or extinguishing any issues or claims that

22

have been brought or could have been brought against the NCAA in the Lawsuits.

23

NOW, THEREFORE, IT IS HEREBY STIPULATED, CONSENTED TO AND

24

AGREED, by Plaintiffs, for themselves and on behalf of the Settlement Class, and EA that, subject

25

to the approval of the Court, the Lawsuits shall be settled, compromised, and dismissed, on the

26

merits and with prejudice, and the Released Claims shall be finally and fully compromised, settled,

27
28
7

1

and dismissed as to the Released Parties, in the manner and upon the terms and conditions hereafter

2

set forth:

3

III.

4
5

DEFINITIONS

The following terms, used in this Settlement Agreement, shall have the meanings specified
below:
1.

“Antitrust Class Period” means the period of July 21, 2005 through the Preliminary
Approval Date.

2.

“Antitrust Plaintiffs” means Edward C. O’Bannon Jr., Oscar Robertson, William
Russell, Harry Flournoy, Alex Gilbert, Sam Jacobson, Thad Jaracz, David Lattin,
Patrick Maynor, Tyrone Prothro, Damien Rhodes, Eric Riley, Bob Tallent, Danny
Wimprine, Ray Ellis, Tate George, Jake Fischer, Jake Smith, Darius Robinson,
Moses Alipate and Chase Garnham.

11

3.

“Antitrust Class” means the Antitrust Class Members.

12

4.

“Antitrust Class Members” means all current and former student-athletes residing in
the United States who 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 allegedly
have been included or could have been included (by virtue of their appearance in a
team roster) in or used in connection with NCAA Branded Videogames published or
distributed from July 21, 2005 until the Preliminary Approval Date. Antitrust Class
Members excludes EA, CLC, the NCAA, and their officers, directors, legal
representatives, heirs, successors, and wholly or partly owned subsidiaries or
affiliated companies, class counsel and their employees, and the judicial officers,
and associated court staff assigned to cases listed in Section I. Within the Antitrust
Class Members is a subclass consisting of the “Antitrust Roster-Only Class
Members”, which consist of all current and former student-athletes residing in the
United States who 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 allegedly
could have been included (by virtue of their appearance in a team roster), but were
not included in or used in connection with NCAA Branded Videogames published
or distributed from July 21, 2005 until the Preliminary Approval Date.

5.

“Authorized Claimant” means any member of the Settlement Class who submits a
Claim that is permitted pursuant to the terms of this Settlement Agreement.

6.

“Bar Date” is the final date by which a Claim Form must be received by the Notice
and Claims Administrator in order for a Settlement Class Member to be entitled to
any of the settlement consideration set forth in this Settlement Agreement. The Bar

6
7
8
9
10

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

8

Date shall be specifically identified and set forth in the Preliminary Approval Order
and the Class Notice.

1
2

7.

“Claim” means the submission to be made by Settlement Class Members, on the
Claim Form.

8.

“Claim Form” means the claim form substantially in the form attached hereto as
Exhibit D.

9.

“Class Counsel” means the law firms of Hagens Berman Sobol Shapiro LLP, The
McKenna Law Firm LLC, Lum, Drasco & Positan LLC, and Hausfeld LLP.

10.

“Class Member” means the Antitrust Class Members, the Hart/Alston Right of
Publicity Class Members and the Keller Right of Publicity Class Members.

11.

“Class Notice” means the notice of settlement to be provided to Class Members
pursuant to Federal Rule of Civil Procedure 23, the Preliminary Approval Order,
and this Settlement Agreement.

11

12.

“CLC” means the Collegiate Licensing Company.

12

13.

“Court” means the United States District Court for the Northern District of
California.

14.

“District Court Approval Order” means the final Judgment and order entered by the
Court finally approving the Settlement and this Settlement Agreement in all respects
pursuant to Paragraph 8 below of this Settlement Agreement.

16

15.

“EA” means Electronic Arts Inc.

17

16.

“Effective Date” means seven (7) business days following the date after which both
of the following events have occurred: (a) the District Court Approval Order has
been entered (“District Court Approval Date”) and (b) the time for any appeal from
the District Court Approval Order has expired, or, if appealed, the District Court
Approval Order has been affirmed in its entirety by the court of last resort to which
any such appeal has been taken and such affirmance is no longer subject to further
appeal or review.

17.

“Escrow Account” means the bank account maintained by the Escrow Agent into
which the Settlement Fund shall be deposited.

18.

“Escrow Agent” means the entity to be mutually agreed upon by Class Counsel to
maintain the bank account into which the Settlement Fund shall be deposited.

19.

“Exclusion/Objection Deadline” means the final date by which a Settlement Class
Member may either (a) object to any aspect of the Settlement (pursuant to the
Preliminary Approval Order and Paragraph 31 of this Settlement Agreement), or (b)
request to be excluded from the Settlement (pursuant to the Preliminary Approval
Order and Paragraph 32 of this Settlement Agreement). The Exclusion/Objection

3
4
5
6
7
8
9
10

13
14
15

18
19
20
21
22
23
24
25
26
27
28

9

Deadline shall be specifically identified and set forth in the Preliminary Approval
Order and the Class Notice.

1
2

20.

“Execution Date” means the latest date upon which this Settlement Agreement is
executed by any of the signatory counsel.

21.

“Fairness Hearing” means the hearing at or after which the Court will make a final
decision pursuant to Fed. R. Civ. P. 23 as to whether the Settlement is fair,
reasonable, and adequate and, therefore, approved by the Court.

22.

“Fee and Expense Award” means the attorneys’ fees and expenses as awarded by
the Court.

23.

“Hart/Alston Right of Publicity Class” means the Hart/Alston Right of Publicity
Class Members.

24.

“Hart/Alston Right of Publicity Class Members” means all NCAA football and
basketball players listed on the roster of a school whose team was included in an
NCAA Branded Videogame published or distributed during the Hart/Alston Right
of Publicity Class Period and whose assigned jersey number appears on a virtual
player in the software, or whose likeness was otherwise included in the software.
Excluded from the class are EA, CLC, the NCAA, and their officers, directors, legal
representatives, heirs, successors, and wholly or partly owned subsidiaries or
affiliated companies, class counsel and their employees, and the judicial officers,
and associated court staff assigned to cases listed in Section I.

25.

“Hart/Alston Right of Publicity Class Period” means the period May 4, 2003 to
May 4, 2007.

17

26.

“Hart/Alston Right of Publicity Plaintiffs” means Ryan Hart and Shawne Alston.

18

27.

“Judgment” means the judgment to be entered in the Lawsuits pursuant to paragraph
8 below of this Settlement Agreement.

28.

“Keller Right of Publicity Class” means the Keller Right of Publicity Class
Members.

29.

“Keller Right of Publicity Class Members” means all NCAA football and basketball
players listed on the roster of a school whose team was included in an NCAA
Branded Videogame published or distributed during the Keller Right of Publicity
Class Period and whose assigned jersey number appears on a virtual player in the
software, or whose photograph was otherwise included in the software. Excluded
from the class are EA, CLC, the NCAA, and their officers, directors, legal
representatives, heirs, successors, and wholly or partly owned subsidiaries or
affiliated companies, class counsel and their employees, and the judicial officers,
and associated court staff assigned to cases listed in Section I.

30.

“Keller Right of Publicity Class Period” means the period May 5, 2007 to the
Preliminary Approval Date.

3
4
5
6
7
8
9
10
11
12
13
14
15
16

19
20
21
22
23
24
25
26
27
28

10

1
2
3

31.

“Keller Right of Publicity Plaintiffs” means Samuel Michael Keller, Bryan
Cummings, Lamarr Watkins, and Byron Bishop.

32.

“Lawsuits” shall have the meaning described on pages 1-3, above.

33.

“NCAA Branded Videogame” means every edition of NCAA Football, NCAA
Basketball, and NCAA March Madness published or distributed by EA during the
Antitrust Class Period, the Hart/Alston Right of Publicity Class Period, or the Keller
Right of Publicity Class Period, and related products and services.

34.

“Net Settlement Fund” means the Settlement Fund less any taxes, attorneys’ fees,
participation awards, expert fees, costs, and expenses (including, but not limited to,
any cost and expenses paid out of the Notice and Administration Fund) approved by
the Court.

35.

“Notice and Administration Fund” means the fund consisting of up to $500,000
advanced by EA from the Settlement Amount to the Notice and Claims
Administrator to be used at the direction of Class Counsel to pay the costs of
notifying the Class Members, soliciting the filing of claims by Settlement Class
Members, assisting Settlement Class Members in making their claims, and
otherwise administering, on behalf of the Settlement Class Members, the Settlement
embodied in this Settlement Agreement. The monies in the Notice and
Administrative Fund are part of the Settlement Amount to be paid by EA. If for any
reason the Settlement does not become Final or the Effective Date does not occur,
the remaining money deposited into the Notice and Administration Fund shall be
returned to EA.

36.

“Notice and Claims Administrator” means shall an administrator that will be
selected by Class Counsel following a competitive bid process.

37.

“Parties” means: (i) the Antitrust Plaintiffs, (ii) the Keller Right of Publicity
Plaintiffs, (iii) the Alston/Hart Right of Publicity Plaintiffs, on behalf of themselves
and the Settlement Class (as defined in paragraph 47 below), and (iv) EA.

38.

“Person” means any individual, corporation, partnership, association, affiliate, joint
stock company, estate, trust, unincorporated association, entity, government and any
political subdivision thereof, or any other type of business or legal entity.

39.

“Plaintiffs” means Samuel Michael Keller, Bryan Cummings, Lamarr Watkins,
Byron Bishop, Edward C. O’Bannon Jr., Oscar Robertson, William Russell, Harry
Flournoy, Alex Gilbert, Sam Jacobson, Thad Jaracz, David Lattin, Patrick Maynor,
Tyrone Prothro, Damien Rhodes, Eric Riley, Bob Tallent, Danny Wimprine, Ray
Ellis, Tate George, Jake Fischer, Jake Smith, Darius Robinson, Moses Alipate,
Chase Garnham, Ryan Hart, and Shawne Alston.

40.

“Plan of Allocation” means the plan for allocating the Net Settlement Fund between
and among Settlement Class Members as approved by the Court.

4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

11

41.

“Preliminary Approval Order” means the Order that Plaintiffs and EA will seek
from the Court, substantially in the form of Exhibit A. Entry of the “Preliminary
Approval Order” shall constitute “Preliminary Approval” of the Settlement
Agreement.

42.

“Preliminary Approval Date” means the date that the Preliminary Approval Order is
entered.

43.

“Released Claims” means any and all actions, causes of action, claims, demands,
liabilities, obligations, damage claims, restitution claims, injunction claims,
declaratory relief claims, fees (including attorneys’ fees), costs, sanctions,
proceedings and/or rights of any nature and description whatsoever, whether legal or
equitable, including, without limitation, violations of any state or federal statutes
and laws, rules or regulations, or principles of common law, whether known or
unknown, suspected or unsuspected, had, possessed, owned or held, in law, equity,
arbitration or otherwise, that were or could have been asserted by Plaintiffs and/or
the Settlement Class Members against Releasees based on, arising out of, or related
to the subject matter of, or the allegations in the Lawsuits. Notwithstanding the
prior sentence, nothing in this paragraph or Agreement shall be construed as
releasing any action, cause of action, claim, demand, liability, obligation, damage
claim, restitution claim, injunction claim, declaratory relief claim, fees (including
attorneys’ fees), costs, sanctions, proceedings, and/or rights of any nature and
description whatsoever, whether legal or equitable, including, without limitation,
violations of any state or federal statutes and laws, rules, or regulations or principles
of common law, whether known or unknown, suspected or unsuspected, Plaintiffs
and/or the Settlement Class have, had, possessed, owned or held, in law, equity,
arbitration or otherwise against the NCAA.

44.

“Released Parties” or “Releasees” means EA and CLC and all of their present,
former, and future officers, directors, employees, agents, attorneys, insurers,
insurance agents and brokers, independent contractors, successors, assigns, parents,
subsidiaries, affiliates, shareholders, members, and any person or entity whose
conduct in the development, sale, distribution, or marketing of NCAA Branded
Videogames could cause EA or CLC to be held directly or indirectly liable
(including but not limited to liability as an indemnitor) to any such person or entity.
Notwithstanding the prior sentence, the NCAA, its present, former, and future
officers, directors, employees, agents (other than CLC), attorneys, insurers,
insurance agents and brokers, independent contractors, successors, assigns, parents,
subsidiaries, affiliates, and members, including schools and conferences, are not
Released Parties or Releasees.

45.

“Settlement” means the settlement of the Lawsuits between and among the
Plaintiffs, the Settlement Class Members, and Settling Defendant, as set forth in this
Settlement Agreement.

26

46.

“Settlement Amount” means Forty Million Dollars ($40,000,000.00).

27

47.

“Settlement Class” means the Settlement Class Members.

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

28
12

48.

“Settlement Class Member” shall mean any person in the Antitrust Class, Keller
Right of Publicity Class, and/or Hart/Alston Right of Publicity Class, provided
however that the term “Settlement Class Member” as used herein does not include
any such person who has timely excluded himself from the Settlement in accordance
with Paragraph 32 below and the Preliminary Approval Order.

49.

1

“Settlement Fund” means the Settlement Amount.

2
3
4
5

IV.

SUBMISSION OF THE SETTLEMENT AGREEMENT TO THE COURT FOR
APPROVAL

6
7

1.

Promptly upon execution of the Settlement Agreement, the Parties shall stipulate to

8

allow Plaintiffs to amend the Third Consolidated Amended Complaint to add a New Jersey right of

9

publicity and New Jersey unjust enrichment claim substantially in the form pled in the Hart/Alston

10
11

actions (Fourth Amended Complaint attached as Exhibit E).
2.

Promptly upon execution of this Settlement Agreement, the Parties shall submit to

12

the Court a motion for preliminary approval of the settlement and a motion by Class Counsel for

13

attorneys’ fees and costs to be paid from the Settlement Fund in the manner described below. The

14

motion for preliminary approval shall include a proposed plan for the sending of notice to Class

15

Members within sixty (60) days after an order of preliminary approval is entered, and establishing

16

a period of forty-five (45) days from the giving of such notice within which any Class Member

17

may: (a) request exclusion from this Settlement Agreement, (b) object to the Settlement

18

Agreement, or (c) object to Class Counsel’s request for fees and costs. The motions for

19

preliminary approval and for attorneys’ fees and costs shall also request that any hearing on final

20

approval of the settlement and any determination on the request for fees and costs be set for no

21

earlier than fifty-five (55) days from the final date for mailing requests for exclusion or serving

22

objections and that any reply briefs on such motions be filed fourteen (14) days prior to that

23

hearing. In compliance with the notification provision of the Class Action Fairness Act (28 U.S.C.

24

§ 1715), within ten (10) days after the motion for preliminary approval is filed, the Settling

25

Defendant shall cause notice of this proposed Settlement to be provided to the Attorney General of

26

the United States, and the attorneys general of each state or territory in which a Class Member

27

resides.

28
13

1

3.

The Parties hereby stipulate for purposes of this settlement only that the

2

requirements of Rules 23(a) and 23(b)(3) of the Federal Rules of Civil Procedure are satisfied, and,

3

subject to Court approval, the Settlement Class shall be certified for settlement purposes as to EA

4

and CLC. Each Party agrees that it will not use the foregoing stipulation for any purpose

5

whatsoever other than to effectuate the Settlement.

6
7
8
9

4.

The Parties and their counsel shall use their best efforts to obtain a District Court

Approval Order approving of the Settlement.
5.

The Parties have agreed upon the following documents to be submitted to the Court

for its consideration along with this Settlement Agreement: Preliminary Approval Order (Exhibit

10

A), Notice of Settlement of Class Action (Exhibit B), Summary Notice of Settlement of Class

11

Action (Exhibit C), and Claim Form (Exhibit D),and Fourth Consolidated Amended Complaint

12

(Exhibit E).

13

6.

In addition, the Parties have agreed to file Stipulations to Stay Proceedings and

14

Request for Voluntary Dismissal Pending Class Settlement Approval with the United States

15

District Court for the District of New Jersey in Alston and Hart (Exhibit F and G).

16

7.

The Parties shall jointly apply to the Court for entry of the Preliminary Approval

17

Order, substantially in the form attached hereto as Exhibit A, preliminarily approving the

18

Settlement, and barring prosecution of any action or claims that are subject to the release and

19

dismissal contemplated by this Settlement Agreement by any Settlement Class Member.

20

8.

At the Fairness Hearing, the Parties shall jointly request entry of a Judgment, the

21

entry of which is a material condition of this Settlement Agreement, barring and enjoining

22

Plaintiffs and all Settlement Class Members from instituting or prosecuting against the Releasees

23

any Released Claims, in this or any other action or proceeding, or from pursuing outside of these

24

Lawsuits any claim against the Releasees that arises from or relates to the facts alleged in the

25

Lawsuits, and further:

26
27

a.

approving finally the Settlement as fair, reasonable, and adequate, within the
meaning of Rule 23 of the Federal Rules of Civil Procedure, and directing its
consummation pursuant to the terms of the Settlement Agreement;

28
14

b.

barring, enjoining, and permanently restraining the NCAA and alleged coconspirators not named as defendants in the Lawsuits, including without
limitation NCAA member schools and conferences, (collectively, “NonSettling Parties”) from instituting, commencing, pursuing, prosecuting, or
asserting any claim against the Released Parties for contribution, indemnity
or any other claim in which the alleged injury to the Non-Settling Party is
the Non-Settling Party’s liability to Plaintiffs, or costs or fees in connection
with that asserted liability, arising out of or relating to the Released Claims.
Notwithstanding the previous sentence, the Parties do not request, that the
Court enter an order barring any Non-Settling Party from asserting
contractual indemnity claims to the extent that any may exist. Nothing in
this Paragraph shall be deemed to imply that any Non-Settling Party has a
right to contribution or indemnity against the Released Parties;

d.

directing that the claims of the Settlement Class Members be dismissed with
prejudice (and without an award of costs to any party other than those
provided for in paragraph 18 of this Settlement Agreement), and releasing,
as against each of the Released Parties, the Released Claims;

e.

permanently barring and enjoining the institution and prosecution, by
Plaintiffs and Settlement Class Members, of any other action against the
Releasees in any court asserting any Released Claims;

f.

dismissing EA and CLC from the Lawsuits pending in the Northern District
of California on the merits and with prejudice and barring, as against EA and
the other Released Parties, the Released Claims by the Plaintiffs and all
Settlement Class Members;

g.

reserving jurisdiction over the Lawsuits, to the extent permitted by law,
including all further proceedings concerning the administration,
consummation, and enforcement of this Settlement Agreement;

h.

permanently barring, enjoining, and finally discharging all claims as
provided for in this Settlement Agreement; and

i.

2

finding the settlement is in good faith pursuant to California Code of Civil
Procedure 877.6;

c.

1

containing such other and further provisions consistent with the terms of this
Settlement Agreement to which the Parties expressly consent in writing.

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24

9.

At the Fairness Hearing and as a part of the final approval of this Settlement, Class

25

Counsel will also request approval of the Plan of Allocation set forth in paragraph 19, below, of

26

this Settlement Agreement. Any modification to the Plan of Allocation by the Court shall not (i)

27

affect the enforceability of the Settlement Agreement, (ii) provide any of the Parties with the right

28
15

1

to terminate the Settlement Agreement, or (iii) impose any obligation on Settling Defendant to

2

increase the consideration paid in connection with the Settlement.

3

10.

At the Fairness Hearing, Class Counsel may also request entry of an Order

4

approving Class Counsel’s application for an award of attorneys’ fees and expenses. Any award of

5

attorneys’ fees and expenses to Class Counsel shall be paid exclusively from the Settlement Fund

6

and shall be payable seven days after the Effective Date. In no event shall EA otherwise be

7

obligated to pay for any attorneys’ fees and expenses. The disposition of Class Counsel’s

8

application for an award of attorneys’ fees and reimbursement of expenses is within the sound

9

discretion of the Court and is not a material term of this Settlement Agreement, and it is not a

10

condition of this Settlement Agreement that such application be granted. Any disapproval or

11

modification of the application for an award of attorneys’ fees and reimbursement of expenses by

12

the Court shall not (i) affect the enforceability of the Settlement Agreement, (ii) provide any of the

13

Parties with the right to terminate the Settlement Agreement, or (iii) impose any obligation on

14

Settling Defendant to increase the consideration paid in connection with the Settlement.

15

V.

SETTLEMENT CONSIDERATION

16
17

11.

The total monetary component of the Settlement is the Settlement Amount

18

($40,000,000.00). This is an “all in” number which includes, without limitation, all monetary

19

benefits to the Settlement Class, participation awards for Plaintiffs, attorneys’ fees, and all costs

20

and expenses (including, but not limited to, administration costs and expenses, notice costs and

21

expenses, and settlement costs and expenses). Under no circumstances will EA be required to pay

22

anything more than the Settlement Amount. As of the Effective Date, EA shall not have any right

23

to the return or reversion of the Settlement Fund, or any portion thereof, irrespective of the number

24

of Claims filed or the amounts to be paid to Authorized Claimants from the Settlement Fund.

25

12.

In full and complete settlement of: (i) all claims asserted in the Lawsuits against EA

26

and CLC and (ii) all other Released Claims, EA shall pay into the Escrow Account, for the benefit

27

of the Settlement Class as follows: (1) within thirty (30) days of entry of the Preliminary Approval

28

Order, EA shall pay into the Escrow Account $500,000 to be used by the Notice and Claims
16

1

Administrator at the direction of Class Counsel for reasonable costs in connection with providing

2

notice of the Settlement to the Class Members and for other administrative expenses (“Notice and

3

Administration Fund”), according to the terms in paragraphs 20-23, below; and (2) within twenty

4

(20) days of the District Court Approval Order, EA shall pay into the Escrow Account the

5

remaining amount of the Settlement Amount ($39,500,000).

6

13.

The Settlement Fund shall be deposited, at the times specified in paragraph 12, into

7

an interest-earning escrow account designated by Class Counsel, and all interest accruing thereon

8

shall be deemed to be in the custody of the Court, and will remain subject to the jurisdiction of the

9

Court, until such time as it is distributed in compliance with the Settlement Agreement and Court

10

order. The Escrow Agent shall invest the Settlement Fund exclusively in instruments backed by the

11

full faith and credit of the United States Government or fully insured by the United States

12

Government or an agency thereof, including a U.S. Treasury Money Market Fund or a bank

13

account insured by the Federal Deposit Insurance Corporation (“FDIC”) up to the guaranteed FDIC

14

limit. The Escrow Agent shall reinvest the proceeds of these instruments as they mature in similar

15

instruments at their then-current market rates. The Parties and the Escrow Agent agree to treat the

16

Settlement Fund as a “qualified settlement fund” within the meaning of Treasury Regulation §

17

1.468B-1, and the Escrow Agent, as administrator of the Escrow Account within the meaning of

18

Treasury Regulation § 1.468B-2(k)(3), shall be responsible for filing tax returns for the Escrow

19

Account and paying from the Escrow Account any and all taxes, including any interest or penalties

20

thereon (the “Taxes”), owed with respect to the Escrow Account. In addition, the Escrow Agent

21

shall timely make such elections as necessary or advisable to carry out the provisions of this

22

paragraph, including if necessary the “relation-back election” (as defined in Treas. Reg. § 1.468B-

23

1) back to the earliest permitted date. Such elections shall be made in compliance with the

24

procedures and requirements contained in such regulations. It shall be the responsibility of the

25

Escrow Agent to timely and properly prepare and deliver the necessary documentation for

26

signature by all necessary parties, and thereafter to cause the appropriate filing to occur.

27
28
17

1

14.

All Taxes arising with respect to the income earned by the Settlement Fund,

2

(including any Taxes that may be imposed upon Defendants with respect to any income earned by

3

the Settlement Fund for any period during which the Settlement Fund does not qualify as a

4

“qualified settlement fund” for federal or state income tax purposes), and any expenses and costs

5

incurred in connection with the payment of Taxes pursuant to this paragraph (including without

6

limitation, expenses of tax attorneys and/or accountants and mailing, administration, and

7

distribution costs and expenses relating to the filing or the failure to file all necessary or advisable

8

tax returns (the “Tax Expenses”)), shall be paid out of the Settlement Fund. EA shall not have any

9

liability or responsibility for the Taxes or the Tax Expenses. The Escrow Agent shall timely and

10

properly file all informational and other tax returns necessary or advisable with respect to the

11

Settlement Fund and the distributions and payments therefrom, including, without limitation, the

12

tax returns described in Treas. Reg. §1.468B-2(k), and to the extent applicable, Treas. Reg. §

13

1.468B-2(1). Such tax returns shall be consistent with the terms herein, and in all events shall

14

reflect that all Taxes on the income earned by the Settlement Fund shall be paid out of the

15

Settlement Fund. The Escrow Agent shall also timely pay Taxes and Tax Expenses out of the

16

Settlement Fund, and are authorized to withdraw from the Escrow Account amounts necessary to

17

pay Taxes and Tax Expenses. The Parties hereto agree to cooperate with the Escrow Agent, each

18

other, and their tax attorneys and accountants to the extent reasonably necessary to carry out the

19

provisions of this Settlement Agreement. The Parties shall not have any responsibility or liability

20

for the acts or omissions of the Escrow Agent.

21

15.

Upon entry of Judgment, EA will withdraw its Petition for Certiorari with the

22

Supreme Court in the case captioned Electronic Arts v. Keller, No. 13-377 and Electronic Arts v.

23

Hart, No. 13-376.

24

16.

Upon entry of Judgment, EA and Plaintiffs Alston and Hart shall stipulate to the

25

dismissal with prejudice of Alston v. Electronic Arts, No. CV-05157 and Hart v. Electronic Arts,

26

No. CV-05990, all parties to bear their own costs and fees except as set forth in this Agreement.

27
28
18

1

17.

EA agrees not to oppose a request for a participation award for Plaintiffs as awarded

2

by the Court, up to a maximum of $15,000. Plaintiffs and Class Counsel agree not to seek a

3

participation award in excess of the above amounts. Plaintiffs and Class Counsel agree to seek an

4

award of $15,000 for Samuel Michael Keller, Edward C. O’Bannon, and Ryan Hart; $5,000 for the

5

remaining Plaintiffs who were deposed and Plaintiff Shawne Alston; and $2,500 for all other

6

named Plaintiffs. The participation awards will be payable from the Settlement Fund contained in

7

the Escrow Account 30 days after the Effective Date.

8

18.

Class Counsel agrees not to seek an award of fees from the Court in excess of thirty-

9

three percent (33%) of the Settlement Fund and a maximum of $2,500,000 in costs (not including,

10

but in addition to, costs of administration). EA agrees not to oppose a request for attorneys’ fees up

11

to 33% of the Settlement Fund and such costs not exceeding $2,500,000. Any attorneys’ fees and

12

expenses, as awarded by the Court, shall be payable from the Settlement Fund contained in the

13

Escrow Account, as ordered, within seven (7) days after the Effective Date. In the event that the

14

Effective Date does not occur, or the Judgment is reversed or modified, or the order making the

15

Fee and Expense Award is reversed or modified, or the Settlement Agreement is canceled or

16

terminated for any other reason, and in the event that the Fee and Expense Award has been paid to

17

any extent, then Class Counsel shall within ten (10) business days from receiving notice from EA’s

18

counsel or from a court of appropriate jurisdiction, refund to EA the Fee and Expense Award or

19

any portion thereof previously paid to them plus interest thereon at the same rate as earned by the

20

account into which the balance of the Settlement Fund is deposited pursuant to paragraphs 13-14

21

above.

22
23

19.

Plaintiffs and Class Counsel have determined that the Net Settlement Fund shall be

allocated to benefit Settlement Class Members per the following Plan of Allocation:

24
25
26
27
28

a.

Antitrust Roster-Only Subclass Members: $5,000,000 of the Settlement
Fund.
The Parties will attempt in good faith to identify the Antitrust Roster-Only
Subclass Members and will deliver, by First-Class Mail, a payment equal to
a pro-rata share of $5,000,000 of the Settlement Fund to each Antitrust
Roster-Only Subclass Member who submits a valid Claim Form no later
19

than the Bar Date and is a Settlement Class Member. After the time period
described in Paragraph 19(d), the Claims Administrator will deliver by FirstClass Mail a second payment equal to a pro-rata share of the remaining
portion of the Net Settlement Fund attributable to the Antitrust Roster-Only
Subclass to those Antitrust Roster-Only Subclass Members who cashed their
check from the first distribution.

1
2
3
4

b.

5

The Parties will attempt in good faith to identify the Hart/Alston Right of
Publicity Class Members and will deliver, by First-Class Mail, a payment
equal to a pro rata share of $4,000,000 of the Settlement Fund to each
Hart/Alston Right of Publicity Class Member who submits a valid Claim
Form no later than the Bar Date and is a Settlement Class Member. After
the time period described in Paragraph 19(d), the Claims Administrator will
deliver by First-Class Mail a second payment equal to a pro-rata share of the
remaining portion of the Net Settlement Fund attributable to the Hart/Alston
Right of Publicity Class to Hart/Alston Right of Publicity Class Members
who cashed their check from the first distribution.

6
7
8
9
10
11

c.

12
13

15
16
17
18
19

d.

Settlement Class Members will have ninety (90) days to cash their
settlement checks from the date the checks are mailed by the Claims
Administrator. All outstanding, un-cashed checks will become void after
ninety (90) days and the associated funds will revert to the Net Settlement
Fund. If after three months beyond the second mailing of checks described
in paragraphs 19 (a)–(c), the Net Settlement Fund is not exhausted
(including any amount remaining as the result of uncashed checks), a prorata payment shall be made to each state under its escheat statute in an
amount that will exhaust the Net Settlement Fund. Under no circumstances
shall any money escheat to EA.

e.

All costs, including but not limited to costs associated with notice and
administration, participation awards, escrow costs, and attorneys’ fees and
costs shall be paid by Settlement Class Members equally on a pro rata basis
based on the amounts attributable to each subclass. By way of example, the
Hart/Alston Right of Publicity Class is allocated 10% of the Settlement Fund
and therefore is responsible for 10% of all costs.

21
22
23
24
25
26
27
28

Antitrust Class Members other than Antitrust Roster-Only Subclass
Members and Keller Right of Publicity Class Members: The remainder of
the Settlement Fund.
The Parties will attempt in good faith to identify Antitrust Class Members
(other than Antitrust Roster-Only Subclass Members) and Keller Right of
Publicity Class Members and will deliver by First-Class Mail, a cash
payment equal to a pro-rata share of the remaining Settlement Fund to each
such individual who submits a valid Claim Form no later than the Bar Date
and is a Settlement Class Member. After the time period described in
Paragraph 19(d), the Claims Administrator will deliver by First-Class Mail a
second cash payment equal to a pro-rata share of the remaining Net
Settlement Fund to each Antitrust Class Member other than Antitrust RosterOnly Subclass Members, Keller Right of Publicity Class Member, and Hart
Right of Publicity Class Member who cashed their check from the first
distribution.

14

20

Hart/Alston Right of Publicity Class Members: $4,000,000 of the
Settlement Fund.

20

VI.

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

20.

NOTICE AND ADMINISTRATION FUND

The Notice and Administration Fund shall be used by Class Counsel to pay the costs

of identifying and notifying Class Members, and, as allowed by the Court, soliciting the filing of
claims, facilitating the claims process, and otherwise administering the Settlement on behalf of the
Settlement Class Members. Any notice and administration costs, as well as all applicable taxes,
shall be paid out of the Notice and Administration Fund and, if the Notice and Administration Fund
is exhausted, out of the Settlement Fund. Notice and administration costs shall include, among
other things, identifying the last known mailing address Class Members, the cost of publishing
notice, printing and mailing notice, as directed by the Court, and the cost of processing Claims and
distributing the Net Settlement Fund to Settlement Class Members.
21.

Class Counsel, by and through the Notice and Claims Administrator, will attempt in

good faith to identify Class Members last known address and will provide Class Notice by (i) FirstClass Mail (where available) notice substantially similar to the form attached as Exhibit B; (ii) a
content neutral settlement website managed by a third-party administrator that will contain further
information about the Settlement and claims process, including relevant pleadings; and (iii)
nationwide publication on the internet through directed advertising to likely Class Members.
Settling Defendant will also provide notice by mail, pursuant to the Class Action Fairness Act, to
state attorneys general and the U.S. Attorney General.
22.

As of the Effective Date, any balance, including interest, remaining in the Notice

and Administration Fund, less expenses incurred but not yet paid, shall be deposited into the
Settlement Fund.
23.

If the Settlement is not approved, is overturned, or is modified on appeal or as a

result of further proceedings on remand of any appeal with respect to the Settlement, or if the
Effective Date otherwise does not occur, the balance of the Notice and Administration Fund which
has not been expended pursuant to paragraph 20 above, and the balance of the Settlement Fund,
including all earned or accrued interest, shall be returned to EA within five days, or as soon as
practicable, as set forth in paragraph 43 below.

28
21

VIII. RELEASES

1
2

24.

The Released Claims against each and all of the Released Parties shall be released

3

and dismissed with prejudice and on the merits (without an award of costs to any party other than

4

those provided in paragraph 18 of this Settlement Agreement) upon entry of the Judgment.

5

25.

As of the Effective Date, Plaintiffs and all Settlement Class Members agree to

6

release and by operation of the Judgment shall have fully and finally released, relinquished, and

7

discharged all Released Claims against each and all of the Released Parties.

8
9
10
11

26.

As of the Effective Date, Named Plaintiffs and all Settlement Class Members shall

be permanently barred and enjoined from initiating, asserting, or prosecuting against the Released
Parties in any federal or state court or tribunal any and all Released Claims.
27.

Without in any way limiting the scope of the Released Claims, the release covers,

12

without limitation, any and all claims for attorneys’ fees, costs, or disbursements incurred by Class

13

Counsel or any other counsel representing Plaintiffs or Settlement Class Members, or any of them,

14

in connection with or related in any manner to the Lawsuits, the settlement of the Lawsuits, the

15

administration of such settlement, and/or the Released Claims.

16

28.

The Plaintiffs and the Settlement Class expressly acknowledge that they are familiar

17

with principles of law such as Section 1542 of the Civil Code of the State of California and Section

18

20-7-11 of the South Dakota Codified Laws, which provide:

19
20
21
22
23
24
25
26
27

A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER
FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN
BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER
SETTLEMENT WITH THE DEBTOR.
29.

Plaintiffs and the Settlement Class hereby expressly agree that the provisions, rights,

and benefits of Section 1542 of the Civil Code of the State of California and Section 20-7-11 of the
South Dakota Codified Laws and all similar federal or state laws, rights, rules, or legal principles
of any other jurisdiction that may be applicable herein are hereby knowingly and voluntarily
waived and relinquished by Plaintiffs and the Settlement Class to the fullest extent permitted by
law in connection with all unknown claims constituting Released Claims, and Plaintiffs and the

28
22

1

Settlement Class hereby agree and acknowledge that this is an essential term of the Settlement

2

Agreement. In connection with the release, the Plaintiffs and the Settlement Class acknowledge

3

that they are aware that they may hereafter discover claims presently unknown and unsuspected or

4

facts in addition to or different from those which they now know or believe to be true with respect

5

to matters released herein. Nevertheless, it is the intention of Plaintiffs and the Settlement Class in

6

executing this release fully, finally, and forever to settle and release all matters and all claims that

7

exist, hereafter may exist, or might have existed (whether or not previously or currently asserted in

8

any action), constituting Released Claims.

9

30.

Subject to Court approval, all Settlement Class Members shall be bound by this

10

Settlement Agreement, and all of their claims shall be dismissed with prejudice and released, even

11

if they never received actual notice of the Lawsuits or this Settlement.

12

IX.

ADMINISTRATION AND DISTRIBUTION OF THE SETTLEMENT FUND

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

31.

Class Members who wish to object to any aspect of the Settlement must file with the

Court a written statement containing their objection by the Exclusion/Objection Deadline, as
provided in the Class Notice. Any Class Member who does not make his or her objection in the
manner provided in the Class Notice shall be deemed to have waived such objection and shall
forever be foreclosed from making any objection to the fairness or adequacy of the Settlement as
set forth in this Settlement Agreement, to the Plan of Allocation, and/or to the award of attorney’s
fees and expenses to Class Counsel.
32.

Class Members who wish to exclude themselves from the Settlement must serve on

the Notice and Claims Administrator a written request for exclusion by the Exclusion/Objection
Deadline, as provided in the Class Notice. Class Counsel shall submit the name, city, and state of
residence of all Class Members who request exclusion to the Court at the time Class Counsel file
their motion for final approval of the Settlement. All Class Members will be bound by the
Judgment dismissing the Lawsuits with prejudice unless such Class Members timely file valid
written request for exclusion or opt out in accordance with this paragraph and the Preliminary
Approval Order.
23

1

33.

Class Members may object to or opt out of the Settlement, but may not do both.

2

Any Class Member who submits a timely request for exclusion or opt out may not file an objection

3

to the Settlement and shall be deemed to have waived any rights or benefits under the Settlement

4

Agreement.

5

34.

No later than five business days after the Exclusion/Objection Deadline, the Notice

6

and Claims Administrator shall provide to Class Counsel and counsel for EA a complete opt out

7

list together with copies of the opt out requests. Notwithstanding any other provision of this

8

Settlement Agreement, if more than

9

and exclusive option may elect to rescind and revoke the entire Settlement Agreement, thereby

opt out of the Settlement, EA at its sole

10

rendering the Settlement null and void in its entirety, by sending written notice that it revokes the

11

Settlement pursuant to this paragraph to Class Counsel within ten (10) business days following the

12

date the Notice and Claims Administrator informs EA of the number of Class Members who have

13

requested to opt out of the Settlement pursuant to the provisions set forth above.

14

35.

Class Counsel or their authorized agents, subject to the supervision, direction, and

15

approval of the Court, shall attempt in good faith to identify the last known address of Class

16

Members, and administer and identify Claims submitted by Settlement Class Members, and shall

17

calculate and oversee distribution of the Settlement Fund.

18
19
20

36.

The Notice and Administration Fund and the Settlement Fund shall be applied as

follows:
a.

to pay all costs and expenses incurred in connection with providing notice to
Class Members and, as allowed by the Court, locating Class Members’ last
known address, soliciting claims, assisting with the filing of claims,
administering and distributing the Settlement Fund to the Settlement Class,
processing proofs of claim, processing requests for exclusion, and escrow
fees and costs, in accordance with the terms provided for the Notice and
Administration Fund in paragraphs 20-23, above;

b.

subject to the approval and further order(s) of the Court, and according to the
terms provided in paragraph 17, above, to pay to the Named Plaintiffs a
participation award based on contributions and time expended assisting in
the litigation, up to a maximum of $15,000 for Samuel Michael Keller,
Edward C. O’Bannon, and Ryan Hart; $5,000 for the remaining Plaintiffs
who were deposed and Shawne Alston; and $2,500 for all other named

21
22
23
24
25
26
27
28

24

Plaintiffs, such payment not to be made until funds are distributed to the
Settlement Class pursuant to paragraph 36(e), below;

1
2

c.

subject to the approval and further order(s) of the Court, and according to the
terms of paragraph 18, above, to pay any attorneys fees and/or costs that
may be awarded or ordered by the Court;

d.

to pay Taxes and Tax Expenses owed by the Settlement Fund, according to
the terms in paragraph 14, above;

e.

to pay any costs and expenses incurred in connection with the services
provided by the Escrow Agent; and

f.

subject to the approval and further order(s) of the Court, to distribute the
balance of Net Settlement Fund for the benefit of the Settlement Class
pursuant to paragraph 19 above, or as otherwise ordered by the Court. No
funds from the Net Settlement Fund shall be disbursed until after the
Effective Date.

3
4
5
6
7
8
9
10
11

37.

Settlement Class Members shall be subject to and bound by the provisions of the

12

Settlement Agreement, the releases contained herein, and the Judgment with respect to all Released

13

Claims, regardless of whether they seek or obtain any distribution from the Settlement Fund.

14

38.

EA shall bear no responsibility for the costs, fees, or expenses related to the

15

administration and distribution of the Settlement Fund. Neither EA nor their counsel shall have

16

any responsibility for, interest in, or liability whatsoever with respect to the Settlement Fund, any

17

plan of allocation, the determination, administration, or calculation of claims, the payment or

18

withholding of taxes, the distribution of the Net Settlement Fund, or any losses incurred in

19

connection with any such matters.

20
21
22

39.

EA shall have no responsibility for, or liability concerning, the appointment of the

Notice and Claims Administrator and any actions taken by it.
40.

Payment from the Settlement Fund and Net Settlement Fund made pursuant to and

23

in the manner set forth above shall be deemed conclusive of compliance with this Settlement

24

Agreement as to all Settlement Class Members.

25
26

41.

No Class Member or Settlement Class Member shall have any claim against the

Plaintiffs, Class Counsel, the Notice and Claims Administrator, EA, CLC, or any of their counsel,

27
28
25

1

based on distributions made substantially in accordance with this Settlement Agreement and/or

2

orders of the Court.

3
4

IX.

EFFECT OF DISAPPROVAL, CANCELLATION, OR TERMINATION OF
SETTLEMENT AGREEMENT

5
6

42.

If the Court does not approve the Settlement as set forth in this Settlement

7

Agreement, or does not enter the Judgment substantially in the form provided for in paragraph 8, or

8

if the Court enters the Judgment and appellate review is sought, and on such review, the entry of

9

Judgment is vacated, modified in any way, or reversed, then this Settlement Agreement shall be

10

cancelled and terminated, unless all Parties who are adversely affected thereby, in their sole

11

discretion within thirty days from the date of such ruling, provide written notice to all other Parties

12

hereto of their intent to proceed with the settlement under the terms of the Judgment as it may be

13

modified by the Court or any appellate court. No Party shall have any obligation whatsoever to

14

proceed under any terms other than substantially in the form provided and agreed to herein, except

15

to the extent provided for in paragraphs 9 and 10, relating to the Plan of Allocation and award of

16

attorneys’ fees. If any Party hereto engages in a material breach of the terms hereof, any other

17

Party, provided that it is in substantial compliance with the terms of this Settlement Agreement,

18

may terminate this Settlement Agreement on notice to the breaching Party or sue for enforcement.

19

43.

In the event that (i) the Settlement is not approved, is overturned, or is materially

20

modified by the Court or on appeal, (ii) the Judgment does not become Final, or (iii) this

21

Settlement Agreement is terminated, cancelled, or fails to become effective for any reason, then

22

within five business days after written notice is sent by Class Counsel or counsel for Settling

23

Defendant to all Parties hereto, the balance of the Notice and Administration Fund, less any funds

24

paid or expenses incurred but not yet paid, the Settlement Fund, and any other cash deposited by

25

EA into the Escrow Account pursuant to paragraph 12 above of this Settlement Agreement, shall

26

be refunded to EA, including interest earned or accrued.

27
28

44.

In the event that (i) the Settlement is not approved, is overturned, or is materially

modified by the Court or on appeal, (ii) the Judgment does not become Final, or (iii) this
26

1

Settlement Agreement is terminated, cancelled, or fails to become effective for any reason, then (a)

2

the Settlement shall be without force and effect upon the rights of the Parties hereto, and none of its

3

terms shall be effective or enforceable, with the exception of this paragraph, which shall remain

4

effective and enforceable; and (b) the Parties shall be deemed to have reverted nunc pro tunc to

5

their respective status as of the date and time immediately before the execution of the Settlement

6

Agreement, and they shall proceed in all respects as if the Settlement Agreement and related

7

documentation and orders had not been executed, and without prejudice in any way from the

8

negotiation or fact of the Settlement or the terms of the Settlement Agreement. The Settlement

9

Agreement, the Settlement, the fact of their existence, any of their terms, any press release or other

10

statement or report by the Parties or by others concerning the Settlement Agreement, the

11

Settlement, their existence, or their terms, any negotiations, proceedings, acts performed, or

12

documents executed pursuant to or in furtherance of the Settlement Agreement or the Settlement

13

shall not be offered or received in evidence, or otherwise used by any party or witness for any

14

purpose whatsoever, in any trial of these Lawsuits or any other action or proceedings, nor shall

15

they be deemed to constitute any evidence or admission of liability or wrongdoing on the part of

16

Settling Defendant or the other Releasees, which is expressly and unequivocally denied by Settling

17

Defendant.

18

45.

EA does not agree or consent to certification of the Settlement Class (as to EA or

19

CLC) for any purpose other than to effectuate the Settlement of the Lawsuits. If this Settlement

20

Agreement is terminated pursuant to its terms, or the Effective Date for any reason does not occur,

21

the order certifying the Settlement Class for purposes of effecting this Settlement Agreement, and

22

all preliminary and/or final findings regarding the Settlement Class certification order, shall be

23

automatically vacated upon notice to the Court, the Lawsuits shall proceed as though the

24

Settlement Class had never been certified pursuant to this Settlement Agreement and such findings

25

had never been made, and the Lawsuits shall revert nunc pro tunc to the procedural status quo as of

26

the date and time immediately before the execution of the Settlement Agreement, in accordance

27

with this Settlement Agreement.

28
27

1

IX.

2
3
4
5

46.

MISCELLANEOUS PROVISIONS

All of the Exhibits to be attached hereto shall be incorporated by reference as

though fully set forth herein.
47.

Plaintiffs acknowledge that Class Members’ claims against EA in the Lawsuits, as

6

well as the claims that remain pending, involve Licensed Indicia (but are not limited to Licensed

7

Indicia), and relate to EA’s right to use Licensed Indicia in accordance with the terms of the EA-

8

CLC License Agreements, as the term “Licensed Indicia” is defined in the EA-CLC License

9

Agreements. Notwithstanding any other provision to the contrary, EA may use the

10
11

acknowledgement in this paragraph in other legal proceedings.
48.

Antitrust Plaintiffs acknowledge that, after a thorough review of the discovery

12

record amassed in this litigation, the Antitrust Plaintiffs have concluded that (1) neither EA nor

13

CLC has had any role with respect to the preparation or adoption of NCAA legislation, including

14

the NCAA constitution, rules, bylaws, and regulations that are the focus of the anticompetitive

15

restraint alleged; (2) neither EA nor CLC has had any role with respect to the form releases signed

16

by student-athletes in order to be eligible to participate in intercollegiate athletics; and (3) neither

17

EA nor CLC has had any role in the enforcement of the NCAA constitution or any NCAA rules,

18

bylaws, or regulations. Notwithstanding any other provision to the contrary, EA may use the

19

acknowledgement in this paragraph in other legal proceedings.

20

49.

Class Counsel agrees that they will not directly or indirectly, explicitly or implicitly,

21

encourage any Class Member to object to or opt-out of the Settlement and/or file a separate lawsuit

22

against any of the Released Parties.

23

50.

Plaintiffs acknowledge that, given the amount of discovery taken by them of EA and

24

CLC, including extensive document and other written discovery, as well as numerous depositions,

25

expert discovery, and the records developed through briefing and submissions of motion, Plaintiffs

26

are satisfied that an adequate factual record has been established that supports the Settlement and,

27

apart from the limited discovery described in the next sentence, hereby waive any right to conduct

28
28

1

further discovery to assess or confirm the Settlement. Notwithstanding the prior sentence, the

2

Parties agree to reasonably cooperate with respect to limited confirmatory discovery to be agreed

3

upon related to the rosters of student-athletes whose images Plaintiffs claim are included in NCAA

4

Branded Videogames. And notwithstanding this paragraph, the Keller Right of Publicity plaintiffs

5

shall have any and all discovery rights, subject to the Court’s orders and the Federal Rules of Civil

6

Procedure, as to EA and CLC in connection with their lawsuit against the NCAA.

7
8
9

51.

This Settlement Agreement may be amended or modified only by a written

instrument signed by counsel for all Parties or the Parties’ successors-in-interest.
52.

The Settlement Agreement, the Settlement, the fact of the settlement’s existence,

10

any of terms of the Settlement Agreement, any press release or other statement or report by the

11

Parties or by others concerning the Settlement Agreement or the Settlement, and/or any

12

negotiations, proceedings, acts performed, or documents executed pursuant to or in furtherance of

13

the Settlement Agreement or the Settlement: (i) may not be deemed to be, may not be used as, and

14

do not constitute an admission or evidence of the validity of any Released Claims or of any

15

wrongdoing or liability of EA or CLC; and (ii) may not be deemed to be, may not be used as, and

16

do not constitute an admission or evidence of any fault, wrongdoing, or omission by EA or CLC in

17

any trial, civil, criminal, or administrative proceeding of the Lawsuits or any other action or

18

proceedings in any court, administrative agency, or other tribunal.

19

53.

EA and the other Releasees shall have the right to file the Settlement Agreement

20

and/or the Judgment in any action that may be brought against them in order to support a defense

21

or counterclaim based on principles of res judicata, collateral estoppel, release, good faith

22

settlement, judgment bar, reduction, or any other theory of claim preclusion or issue preclusion or

23

similar defense or counterclaim.

24

54.

The Parties intend the Settlement to be a final and complete resolution of all

25

disputes asserted or which could be asserted by Plaintiffs and the Settlement Class in the Lawsuits

26

against EA and CLC.

27
28
29

1

55.

The Parties to the Settlement Agreement agree that the Settlement Amount and the

2

other terms of the Settlement were negotiated at arm’s length and in good faith by the Parties,

3

resulted from an arm’s length mediation before Randy Wulff, and reflect a settlement that was

4

reached voluntarily based upon adequate information and sufficient discovery and after

5

consultation with experienced legal counsel.

6

56.

Plaintiffs and Class Counsel have concluded that the Settlement set forth herein

7

constitutes a fair, reasonable, and adequate resolution of the claims that Plaintiffs asserted against

8

EA and CLC, including the claims on behalf of the Settlement Class, and that it promotes the best

9

interests of the Settlement Class.

10

57.

To the extent permitted by law, all agreements made and orders entered during the

11

course of the Lawsuits relating to the confidentiality of information shall survive this Settlement

12

Agreement.

13

58.

The Parties agree that Plaintiffs are not required to return any documents produced

14

by Settling Defendant until the resolution of the Lawsuits, including the resolution of any and all

15

claims against the NCAA. Within sixty (60) days following resolution of the Lawsuits, Counsel

16

for Plaintiffs shall return to EA and CLC, respectively, all documents produced in the Lawsuits or

17

confirm in writing that all such documents have been destroyed, in a manner consistent with the

18

terms of any applicable Protective Order in any of the Lawsuits, and to the extent practicable.

19

59.

The waiver by one Party of any breach of this Settlement Agreement by any other

20

Party shall not be deemed a waiver of any other prior or subsequent breach of this Settlement

21

Agreement.

22

60.

This Settlement Agreement and its exhibits constitute the entire agreement among

23

the Parties, and no representations, warranties, or inducements have been made to any Party

24

concerning this Settlement Agreement or its exhibits, other than the representations, warranties and

25

covenants contained and memorialized in this Settlement Agreement and its exhibits. In the event

26

that there exists a conflict or inconsistency between the terms of this Settlement Agreement and the

27

terms of any exhibit to be attached hereto, the terms of this Settlement Agreement shall prevail.

28
30

1

61.

This Settlement Agreement may be executed in one or more counterparts. All

2

executed counterparts and each of them shall be deemed to be one and the same instrument

3

provided that counsel for the Parties to this Settlement Agreement shall exchange among

4

themselves original signed counterparts.

5
6
7
8
9

62.

The Parties hereto and their respective counsel agree that they will use their best

efforts to obtain all necessary approvals of the Court required by this Settlement Agreement.
63.

Each counsel signing this Settlement Agreement represents that such counsel has

authority to sign this Settlement Agreement on behalf of his/her clients.
64.

This Settlement Agreement shall be binding upon and shall inure to the benefit of

10

the successors and assigns of the Parties hereto, including any and all Released Parties and any

11

corporation, partnership, or other entity into or with which any Party hereto may merge,

12

consolidate, or reorganize.

13

65.

This Settlement Agreement shall not be construed more strictly against one Party

14

than another merely because of the fact that it may have been prepared by counsel for one of the

15

Parties, it being recognized that because of the arm’s-length negotiations resulting in the Settlement

16

Agreement, all Parties hereto have contributed substantially and materially to the preparation of the

17

Settlement Agreement.

18
19
20

66.

All terms, conditions, and exhibits are material and necessary to this Settlement

Agreement and have been relied upon by the Parties in entering into this Settlement Agreement.
67.

This Settlement Agreement shall be governed by federal law. To the extent that

21

federal law does not apply, this Settlement Agreement shall be governed by and construed in

22

accordance with the laws of the State of California, without regard to choice of law principles. Any

23

action based on this Settlement Agreement, or to enforce any of its terms, shall be venued in the

24

United States District Court for the Northern District of California, which shall retain jurisdiction

25

over all such disputes. All Parties to this Settlement Agreement shall be subject to the jurisdiction

26

of the United States District Court for the Northern District of California for all purposes related to

27

this Settlement Agreement. This paragraph relates solely to the law governing this Settlement

28
31

EXHIBIT A

1

UNITED STATES DISTRICT COURT

2

NORTHERN DISTRICT OF CALIFORNIA

3
4

SAMUAL KELLER et al.,

5
6
7
8
9

Case No. 09-cv-1967 CW

Plaintiffs,
v.
NATIONAL COLLEGIATE ATHLETIC
ASSOCIATION; COLLEGIATE
LICENSING COMPANY; and
ELECTRONIC ARTS INC.,

10

[PROPOSED] ORDER GRANTING
PRELIMINARY APPROVAL OF CLASS
ACTION SETTLEMENT WITH
DEFENDANT ELECTRONIC ARTS, INC.

Defendants.

11
12

EDWARD O’BANNON, et al.,

13
14

Case No. 09-cv-3329 CW

Plaintiffs,
v.

15
16
17
18

NATIONAL COLLEGIATE ATHLETIC
ASSOCIATION; COLLEGIATE
LICENSING COMPANY; and
ELECTRONIC ARTS INC.,
Defendants.

19
20
21
22
23
24
25
26
27
28

Upon considering the Motion for Preliminary Approval of Class Action Settlement with
Defendant Electronic Arts Inc., (“EA”) filed by Plaintiffs and, seeking preliminary approval of
the Settlement, together with all of its Exhibits attached thereto, dated May 15, 2014, as well as
the record of these proceedings, the representations, argument, and recommendation of counsel
for the moving parties, and the requirements of law, the Court finds that (1) this Court has
jurisdiction over the subject matter and parties to this proceeding; (2) the proposed Class meets
the requirements of Federal Rule of Civil Procedure 23(e) and should be certified for purposes of
settlement only, and the persons set forth below should be appointed Class Representative and
PRELIMINARY APPROVAL ORDER

1

Class Counsel; (3) the Proposed Settlement (“Settlement” or “Agreement”) is the result of arms-

2

length negotiations between the parties, is not the result of collusion, bears a probable, reasonable

3

relationship to the claims alleged by the Plaintiffs and the litigation risks of EA, and its terms put

4

it within the range of possible judicial approval; (4) the Settlement Notices substantially in the

5

form attached as Exhibits B and C to the Settlement and the proposed Notice Plan will provide

6

the best practicable notice to the putative Class under the circumstances and satisfy the

7

requirements of due process; (5) reasonable cause exists to conduct a hearing, pursuant to Federal

8

Rule of Civil Procedure 23(e), to consider whether the Settlement is fair, reasonable and adequate

9

and whether it should be approved; and (6) the other related matters pertinent to the preliminary

10

approval of the Settlement should also be approved.

11

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that:

12

1.

13
14
15

As used in this Preliminary Approval Order, capitalized terms shall have the

definitions and meanings accorded them in the Settlement.
2.

The Court has jurisdiction over the subject matter and parties to this proceeding

under 28 U.S.C. § 1332.

16

3.

Venue is proper in this district.

17

4.

The Court finds, for settlement only, that the Federal Rule of Civil Procedure 23

18

factors are present and that certification of the Settlement Class, as defined and set forth below, is

19

appropriate under Rule 23. The Court, therefore, certifies a Settlement Class comprising:

20

(a)

Antitrust Class Members: All current and former student-athletes residing

21

in the United States who competed on an NCAA Division I (formerly known as

22

“University Division” before 1973) college or university men’s basketball team or on an

23

NCAA Football Bowl Subdivision (formerly known as Division I-A until 2006) men’s

24

football team and whose images, likenesses and/or names allegedly have been included or

25

could have been included (by virtue of their appearance in a team roster) in or used in

26

connection with NCAA Branded Videogames published or distributed from July 21, 2005

27

until [INSERT DATE]. Excluded from the class are EA, CLC, the NCAA, and their

28
-2-

PRELIMINARY APPROVAL ORDER

1

officers, directors, legal representatives, heirs, successors, and wholly or partly owned

2

subsidiaries or affiliated companies, class counsel and their employees, and the judicial

3

offers, and associated court staff assigned to cases listed in paragraph I of the Settlement

4

Agreement.

5

(b)

Hart/Alston Right of Publicity Class Members: All NCAA football and

6

basketball players listed on the roster of a school whose team was included in an NCAA

7

Branded Videogame published or distributed during the period May 4, 2003 to May 4,

8

2007 and whose assigned jersey number appears on a virtual player in the software, or

9

whose likeness was otherwise included in the software. Excluded from the class are EA,

10

CLC, the NCAA, and their officers, directors, legal representatives, heirs, successors, and

11

wholly or partly owned subsidiaries or affiliated companies, class counsel and their

12

employees, and the judicial offers, and associated court staff assigned to cases listed in

13

paragraph I of the Settlement Agreement.

14

(c)

Keller Right of Publicity Class Members: All NCAA football and

15

basketball players listed on the roster of a school whose team was included in an NCAA

16

Branded Videogame published or distributed during the period May 5, 2007 to [INSERT

17

DATE] and whose assigned jersey number appears on a virtual player in the software, or

18

whose likeness was otherwise included in the software. Excluded from the class are EA,

19

CLC, the NCAA, and their officers, directors, legal representatives, heirs, successors, and

20

wholly or partly owned subsidiaries or affiliated companies, class counsel and their

21

employees, and the judicial offers, and associated court staff assigned to cases listed in

22

paragraph I of the Settlement Agreement.

23

5.

24
25
26

The Court finds for settlement only that the Settlement Class described above

satisfies the following factors of Federal Rule of Civil Procedure 23:
(a)

Numerosity: Class Counsel estimate that over 100,000 individuals have

potential claims. This satisfies the Rule 23(a)(1) numerosity requirement.

27
28
-3-

PRELIMINARY APPROVAL ORDER

1

(b)

Commonality: The threshold for commonality under Rule 23(a)(2) is not

2

high and a single common issue will suffice. Plaintiffs allege, among others, antitrust and

3

right of publicity claims related to the Defendants’ license, use, and/or sale of class

4

members’ name, image, and likeness rights without compensation. This issue is common

5

to the Settlement Class.

6
7

(c)

Class and satisfy Rule 23(a)(3).

8
9

Typicality: The Plaintiffs’ claims are typical of those of the Settlement

(d)

Adequacy: There are no disabling conflicts of interest between the

Plaintiffs and Settlement Class Members and the Plaintiffs have retained competent

10

counsel to represent the Settlement Class. Class Counsel regularly engage in complex

11

litigation similar to the present case and have dedicated substantial resources to the

12

prosecution of this matter. The adequacy requirement is satisfied.

13

(e)

There is predominance and superiority. The common legal and factual

14

issue listed is predominant of all claims. Resolution of the common question constitutes a

15

significant part of Plaintiffs’ and Settlement Class Members’ claims. Further, because the

16

Settlement Class is being certified for purposes of settlement only, the Court need not

17

consider factors that might render a class action unmanageable.

18

6.

The Court’s findings regarding the class certification requirements of Rule 23 are

19

subject to the Fairness Hearing and are done without prejudice to the facts, record, and argument

20

that will be before the Court in connection with any class proposed for litigation of any remaining

21

claims against any other party.

22

7.

The Court appoints the following people as Class Representatives for the

23

AntitrustClass: Edward C. O’Bannon Jr., Oscar Robertson, William Russell, Harry Flournoy,

24

Alex Gilbert, Sam Jacobson, Thad Jaracz, David Lattin, Patrick Maynor, Tyrone Prothro, Damien

25

Rhodes, Eric Riley, Bob Tallent, Danny Wimprine, Ray Ellis, Tate George, Jake Fischer, Jake

26

Smith, Darius Robinson, Moses Alipate, and Chase Garnham. The Court appoints the following

27

people as Class Representatives for the Keller Right of Publicity Class: Samuel Michael Keller,

28
-4-

PRELIMINARY APPROVAL ORDER

1

Bryan Cummings, Lamarr Watkins, and Byron Bishop. The Court appoints Ryan Hart and

2

Shawne Alston as Class Representatives for the Hart/Alston Right of Publicity Class.

3

8.

The Court appoints the following law firms as Class Counsel: Hausfeld LLP,

4

Hagens Berman Sobol Shapiro LLP, The McKenna Law Firm LLC, and Lum, Positan & Drasco

5

LLP.

6

9.

The Court preliminarily approves the Settlement, together with all of its Exhibits,

7

attached hereto as Exhibit A, as fair, reasonable and adequate, entered into in good faith, free of

8

collusion, and within the range of possible judicial approval.

9

10.

The Court approves the form and content of the Settlement Notices, substantially

10

in the form attached as Exhibits B and C to the Settlement. This Court finds that the Notice Plan,

11

described in the Memorandum of Points and Authorities in Support of Plaintiffs’ Motion for

12

Preliminary Approval of Class Action Settlement is the best practicable under the circumstances.

13

The Notice Plan is reasonably calculated to apprise the Settlement Class Members of class

14

certification, the Settlement, and Class Counsel’s application for fees and expenses. It constitutes

15

sufficient notice to all persons entitled to notice, and satisfies all requirements of law, including,

16

but not limited to, Rule 23 of the Federal Rules of Civil Procedure and the Constitutional

17

requirement of due process.

18

11.

The Court directs that ________ act as the Notice and Claims Administrator

19

(“Administrator”) and directs the Administrator to disseminate the Settlement Notices in the

20

following manner, which satisfies the requirements of Federal Rule of Civil Procedure 23 and due

21

process:

22

(a)

Within ___ days following entry of the Preliminary Approval Order, the

23

Administrator shall mail, or cause to be mailed, copies of the Notice of Settlement of

24

Class Action, by first class United States mail, postage prepaid, to all potential Settlement

25

Class Members at the most recent address obtained by the methods described in the

26

Notice Plan.

27
28
-5-

PRELIMINARY APPROVAL ORDER

1

(b)

Within ___ days following entry of the Preliminary Approval Order, the

2

Administrator shall cause to be published the Summary Notice of Settlement of Class

3

Action by the methods described in the Notice Plan.

4

(c)

The Administrator shall also create and manage a settlement website where

5

settlement-related documents, such as the Settlement, the Notice of Settlement of Class

6

Action, court-filed documents, and case updates and information shall be posted.

7

(d)

The Administrator shall also create and manage a toll free number with an

8

automated system providing information about the Settlement, with the ability to request

9

copies of the Settlement Notice or the Settlement, and to speak with live operators.

10
11
12

12.

___________ is directed to perform all other responsibilities under the Notice Plan

assigned to the Administrator.
13.

The Court directs that a hearing be scheduled for _________, 2014, at 2 o’clock

13

p.m. (the “Fairness Hearing”) to assist the Court in determining whether the Settlement is fair,

14

reasonable and adequate; whether Final Judgment should be entered dismissing with prejudice

15

Defendants Electronic Arts Inc. and Collegiate Licensing Company in the above-captioned action

16

and any other actions by Settlement Class Members pending before this Court; whether Class

17

Counsel’s application for fees and expenses should be approved; and whether Class Counsel’s

18

request for incentive payments to the Class Representatives should be approved.

19

14.

The Court further directs that any Settlement Class Member who wishes to object

20

to the Settlement may do so in writing. All written objections and supporting papers must: (a)

21

identify the case name and number (In re NCAA Student-Athlete Name and Likeness Licensing

22

Litigation, Case No. 09-CV-1967-CW); be submitted to the Court either by mailing them to the

23

Class Action Clerk, United States District Court for the Northern District of California, 1301 Clay

24

Street, Oakland, CA 94612, or by filing them in person at any location of the United States

25

District Court for the Northern District of California; and (c) be filed or postmarked on or before

26

__________. Before the Fairness Hearing, all objections will be scanned into the electronic case

27

docket and the parties will receive electronic notices of the filing.

28
-6-

PRELIMINARY APPROVAL ORDER

1

15.

The Court further directs that any Settlement Class Member may appear at the

2

Fairness Hearing, either in person or through personal counsel, retained at the Settlement Class

3

Member’s expense, to voice an objection to the Settlement or to Class Counsel’s application for

4

fees and expenses or request for incentive payments.

5

16.

The Court further directs that any person within the Settlement Class definition

6

who wishes to be excluded from the Settlement Class must mail a written Request for Exclusion

7

to the Administrator postmarked on or before the Opt Out Deadline. Any Request for Exclusion

8

must include the name of the person seeking exclusion and a statement that he requests exclusion

9

from the class and does not wish to participate in the Settlement.

10

17.

The cost of providing Notice, as provided for by this Order and the Settlement,

11

shall be paid from the Notice and Administration Fund and from the Settlement Fund if the cost

12

of providing Notice exceeds the amount in the Notice and Administration Fund.

13

18.

The Court further directs the Administrator to promptly provide unredacted copies

14

of any Requests for Exclusion, and any withdrawals thereof, to EA, CLC, and Class Counsel.

15

Prior to the Fairness Hearing, the Administrator will submit to the Court, under seal, a report

16

identifying all persons making Requests for Exclusion not thereafter timely withdrawn and the

17

date on which each request was postmarked (or if there is no legible postmark date, the date

18

received by the Administrator). A copy of the report will be provided to EA, CLC, and Class

19

Counsel, who will keep the report confidential.

20

19.

Neither the Settlement, nor any exhibit, document or instrument delivered

21

thereunder shall be construed as or deemed to be evidence of an admission or concession by EA,

22

CLC, or the other Released Parties of an interpretation of, any liability or wrongdoing by EA or

23

CLC, or of the truth of any allegations asserted by Plaintiffs, Settlement Class Members or any

24

other person.

25

20.

The Court finds that the Settlement, along with all related drafts, motions, court

26

papers, conversations, negotiations, mediations and correspondence, including statements made in

27

mediations or written submissions to the mediator, constitute an offer to compromise and a

28
-7-

PRELIMINARY APPROVAL ORDER

1

compromise within the meaning of Federal Rule of Evidence 408, California Rule of Evidence

2

1152 and any equivalent rule of evidence of any state; and are privileged under Section 1119 of

3

the California Evidence Code.

4

21.

Except as explicitly provided in the Settlement Agreement, neither the

5

Settlement—approved or not approved—nor any exhibit, document or instrument delivered

6

thereunder, nor any statement, transaction or proceeding in connection with the negotiation,

7

execution or implementation of the Settlement, shall be admissible in evidence in this or any

8

other proceeding for any purpose, including as evidence. Without limitation of the foregoing,

9

nothing contained in the Settlement, approved or not approved, nor any exhibit, document or

10

instrument delivered thereunder, nor any statement, transaction or proceeding in connection with

11

the negotiation, execution or implementation of the Settlement, shall be given any form of res

12

judicata, collateral estoppel or judicial estoppel effect against EA, CLC or the other Released

13

Parties in any administrative or judicial forum or proceeding.

14

22.

Notwithstanding the foregoing, the Settlement, any order granting preliminary or

15

final approval of the Settlement and any appellate decision affirming Final Judgment is

16

admissible as follows.

17
18
19

(a)

The Settlement is admissible by any Party for the purpose of obtaining

approval of, implementing and/or enforcing the Settlement.
(b)

The Settlement, any order granting preliminary or final approval to the

20

Settlement, any appellate decision affirming Final Judgment, and any proceedings and

21

submissions in connection with this Settlement are admissible for purposes of determining

22

Class Counsel’s application for attorneys’ fees and costs or in connection with any appeal

23

of an award of Class Counsel’s attorneys’ fees and costs in this Action.

24

(c)

If finally approved, the Settlement, any order granting preliminary or final

25

approval of the Settlement and any appellate decision affirming any order of this Court

26

with respect to the Settlement, may be pleaded by EA, CLC, or the Released Parties as a

27

full and complete defense (including any defense based upon release, res judicata, or

28
-8-

PRELIMINARY APPROVAL ORDER

1

injunction) to any action, suit or other proceeding that has been or may be instituted,

2

prosecuted or attempted with respect to any of the Released Claims; and the Settlement,

3

any order granting preliminary or final approval to the Settlement and any appellate

4

decision affirming this Final Judgment, or any other proceedings in connection therewith,

5

may be filed, offered or submitted by EA, CLC, or the Released Parties or otherwise used

6

to support such defense.

7

23.

If the Settlement is not approved, or the Effective Date does not occur, or the

8

Settlement is terminated under its terms, then (a) all parties will proceed as if the Settlement

9

(except those provisions that, by their terms, expressly survive disapproval or termination of the

10

Settlement) had not been executed and the related orders and judgment had not been entered,

11

preserving in that event all of their respective claims and defenses in the Action; and (b) all

12

releases given will be null and void. In such an event, this Court’s orders regarding the

13

Settlement, including this Preliminary Approval Order, shall not be used or referred to in

14

litigation for any purpose. Nothing in the foregoing paragraph is intended to alter the terms of the

15

Settlement Agreement with respect to the effect of the Settlement Agreement if it is not approved.

16
17

24.

The Court further directs that the following deadlines are established by this

Preliminary Approval Order:

18

Opt Out Deadline:

19

Objection Deadline: [INSERT]

20

Fairness Hearing:

21

Court’s website to confirm.)

[INSERT]

[INSERT] (This date could change. The parties should check the

22
23

Dated this ___ day of ______________, 2014.

24

The Honorable Claudia Wilken
United States District Judge

25
26
27
28
-9-

PRELIMINARY APPROVAL ORDER

EXHIBIT B

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
If You Were Listed on the Roster of an NCAA Men’s Football or
Basketball Team Any Time Between May 4, 2003 and [PRELIMINARY
APPROVAL DATE], You Could be Affected by a Proposed Class Action
Settlement
A federal court authorized this Notice. This is not a solicitation from a lawyer.
• Class action lawsuits are currently pending against Defendants Electronic Arts Inc. (“EA”), Collegiate
Licensing Company (“CLC”), and the National Collegiate Athletic Association (“NCAA”).
• A proposed settlement of $40 million has been reached with EA. If the settlement is approved, it will
resolve the lawsuits as to EA and CLC.
• The Plaintiffs in the lawsuits allege, among other claims, violations of antitrust and right of publicity laws
stemming from the Defendants’ alleged license, use, and/or sale of class members’ name, image, and
likeness rights without compensation in NCAA-branded videogames manufactured and distributed by
EA. Defendants deny using Plaintiffs’ names, image or likenesses and any wrong-doing.
• Even if the proposed settlement is approved, the lawsuits will continue against the NCAA.
• This notice includes information regarding the litigation and proposed settlement with EA. Your legal
rights and options – and the deadlines to exercise them – are also explained in this notice. Please read
the entire notice carefully.
• Your legal rights will be affected whether you act or don’t act, but the only way you receive money
from the settlement fund is by submitting a valid claim as described below.

YOUR LEGAL RIGHTS AND OPTIONS IN THIS SETTLEMENT
SUBMIT A CLAIM

The only way to get a payment. To obtain a payment from the
settlement fund, you must submit a valid claim form.

EXCLUDE YOURSELF

Get no payment. This is the only option that allows you to ever be
part of any other lawsuit against EA and/or CLC about the legal
claims in this case.

OBJECT

Write to the Court about what you don’t like about the settlement.

GO TO A HEARING
DO NOTHING

Ask to speak to the Court about the fairness of the settlement.
Get no payment and give up your rights.

1

WHAT THIS NOTICE CONTAINS
BASIC INFORMATION ................................................................................................................................................... 3
1.
Why did I get this Notice? .................................................................................................................. 3
2.
What is this lawsuit about? ................................................................................................................. 3
3.
Who are the Parties? ........................................................................................................................... 3
4.
What is a class action settlement? ...................................................................................................... 4
5.
Why is there a Proposed Settlement? ................................................................................................. 4
WHO IS AFFECTED BY THE PROPOSED SETTLEMENT.................................................................................................... 4
6.
How do I know if I am part of the Proposed Settlement? .................................................................. 4
7.
I’m still not sure if I am included. ...................................................................................................... 5
8.
What does the Proposed Settlement provide? .................................................................................... 5
9.
How do I get a payment? .................................................................................................................... 5
10.
How much will my payment be? ........................................................................................................ 5
11.
When will I receive a payment? ......................................................................................................... 6
12.
What am I giving up to get a payment or stay in the class? ............................................................... 6
EXCLUDING YOURSELF FROM THE PROPOSED SETTLEMENT........................................................................................ 6
13.
How do I get out of the Proposed Settlement? ................................................................................... 6
14.
If I exclude myself, can I get money from the proposed settlement or object to the proposed
settlement? .......................................................................................................................................... 7
THE LAWYERS REPRESENTING YOU ............................................................................................................................ 7
15.
Do I have a lawyer in this case? ......................................................................................................... 7
16.
How will the lawyers be paid? ........................................................................................................... 7
17.
How do I tell the Court that I don’t like all or part of the proposed settlement?................................ 7
18.
What’s the difference between objecting and excluding? .................................................................. 8
THE COURT’S FAIRNESS HEARING............................................................................................................................... 8
19.
When and where will the Court decide whether to approve the Proposed Settlement? ..................... 8
20.
Do I have to come to the hearing? ...................................................................................................... 8
21.
May I speak at the hearing? ................................................................................................................ 9
IF YOU DO NOTHING ................................................................................................................................................... 9
22.
What happens if I do nothing at all? ................................................................................................... 9
GETTING MORE INFORMATION .................................................................................................................................... 9
23.
Are there more details about the Proposed Settlement? ..................................................................... 9
24.
How do I get more information? ........................................................................................................ 9

2

BASIC INFORMATION
1. Why did I get this Notice?
You may have been on the roster of an NCAA men’s basketball or football team during the period from and
including May 4, 2003 up to and including [PRELIMINARY APPROVAL DATE].
You were sent this Notice because, as a possible class member, you have the right to know about the proposed
settlement in these class action lawsuits, and about all your options, before the Court decides whether to approve
the settlement. If the Court approves it and after objections and appeals are resolved, an administrator appointed
by the Court will make payments, as described below, to settlement class members who submit a valid claim.
This Notice explains the litigation, the proposed settlement, your legal rights, what benefits are available, who is
eligible for them, and how to get them. You must submit a valid claim to receive a payment under the
settlement.
The Court supervising the case is the United States District Court for the Northern District of California. The
case is called In re NCAA Student-Athlete Name and Likeness Licensing Litigation, Case No. 09-CV-1967-CW.
The people who sued are the Plaintiffs, and the companies they sued, EA, CLC, and NCAA, are called
Defendants.
2. What is this lawsuit about?
There are two types of lawsuits involved in this case. The first type, called the Antitrust Lawsuits, allege, among
other things, that the NCAA, its member schools and conferences, CLC and EA committed violations of the
federal antitrust laws by engaging in a price fixing conspiracy and a group boycott/refusal to deal that unlawfully
foreclosed class members from receiving compensation in connection with the commercial exploitation of their
names, images, and likenesses during the years in which they played Division I college basketball or football
and after their intercollegiate athletic competition ceased.
The second type, called the Right of Publicity Lawsuits, allege, among other things, that the Defendants
misappropriated NCAA football and basketball players’ rights of publicity by using student athletes’ names,
images, and likenesses in EA’s NCAA-branded videogames.
Defendants have denied these claims and have asserted various defenses to the claims.
3. Who are the Parties?
The plaintiffs in the Antitrust Lawsuits are: Edward C. O’Bannon Jr., Oscar Robertson, William Russell, Harry
Flournoy, Alex Gilbert, Sam Jacobson, Thad Jaracz, David Lattin, Patrick Maynor, Tyrone Prothro, Damien
Rhodes, Eric Riley, Bob Tallent, Danny Wimprine, Ray Ellis, Tate George, Jake Fischer, Jake Smith, Darius
Robinson, Moses Alipate, and Chase Garnham.
The plaintiffs in the Right of Publicity Lawsuits are: Samuel Michael Keller, Ryan Hart, Shawne Alston, Bryan
Cummings, Lamarr Watkins, and Byron Bishop.
The Defendants are: Electronic Arts, Inc. (“EA”); Collegiate Licensing Company (“CLC”); and the National
Collegiate Athletic Association (“NCAA”).

3

4. What is a class action settlement?
In a class action, one or more individuals, called Class Representatives, sue on behalf of others who have similar
claims, and the claims are decided together by the Court. All of these people with similar claims are called a
class or class members. A class action settlement resolves the case for all class members as to those defendants
who are included in the settlement, except for those class members who exclude themselves from the class by
following the procedure set by the Court.
5. Why is there a Proposed Settlement?
EA and CLC have denied all liability in this case and have asserted various defenses to the Plaintiffs’ claims.
The Court did not decide in favor of the Plaintiffs, EA, or CLC. Instead, both sides agreed to the Proposed
Settlement. That way, they avoid the cost and risk of a trial, and the class members affected will get
compensation. The Class Representatives and Class Counsel think the Proposed Settlement is best for all class
members. The case is proceeding against the NCAA.
WHO IS AFFECTED BY THE PROPOSED SETTLEMENT
To see if you are affected by this Proposed Settlement, you first have to determine if you are a class member.
6. How do I know if I am part of the Proposed Settlement?
If the Settlement is approved, everyone who fits one or more of the class or subclass descriptions below (and not
within one of the excluded groups) will be a class member for settlement purposes only:
Antitrust Class Members: All current and former student-athletes residing in the United States who 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 allegedly have been included or could have been
included (by virtue of their appearance in a team roster) in or used in connection with NCAA Branded
Videogames published or distributed from July 21, 2005 until [PRELIMINARY APPROVAL DATE].
Antitrust Roster-Only Subclass Members: Those Antitrust Class Members whose images, likenesses and/or
names were not included in or used in connection with NCAA Branded Videogames.
Keller Right of Publicity Class Members: All NCAA football and basketball players listed on the roster of a
school whose team was included in an NCAA Branded Videogame published or distributed during the period
May 5, 2007 to [PRELIMINARY APPROVAL DATE] and whose assigned jersey number appears on a virtual
player in the software, or whose photograph was otherwise included in the software.
Hart/Alston Right of Publicity Class Members: All NCAA football and basketball players listed on the roster of
a school whose team was included in an NCAA Branded Videogame published or distributed during the period
May 4, 2003 to May 4, 2007 and whose assigned jersey number appears on a virtual player in the software, or
whose likeness was otherwise included in the software.
Excluded from all classes are EA, CLC, the NCAA, and their officers, directors, legal representatives, heirs,
successors, and wholly or partly owned subsidiaries or affiliated companies, class counsel and their employees,
and the judicial offers, and associated court staff assigned to cases listed in Section I of the Settlement
Agreement.

4

7. I’m still not sure if I am included.
If you are still not sure if you are a class member, you can ask for free help by visiting the official settlement
website at www._____________.com; contacting the Claims Administrator toll-free at _________; or contacting
any of the Class Counsel listed in Question 24 below. You are not required to pay anyone to assist you in filing a
claim.
THE PROPOSED SETTLEMENT BENEFITS

8. What does the Proposed Settlement provide?
The Proposed Settlement provides for a total cash payment of $40 million (the “Settlement Fund”).
9. How do I get a payment?
If you are a settlement class member, you do not exclude yourself from the class, and you submit a valid and
timely claim, you are eligible to get a payment. In order to receive a payment, you must submit a valid and timely
claim. If you did not receive a claim form by mail, you may fill out an online claim form or you may request a
claim form at www.__________.com or by calling the Claims Administrator toll-free at __________.
Completed Claim Forms must be filled out online or be post-marked by [
Claims Administrator at the following address:

] and returned to the

[INSERT]
If you do not submit a timely, properly addressed claim form, your claim may be rejected and you may not be able
to get any payment.
10. How much will my payment be?
Class Counsel have proposed a Plan of Allocation describing the division of the Settlement Fund.
Under the Plan of Allocation, the Settlement Fund will first be used to pay attorneys’ fees and expenses approved
by the Court, and the entire balance (the “Net Settlement Fund”) will be distributed to class members that submit
valid and timely claims as follows:
•
•
•

•

12.5% of the Net Settlement Fund will be allocated, pro rata per season roster appearance,
Antitrust Roster-Only Subclass Members;
10% of the Net Settlement Fund will be allocated, pro rata per season roster appearance,
Hart/Alston Right of Publicity Class Members; and
77.5% of the Net Settlement Fund will be allocated, pro rata per season roster appearance,
Antitrust Class Members other than Antitrust Roster-Only Subclass Members, and Keller Right
Publicity Class Members.
YOU MAY BE IN MORE THAN ONE OF THESE GROUPS.

Below is a chart with estimated recovery amounts per roster year appearance at various claims rates that can be
used to estimate total recovery by class members. The amount of money distributed to each class member will
vary depending on: (1) which class(es) you are part of; (2) how many years you were listed on a roster; (3) the
5

to
to
to
of

total number of class members; (4) the number of class members that submit valid claims; and (5) the amount of
fees and costs awarded by the court. Each amount below is the recovery amount for an appearance on a single
season roster or one version of the game. If, for example, a class member appeared in four versions of the
videogame from 2007-2011, he would receive 4 x $665-951 (assuming a 25% claims rate). For additional
calculation examples, please visit www.___________.com.
Estimated Amount Per Roster Year Appearance at Various Claims Rates
100%
75%
50%
25%
In Game 2003-2005
$96-129
$129-172
$193-259
$386-517
In Game 2005-2014
$166-238
$222-317
$332-476
$665-951
Roster Only 2005-2014
$48-69
$64-92
$96-138
$193-276
11. When will I receive a payment?
The Net Settlement Fund will be distributed to Settlement Class Members after the claim forms are processed
and the Court has authorized distribution.
12. What am I giving up to get a payment or stay in the class?
Unless you exclude yourself from the settlement, you are staying in the class, and that means that you can’t sue,
continue to sue, or be part of any other lawsuit against EA and/or CLC involving the legal issues in the lawsuits.
This is called a release. It also means that all of the Court’s orders will apply to you and legally bind you.
In exchange for the benefits described in this notice, the proposed settlement states that there will be a release of
claims against EA, CLC, and the other Released Parties (as defined in the Settlement Agreement). The Proposed
Settlement, however, does not release any claims against the NCAA.
The settlement agreement, which is available at www.___________.com describes the legal claims that you give
up if you stay in the class.
EXCLUDING YOURSELF FROM THE PROPOSED SETTLEMENT
If you want to keep the right to sue or continue to sue EA and/or CLC on your own about the legal issues in this
case, then you must take steps to get out of the settlement with EA. This is called excluding yourself—or
sometimes referenced as opting out of the class. If you opt out of a settlement, you will not get any payment from
the settlement.
13. How do I get out of the Proposed Settlement?
To exclude yourself from the Proposed Settlement, you must send a letter by mail saying that you want to be
excluded from the settlement class. You cannot exclude yourself on the phone or by e-mail. The letter must
include the following information:
•
•

Your name
A statement indicating that you want to be excluded from the settlement class and do not wish to
participate in the Proposed Settlement.

Your letter must be postmarked by ________and sent to:
6

[INSERT]
Unless you exclude yourself, you cannot sue EA or CLC for the claims that the settlement resolves. If you have a
pending lawsuit against EA or CLC involving the same legal issues in this case, speak to your lawyer in that case
immediately. (You must exclude yourself from this class in order to continue your own lawsuit against EA and/or
CLC.)
14. If I exclude myself, can I get money from the proposed settlement or object to the proposed
settlement?
No. If you decide to exclude yourself from the Proposed Settlement, you will not be able to get money from the
Proposed Settlement, and you cannot object to the settlement. You will not be legally bound by anything that
happens in this lawsuit. You may be able to sue (or continue to sue) EA and/or CLC in the future.
THE LAWYERS REPRESENTING YOU
15. Do I have a lawyer in this case?
Yes. The Court has appointed the law firms of Hausfeld LLP, Hagens Berman Sobol Shapiro LLP, The
McKenna Law Firm LLC, and Lum, Positan & Drasco LLP to represent the class. You will not be charged for
these lawyers. If you want to be represented by your own lawyer and have that lawyer appear in court for you in
this case, you may hire one at your own expense.
16. How will the lawyers be paid?
You are not personally responsible for payment of attorney’s fees or expenses for Class Counsel. Instead as
compensation for their time and risk in litigating the case on a contingent basis, Class Counsel will ask the Court
to approve payment from the settlement fund of attorney’s fees of up to 33% of the $40 million dollar
Settlement Fund, as well as for reimbursement for costs and expenses incurred in the prosecution of the lawsuits
not to exceed $2,500,000.
Class Counsel will also ask the Court to approve from the settlement fund incentive payments for each of the
three class representatives for their work in representing Class Representatives: $15,000 for Samuel Michael
Keller, Edward C. O’Bannon, and Ryan Hart; $5,000 for Oscar Robertson, William Russell, Harry Flournoy,
Alex Gilbert, Sam Jacobson, Thad Jaracz, David Lattin, Patrick Maynor, Tyrone Prothro, Damien Rhodes, Eric
Riley, Bob Tallent, Danny Wimprine, Ray Ellis, Tate George, Jake Fischer, Jake Smith, Darius Robinson,
Moses Alipate, Chase Garnham, and Shawne Alston; and $2,500 for Bryan Cummings, Lamarr Watkins, and
Byron Bishop.
17. How do I tell the Court that I don’t like all or part of the proposed settlement?
You can object to the proposed settlement if you are a member of the settlement class and have not opted-out.
You can object if you don’t like any part of the proposed settlement, or if you disagree with the plan of
allocation, the request for attorneys’ fees and reimbursement of expenses, or the request for incentive payments.
You can give reasons why you think the Court should not approve any or all of them. The Court will consider
your views.
You can’t ask the Court to order a larger settlement; the Court can only approve or deny the settlement. If the
Court denies approval, no settlement payments will be sent out and the lawsuit will continue. If that is what you
want to happen, you must object.
7

You may object to the proposed settlement in writing. You may also appear at the Final Approval Hearing,
either in person or through your own attorney. If you appear through your own attorney, you are responsible for
paying that attorney.
All written objections and supporting papers must:
•
•
•

•

clearly state your name;
identify the case name and number (In re NCAA Student-Athlete Name and Likeness Licensing
Litigation, Case No. 09-CV-1967-CW);
be submitted to the Court either by mailing them to the Class Action Clerk, United States District
Court for the Northern District of California, 1301 Clay Street, Oakland, CA 94612, or by filing
them in person at any location of the United States District Court for the Northern District of
California.
be filed or postmarked on or before _________________.

18. What’s the difference between objecting and excluding?
Objecting is simply telling the Court that you don’t like something about the Proposed Settlement, plan of
allocation, the request for attorneys’ fees and reimbursement of expenses, or the request for incentive payments.
You can object to the Proposed Settlement only if you stay in the class. If you exclude yourself, you have no right
to object because the Proposed Settlement no longer affects you.
THE COURT’S FAIRNESS HEARING
Class counsel will file a motion for final approval of the Proposed Settlement, the plan of allocation, the request
for attorneys’ fees and reimbursement of expenses, and the request for incentive payments, which will contain
additional information. These papers are currently due to be filed by [at least fourteen days before the deadline for
objections] and will be available at www._____________.com.
The Court will hold a final fairness hearing to decide whether to approve the Proposed Settlement, the plan of
allocation, the request for attorneys’ fees and reimbursement of expenses, and the request for incentive payments.
You may attend but need not attend. If you do attend, you may ask the Court’s permission to speak (see Question
21 for instructions), but you don’t have to participate in the hearing if you do attend.
19. When and where will the Court decide whether to approve the Proposed Settlement?
The Court will hold a Fairness Hearing at _____ a.m. on ________________, 2014, at the United States District
Court for the Northern District of California, 1301 Clay Street, Oakland, CA 94612. The hearing may be moved
to a different date or time without additional notice, so you should check the settlement website
www.______________.com before making travel plans. If there are objections, the Court will consider them.
Judge Wilken will listen to class members who ask to speak at the hearing. We do not know when the Court will
approve the Proposed Settlement, the plan of allocation, the request for attorneys’ fees and reimbursement of
expenses, or the request for incentive payments. It may be at the Fairness Hearing or not until afterward.
20. Do I have to come to the hearing?
No. Class Counsel will be prepared to answer any questions the Court may have at the hearing. However, you
are welcome to attend the hearing at your own expense. If you send a comment or objection, you do not have to
come to court to explain. As long as you mailed your written comment or objection on time as set out in this
Notice, the Court will consider it. You may also pay another lawyer to attend, but it’s not required.
8

21. May I speak at the hearing?
Yes. You may ask the Court for permission to speak at the Fairness Hearing.
IF YOU DO NOTHING
22. What happens if I do nothing at all?
If you do nothing, you will remain in the settlement class for the Proposed Settlement, but you will not receive a
payment unless you submit a Claim Form. To submit a claim form, follow the instructions described in
Question 9.
GETTING MORE INFORMATION
23. Are there more details about the Proposed Settlement?
This Notice summarizes the Proposed Settlement. For the precise terms and conditions of the settlement, please
see the settlement agreement, available at www.____________.com, by contacting the Claims Administrator
toll-free at _________, by contacting Class Counsel as set forth below, by accessing the Court docket in this
case through the Court’s Public Access to Court Electronic Records (PACER) system at
https://ecf.cand.uscourts.gov, or by visiting the office of the Clerk of the Court for the United States District
Court for the Northern District of California, 1301 Clay Street, Oakland, CA 94612, between 9:00 a.m. and 4:00
p.m., Monday through Friday, excluding Court holidays.
24. How do I get more information?
If you have questions or want more information, you can visit the official settlement website at
www._____________.com; contact the Claims Administrator toll-free at _________; or contact any of the
following Class Counsel:
Michael D. Hausfeld
Hilary K. Scherrer
Sathya S. Gosselin
Hausfeld LLP
1700 K Street, N.W., Suite 650
Washington, DC 20006
202-540-7200

Steve W. Berman
Hagens Berman Sobol Shapiro LLP
1918 Eighth Ave., Suite 3300
Seattle, WA 98101
206-623-7292

Rob Carey
Leonard Aragon
Hagens Berman Sobol Shapiro LLP
11 W. Jefferson, Suite 1000
Phoenix, Arizona 85014
602-840-5900

Dennis J. Drasco
Lum, Drasco & Positan LLC
103 Eisenhower Pkwy
Roseland, New Jersey, 07068
973-403-9000

Keith McKenna
The McKenna Law Firm, LLC
96 Park Street
Montclair, New Jersey 07042
973-509-0050
9

PLEASE DO NOT TELEPHONE THE COURT OR THE COURT CLERK’S OFFICE TO INQUIRE
ABOUT THIS SETTLEMENT OR THE CLAIM PROCESS

DATED: ______________, 2014

BY ORDER OF THE COURT
UNITED STATES DISTRICT
COURT FOR THE NORTHERN
DISTRICT OF CALIFORNIA

4841-3231-0810, v. 5

10

EXHIBIT C

Legal Notice

If You Were Listed on the Roster of an NCAA Men’s Football or Basketball
Team at Any Time Between May 4, 2003 and [PRELIMINARY APPROVAL
DATE], You Could be Affected by a Proposed Class Action Settlement
What is the settlement about?
Class action lawsuits are currently pending against Defendants
Electronic Arts, Inc. (“EA”), Collegiate Licensing Company
(“CLC”), and the National Collegiate Athletic Association
(“NCAA”). A Proposed Settlement of $40 million has been reached
that would resolve these lawsuits as to EA and CLC. The Plaintiffs
in the lawsuits allege, among other claims, violations of antitrust and
right of publicity laws stemming from the Defendants’ license, use,
and/or sale of NCAA men’s football and basketball players’ name,
image, and likeness rights in NCAA branded videogames without
compensation. Defendants have denied these claims and have
asserted various defenses to the claims. The settlement provides the
class with a significant financial recovery and helps the parties avoid
the cost and risk of a trial against EA and CLC. The litigation is
continuing against the NCAA.
Who is a Settlement Class Member?
Everyone who fits one or more of these descriptions (and is not
within one of the excluded groups) is a class member:
Antitrust Class Members: All current and former student-athletes
residing in the United States who 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 allegedly
have been included or could have been included (by virtue of their
appearance in a team roster) in or used in connection with NCAA
Branded Videogames published or distributed from July 21, 2005
until [PRELIMINARY APPROVAL DATE].
Keller Right of Publicity Class Members: All NCAA football and
basketball players listed on the roster of a school whose team was
included in an NCAA Branded Videogame published or distributed
during the period May 4, 2003 to [PRELIMINARY APPROVAL
DATE] and whose assigned jersey number appears on a virtual
player in the software, or whose photograph was otherwise included
in the software.
Hart/Alston Right of Publicity Class Members: All NCAA football
and basketball players listed on the roster of a school whose team
was included in an NCAA Branded Videogame published or
distributed during the period May 4, 2003 to May 4, 2007 and whose
assigned jersey number appears on a virtual player in the software, or
whose likeness was otherwise included in the software.

Will I get a payment?
If you are a settlement class member, and do not opt out, you will be
eligible to receive a payment but must submit a claim form which you
can obtain by visiting the website or by calling the number listed
below.
What are my rights?
If you do not want to take part the settlement, you have the right to opt
out of the settlements. To opt out, you must do so by ____, 2014. Class
members who choose not to opt out also have the right to object to the
settlement, the Plan of Allocation and the Application for Attorneys’
Fees and Reimbursement of Expenses. If you object, you must do so by
_____, 2014. You may speak to your own attorney at your own expense
for help.
A Final Approval Hearing to consider approval of the settlement will be
held at the United States District Court for the Northern District of
California, 1301 Clay Street, Oakland, CA 94612 on ____, 2014 at
______.
This is a Summary, where can I get more information?
You can get complete settlement information, including a copy of the
full Notice, by visiting www.___________.com, calling _________, or
writing to _____________.
You can also obtain additional information by contacting any of the
following Class Counsel:
Michael D. Hausfeld
Hausfeld LLP
1700 K Street, N.W., Suite 650
Washington, DC 20006
Tel: [phone]
Rob Carey
Leonard Aragon
Hagens Berman Sobol Shapiro
LLP
11 W. Jefferson, Suite 1000
Phoenix, Arizona 85003
Tel: [phone]
Keith McKenna
The McKenna Law Firm, LLC
96 Park Street
Montclair, New Jersey 07042
973-509-0050

Steve W. Berman
Hagens Berman Sobol Shapiro
LLP
1918 Eighth Ave., Suite 3300
Seattle, WA 98101
Tel: [phone]
Dennis J. Drasco
Lum, Drasco & Positan LLC
103 Eisenhower Pkwy
Roseland, New Jersey, 07068
Tel: [phone]

Excluded from all classes are EA, CLC, the NCAA, and their
officers, directors, legal representatives, heirs, successors, class
counsel and their employees, and the judicial officers, and associated
court staff assigned to cases listed in Section I of the Settlement
Agreement.

000-000-0000

www._______.com

EXHIBIT D

CLAIM FORM
To receive benefits from this Settlement, your
Claim Form must be postmarked on or before _______________, 2014.
You may submit your claim form online at www.____________________.com
or mail your completed and signed claim form to:
[INSERT]
You must complete all sections and sign below in order to receive any benefits from this Settlement.
_______________________________________________
NAME

EMAIL ADDRESS

______________________________________________________________________________________________
MAILING ADDRESS
_________________________________________
CITY

____ ____
STATE

___ ___ ___ ___ ___ - ___ ___ ___ ___
ZIP
ZIP4 (optional)

FOR EACH SCHOOL, COLLEGE, OR UNIVERSITY ATTENDED, PLEASE IDENTIFY WHAT YEAR(S) YOU WERE
LISTED ON AN NCAA MEN’S BASKETBALL OR FOOTBALL TEAM ROSTER. If you don’t know whether you were
listed on the team roster, include the years that you attended school and played NCAA men’s basketball or
football.
SCHOOL, COLLEGE, OR UNIVERSITY

YEAR(S) LISTED ON NCAA MEN’S
BASKETBALL OR FOOTBALL TEAM
ROSTER

THE SPORT FOR WHICH YOU
WERE LISTED ON A ROSTER

I declare, under penalty of perjury, that I have accurately filled out
this form to the best of my knowledge.
Signature: ________________________________________________
Name (please print): _______________________________________
Date:___________________________________

EXHIBIT E

1
2
3
4
5
6
7
8
9
10
11
12
13
14

Robert B. Carey (Pro Hac Vice)
Leonard W. Aragon (Pro Hac Vice)
HAGENS BERMAN SOBOL SHAPIRO LLP
11 West Jefferson Street, Suite 1000
Phoenix, Arizona 85003
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
[e-mail]
Michael P. Lehmann (Cal. Bar No. 77152)
Arthur N. Bailey, Jr. (Cal. Bar No. 248460)
HAUSFELD LLP
44 Montgomery Street
Suite 3400
San Francisco, CA 94104
Tel: [phone]
Fax: [phone]
Email: [e-mail]
[e-mail]
Plaintiffs’ Interim Co-Lead Class Counsel
(Additional Counsel Listed on Signature
Page)

15
16
17
18
19

UNITED STATES DISTRICT COURT

20
NORTHERN DISTRICT OF CALIFORNIA
21
OAKLAND DIVISION

22
23
24

IN RE NCAA STUDENT-ATHLETE
NAME & LIKENESS LICENSING
LITIGATION

25
26
27
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

)
)
)
)
)
)
)

Case No. C 09-01967 CW
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

1
2
3

1.

Plaintiffs (as defined below) submit this amended complaint pursuant to a

settlement agreement and stipulation with Defendant Electronic Arts, Inc. (“EA”). This
amendment adds claims by Plaintiffs Ryan Hart and Shawn Alston (collectively Hart/Alston

4
Right of Publicity Plaintiffs) against EA only. This amendment makes no changes to the factual
5
6
7

allegations or claims made by the Keller Right of Publicity Plaintiffs or the O’Bannon Antitrust
Plaintiffs.
2.

8
9
10
11

With respect to the right of publicity and related claims pertaining to video

games, as brought in the Keller complaint, Plaintiffs Samuel Keller, Bryan Cummings, Lamarr
Watkins, and Bryon Bishop (collectively “Keller Right of Publicity Plaintiffs”) bring this action
individually and as putative class representatives as further described herein. The terms “Keller

12
13
14
15

Right of Publicity”, as used herein, refers to the various claims described in the Keller Right of
Publicity Causes of Action set forth below.
3.

With respect to the antitrust and related claims pertaining to multiple products, as

16

brought in the O’Bannon complaint, Plaintiffs Edward C. O’Bannon, Jr. (“Ed O’Bannon”), Oscar

17

Robertson, William Russell, Harry Flournoy, Alex Gilbert, Sam Jacobson, Thad Jaracz, David

18

Lattin, Patrick Maynor, Tyrone Prothro, Damien Rhodes, Eric Riley, Bob Tallent, Danny

19
Wimprine, Ray Ellis, Tate George, Jake Fischer, Jake Smith, Darius Robinson, Moses Alipate,
20
21

Chase Garnham, and Victor Keise (collectively “Antitrust Plaintiffs” or “Antitrust Class

22

Representatives”) bring this action individually and as putative class representative as further

23

described herein. The terms “Antitrust Claims” and “Antitrust”, as used herein, refer to the claims

24

described in the Antitrust Causes of Action set forth below.

25
26

4.

Plaintiffs, by and through their attorneys, based on their individual experiences,

the investigation of counsel, and upon information and belief allege as follows.

27
INTRODUCTION TO THE KELLER RIGHT OF PUBLICITY AND RELATED CLAIMS
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

-2-

1

5.

2

Association (“NCAA”) student-athlete likenesses in videogames produced by EA. Despite clear

3

This suit arises out of the blatant and unlawful use of National Collegiate Athletic

prohibitions on the use of student names and likenesses in NCAA bylaws, contracts and licensing

4
agreements, EA utilizes the likenesses of individual student-athletes in its NCAA basketball and
5
6

football videogames to increase sales and profits. EA also intentionally circumvents the

7

prohibitions on utilizing student-athletes’ names in commercial ventures by allowing gamers to

8

upload entire rosters, which include players’ names and other information, directly into the game

9

in a matter of seconds. Rather than enforcing its own rules, the NCAA and its licensing arm, the

10
11

Collegiate Licensing Company (“CLC”), have sanctioned EA’s violations. In fact, the NCAA
and the CLC have expressly investigated and approved EA’s use of player names and likenesses.

12
13
14

They have done so because EA’s use of player names and likenesses benefits the NCAA and
CLC by increasing the popularity of the relevant games and thus the royalties that the NCAA and

15

CLC can collect.

16

6.

17

likenesses and distinctive appearances have been used without their permission or consent, to

18

This is a proposed class action on behalf of NCAA student-athletes whose

increase revenues and profits for Defendants, and in violation of state law.

19
INTRODUCTION TO ANTITRUST AND RELATED CLAIMS
20
21

7.

This case involves anticompetitive conduct, namely a conspiracy by Defendant

22

National College Athletic Association (“NCAA”), its member schools and conferences, and its

23

vertical business partners, such as Defendants Electronic Arts, Inc. (“EA”), and the Collegiate

24

Licensing Company (“CLC”), to license and sell the names, images, and likeness of current and

25

former student-athletes without compensation to those student-athletes, under the guise of

26

“amateurism.”

27
8.

The right to license or sell one’s name, image, and likeness is a property

28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

-3-

1

right with economic value. Myles Brand, then-President (“Brand”), former President of the

2

NCAA, conceded this in public remarks that he made in 2008.

3

9.

Despite the fact that each and every current and former student-athlete

4
possesses that right and therefore is entitled to control the use and attendant revenue from the
5
6

use of their name, image, and likeness, Defendants and their co-conspirators have collectively

7

reaped billions of dollars in revenue from the license and sale of game footage (including games

8

and clips used in television broadcasts and rebroadcasts, DVDs, on-demand streaming, and

9

“stock footage”), video games, photographs, jerseys and other apparel, trading cards, and other

10
11

memorabilia containing the names, images, and likenesses of current and former studentathletes without paying a cent to those whose names, images, and likenesses were used.

12
13
14

10.

The NCAA is a member association comprised of collegiate schools and

conferences. It has described itself as “a bottom-up organization in which the members rule the

15

Association.” The NCAA, in conjunction with its members, has established a constitution,

16

bylaws, regulations, rules, interpretations, and policies, both written and unwritten, which

17

regulate all aspects of collegiate athletics, including the conduct of member schools and

18

conferences, student-athletes, and the NCAA’s business partners.

19
11.

According to the NCAA:

20
Bylaw 12 and other legislation are highly nuanced in language and
implementation to ensure that student-athletes do not receive
benefits that could be construed as remuneration for athletics
participation, do not trade on their public standing as a
student-athlete, and are not exploited by professional or
commercial interests that would abridge their status as amateurs in
their sport. (Emphasis added)

21
22
23
24
25
26

12.

The conspiracy to deny compensation to current and former student-athletes for

the use of their names, images, and likeness emanates from a commercial bylaws, regulations,

27
rules, and policies, both written and unwritten developed and interpreted by the NCAA.
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

-4-

1

Additionally, recognizing that the student-athletes hold the right to control the use of their

2

names, images and likenesses, the NCAA and its member schools and conferences require

3

student-athletes to sign form releases to be eligible for intercollegiate athletics. These releases

4
are not explained to student-athletes, the student-athletes receive no consideration for the
5
6
7

release, and as such, the releases are, among other things, unenforceable contracts of adhesion.
13.

While the NCAA rules, on their face, apply only to current student-athletes, they

8

are also viewed as binding on former student-athletes as well. NCAA President Mark Emmert

9

(“Emmert”) testified that neither the NCAA nor its members can pay former student-athletes:

10

They [NCAA members] are not free to do so if that was a--an
agreement that was struck before or during the time that the
individual was a student-athlete.
…

11
12
13

“[W]e [the NCAA] don’t share revenue with student-athletes after
they have left their NCAA participation.

14
15

14.

Defendants conduct is in violation Section 1 of the Sherman Act, 15 U.S.C. § 1.

16

Specifically, Defendants and their co-conspirators have engaged and continue to engage in an

17

overarching conspiracy to: (a) fix the amount current and former student-athletes are paid for

18
19

the licensing, use, and sale of their names, images, and likenesses at zero; and (b) foreclose
current and former student-athletes from the market for the licensing, use, and sale of their

20
21
22

names, images, and likenesses.
15.

The conspiracy has both horizontal and vertical aspects. The horizontal aspects

23

emanate from the fact that NCAA’s member schools, which are horizontal competitors for

24

student-athletes, restrain competition by agreeing, through the NCAA, not to compete for

25

student-athletes on the basis of compensation in any form, promised, current, or deferred. The

26

vertical aspects emanate from the fact that the NCAA and its member schools and conferences,

27
in order not to undermine their horizontal agreement, further have agreed to impose, and EA,
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

-5-

1

CLC and other unnamed vertical business partner co-conspirators have agreed to abide by, the

2

same compensation restrictions. EA and CLC (including affiliates, predecessors, and

3

successors of CLC) have affirmatively participated in the NCAA’s efforts to usurp the student-

4
athletes’ name, image and likeness rights without compensation to the athletes and to foreclose
5
6
7

them from participating in the market.
16.

Antitrust Plaintiffs and putative Class Representatives Ed O’Bannon, Oscar

8

Robertson, William Russell, Harry Flournoy, Alex Gilbert, Sam Jacobson, Thad Jaracz, David

9

Lattin, Patrick Maynor, Tyrone Prothro, Damien Rhodes, Eric Riley, Bob Tallent, Danny

10
11

Wimprine, Ray Ellis, Tate George, Jake Fischer, Jake Smith, Darius Robinson, Moses Alipate,
Chase Garnham, and Victor Keise bring this action both individually and on behalf of two

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

classes—the the “Antitrust Declaratory and Injunctive Relief Class,” comprised of current and
former student-athletes and the “Antitrust Damages Class,” comprised of former studentathletes, as follows:
The Antitrust Declaratory and Injunctive Relief Class
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 or could have been included (by virtue of their appearance
in a team roster) in game footage or in videogames licensed or sold
by Defendants, their co-conspirators, or their licensees. The Class
excludes the officers, directors, and employees of Defendants, the
officers, directors and employees of any NCAA Division I college
or university, and the officers, directors, or employees of any
NCAA Division I athletic conference.
The Antitrust Damages Class
All former student-athletes residing in the United States who
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
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

-6-

1

Division I-A until 2006) men’s football team whose images,
likenesses and/or names have been included or could have been
included (by virtue of their appearance in a team roster) in game
footage or in videogames licensed or sold by Defendants, their coconspirators, or their licensees from July 21, 2005 and continuing
until a final judgment in this matter. The class excludes current
student-athletes. The Class also excludes the officers, directors,
and employees of Defendants, the officers, directors, and
employees of any NCAA Division I college or university, and the
officers, directors, or employees of any NCAA Division I athletic
conference.

2
3
4
5
6
7
8
9
10
11

17.

As set forth in more detail below, the relief sought includes damages sustained by

the Antitrust Damages Class with respect to the license or sale of names, images, and/or
likeness in connection with game footage or videogames and injunctive relief enjoining the
anticompetitive conduct alleged herein.

12
HART/ALSTON RIGHT OF PUBLICITY AND RELATED CLAIMS
13
14

18.

This suit arises out of the blatant and unlawful use of NCAA student-athlete

15

likenesses in videogames produced by EA. As a proximate result of EA’s conduct, Plaintiffs,

16

Ryan Hart, Samuel Keller and Class Members have sustained and will continue to sustain injury

17

and damages, in an amount to be proved at trial.

18
19

19.

Defendant EA’s products, specifically the NCAA Football and NCAA Basketball

videogame franchises, use without authorization the names, images, and likenesses of Plaintiff

20
and Class Members. This misappropriation was done in disregard of the rights of the Plaintiffs
21
22
23
24
25
26
27

and Class Members and with the intent of increasing EA’s sales and profits.
20.

Through EA’s course of action and inaction, EA has caused and will continue to

cause injury and damage to Plaintiffs and Class Members in an amount to be proved at trial.
21.

Accordingly, Plaintiff and Class Members bring this suit to stop EA from

continuing its unlawful course of conduct and to recover all monetary losses EA has caused to
Plaintiff and Class Members.

28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

-7-

1
2
3
4

JURISDICTION AND VENUE WITH RESPECT TO RIGHT OF PUBLICITY CLAIMS
22.

This Court has diversity jurisdiction over this action pursuant to 28 U.S.C.

§ 1332(a) and (d) because the amount in controversy for the Class exceeds $5,000,000, and the
Right of Publicity Plaintiffs and other putative Class members are citizens of different states

5
6
7

than Defendants.
23.

This Court has personal jurisdiction over the Right of Publicity Plaintiffs because

8

Plaintiffs Samuel Keller, Bryan Cummings, Bryon Bishop Lamarr Watkins, Ryan Hart and

9

Shawne Alston submit to the Court’s jurisdiction. This Court has personal jurisdiction over

10
11

Defendants because Defendant Electronic Arts is headquartered in the District and Defendants
CLC and NCAA conduct substantial business in the District. Furthermore, many of the actions

12
giving rise to the complaint took place in the District, including the creation of the software that
13
14
15

is the subject of the complaint.
24.

Venue is proper in this District under 28 U.S.C. § 1391 because Defendants, as

16

corporations, are “deemed to reside in any judicial district in which they are subject to personal

17

jurisdiction,” and because many of the decisions behind the scheme to use student-athletes’

18

names and likenesses were made in this District. Because Electronic Arts resides in the

19

District, Defendants all transact business within the District, and a substantial part of the events

20
giving rise to the claims arose in this District, venue is proper.
21
22

25.

Assignment to the Oakland division of this Court is appropriate because Defendant

23

EA’s headquarters and principal place of business is in Redwood City, California. Because this

24

action arises in the county of San Mateo, pursuant to Northern District of California, Local Rule

25

3-2(d), assignment to the Oakland Division is proper.

26
27

JURISDICTION AND VENUE WITH RESPECT TO ANTITRUST CLAIMS
26.

The Court has subject matter jurisdiction under 28 U.S.C. § 1331 (federal

28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

-8-

1

question) and 28 U.S.C. § 1337 (commerce and antitrust regulation), as this action arises under

2

Section 1 of the Sherman Act, 15 U.S.C. § 1, and Sections 4 and 16 of the Clayton Act, 15

3

U.S.C. §§ 15(a) and 26. The Court has supplemental subject matter jurisdiction over the

4
pendent state law claims under 28 U.S.C. § 1367. The Court also has jurisdiction over this
5
6

matter pursuant to 28 U.S.C.

§ 1332(d), in that this is a class action in which the matter or

7

controversy exceeds the sum of $5,000,000, exclusive of interest and costs, and in which some

8

members of the proposed class are citizens of a state different from the Defendants.

9
10
11

27.

Venue is proper because Defendants reside, are found, have agents, and transact

business in this District as provided in 28 U.S.C. § 1391(b) and (c) and in Sections 4 and 12 of
the Clayton Act, 15 U.S.C. §§ 15 and 22.

12
13
14

28.

This Court has personal jurisdiction over Defendants because, inter alia, they:

(a) transacted business throughout the United States, including in this District; (b) participated

15

in organizing intercollegiate athletic contests, and/or licensing or selling merchandise

16

throughout the United States, including in this District; (c) had substantial contacts with the

17

United States, including in this District; and (d) were engaged in an illegal anticompetitive

18

scheme that was directed at and had the intended effect of causing injury to persons residing in,

19
located in, or doing business throughout the United States, including in this District.
20
21

Additionally, Defendant EA maintains its headquarters in this District. Numerous NCAA

22

Division I universities or colleges also are found within this District, i.e., the University of

23

California’s Berkeley campus (“Cal”), Stanford University, Santa Clara University, the

24

University of San Francisco (“USF”), and St. Mary’s College.

25
26
27
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

-9-

1
2
3

KELLER RIGHT OF PUBLICITY PLAINTIFFS
29.

Plaintiff Samuel Keller, an individual, is an Arizona resident and the former

starting quarterback for the Arizona State University and University of Nebraska football teams.

4
30.

Plaintiff Bryan Cummings, an individual, is a New York resident and a former

5
6
7
8
9
10

linebacker for the University of Buffalo football team.
31.

Plaintiff Lamarr Watkins, an individual, is a New Jersey resident and a former

linebacker for the University of Wisconsin football team.
32.

Plaintiff Byron Bishop, an individual, is a South Carolina resident and a former

left guard for the University of North Carolina football team.

11

ANTITRUST PLAINTIFFS

12
33.

The Plaintiffs described below are set forth as Class Representatives for the

13
14
15
16

Antitrust Claims as separately defined and detailed herein.
Ed O’Bannon
34.

Antitrust Plaintiff Ed O’Bannon filed the first antitrust action in these consolidated

17

matters, and is a resident of Henderson, Nevada. Mr. O’Bannon competed on the University of

18

California, Los Angeles (“UCLA”) men’s basketball team in the 1991-92, 1992-93, 1993-94,

19

and 1994-95 seasons. UCLA was and is a member of the Pac-10 Conference. In the 1994-95

20
season, Mr. O’Bannon led his team to a national championship, and scored 30 points and had
21
22

17 rebounds in the championship game. Mr. O’Bannon received the John R. Wooden award as

23

the nation’s most outstanding men’s basketball player for the 1994-95 season, and also was

24

selected by the Associated Press as the 1994-95 NCAA postseason tournament’s Most

25

Outstanding Player (“MOP”). Mr. O’Bannon competed pursuant to the NCAA’s rules and

26
27

regulations, and has been deprived of compensation by Defendants and their co-conspirators for
the continued use of his image following the end of his intercollegiate athletic career. Mr.

28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 10 -

1

O’Bannon signed one or more of the release forms discussed herein (or the precursors to them,

2

including scholarship and eligibility papers that the NCAA has interpreted as a release of the

3

student-athlete’s rights with respect to his image, likeness and/or name in connection with

4
merchandise sold by the NCAA, its members, and/or its licensees).
5
6

35.

Mr. O’Bannon’s image, likeness and/or name along with those of other Antitrust

7

Damages Class members, is being offered for sale and/or used during the Antitrust Class Period

8

in at least the ways described below, without informed consent from him and without

9

compensation paid to him. For example, on the NCAA’s On Demand on-line store, operated in

10
11

connection with its for-profit business partner Thought Equity Motion (“TEM”), a two DVD
“1995 Men’s Basketball National Championship Box Set” is offered for $39.99, and described

12
13
14

as follows: “Ed O'Bannon, earning MOP honors, lead UCLA back to prominence by defeating
Arkansas 89-78 for their 11th title in school history. The box set also includes the 1995 Final

15

Four Highlights Video featuring UCLA, Arkansas, North Carolina, Oklahoma St.” The Final

16

Four Highlights Video is separately offered for sale for $24.99. UCLA’s NCAA tournament

17

first round game against Florida International from 1994-95 is offered for sale at $24.99, and its

18

description includes the following: “UCLA was led by All-Tournament Team selections Toby

19
Bailey and Ed O'Bannon, the tournament's Most Outstanding Player.” UCLA’s regional semi20
21

final game against Missouri is offered for $24.99, and its description includes the following:

22

“UCLA was led by All-Tournament Team selections Toby Bailey and Ed O’Bannon, the

23

tournament’s Most Outstanding Player.” UCLA’s national semi-final game against Oklahoma

24

State is offered for sale at $24.99, and its description includes the following: “UCLA was led

25

by All-Tournament Team selections Toby Bailey and Ed O’Bannon, the tournament’s Most

26

Outstanding Player.”

27
36.

As additional examples, other DVDs offered for sale utilizing the image of Mr.

28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 11 -

1

O’Bannon and other Antitrust Damages Class members from the 1994-95 season include DVDs

2

of UCLA’s regional final game versus the University of Connecticut, available for $24.99, and

3

the championship game versus Arkansas offered for sale at $24.99. An NCAA tournament

4
first-round game against Tulsa from the 1994-95 season is available for “pre-order,” and a
5
6

description notes that “production of this game has been delayed.” For the 1992-93 season, a

7

“Michigan Men’s Basketball Fab Five 1993” three DVD set is offered for $59.99, and one of

8

the games included is a regional game versus UCLA. That game is also separately offered for

9

sale at $24.99. Also available for “pre-order” is UCLA’s first round game versus Iowa State.

10
11

For the 1991-92 season, four UCLA NCAA tournaments games (against Robert Morris,
Louisville, Indiana, and New Mexico State) are available for pre-order.

12
13
14

37.

The DVDs described above are available through numerous other outlets,

including UCLA’s Official On-Line DVD store, where the 1995 championship game is

15

currently listed as the number three top-selling basketball DVD, amazon.com, CBS Sports’

16

“Online DVD Store,” and wal-mart.com, on which the description of the 1995 championship

17

game includes the following: “The following content was provided by the publisher . . . The

18

Bruins held off the Razorbacks for a convincing 89-78 victory as Ed O'Bannon, the

19
tournament's Most Outstanding Player, led the Bruins back to the top of the college basketball
20
21
22

mountain as the 1995 National Champions.”
38.

As an additional example, a DVD of the 1995 Championship game, featuring

23

Mr. O’Bannon and other Antitrust Damages Class members, is available for rental from

24

Blockbuster Video and Netflix.

25
26

39.

As another example of formats in which Antitrust Damages Class members’

images, likenesses and/or names are being utilized subject to the anticompetitive restraints

27
detailed herein, on one of the NCAA’s on-line photo stores, at least three images of Mr.
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 12 -

1

O’Bannon are offered for sale. Interested purchasers must call the website’s operator to discuss

2

pricing options. The photos are described as follows: “UCLA center George Zidek (25) and

3

Oklahoma State center Bryant Reeves (50) and UCLA forward Ed O'Bannon (31) during the

4
NCAA Final Four basketball championship semifinal game held in Seattle, WA at the
5
6

Kingdome.”; “UCLA forward Ed O'Bannon (31) and Arkansas center Dwight Stewart (15)

7

during the NCAA Men's National Basketball Final Four championship game held in Seattle,

8

WA at the Kingdome. UCLA defeated Arkansas 89-78 for the title. O'Bannon was named

9

MVP for the tournament.”; “UCLA’s Ed O'Bannon turns cameraman as he cuts the net

10
11

following UCLA’s 89-78 victory over Arkansas in the Division I Men’s Basketball
Championship April 3, 1995 in Seattle, Washington. O'Bannon was named MVP of the

12
13
14

tournament.”
40.

As another example of formats in which Antitrust Damages Class members’

15

images, likenesses and/or names are being utilized subject to the anticompetitive restraints

16

detailed herein, the NCAA and its partner TEM also offer for sale to corporate advertisers and

17

others a “stock footage” clip running 1 minute and 7 seconds that features Mr. O’Bannon’s

18

performance in the 1994-95 NCAA championship game, as well as interview footage with Mr.

19
O’Bannon and others. The clip is described as follows: “Ed O'Bannon helps carry UCLA in
20
21

the 1995 Men's NCAA Division I Basketball Championship against Arkansas.” It appears that

22

at least one additional clip featuring Mr. O’Bannon (titled “1995 UCLA vs. Missouri Ed

23

O’Bannon (#31)”) is available. Interested parties must contact Thought Equity for pricing,

24

which appears to vary depending on intended usage.

25
26

41.

As another example of formats in which Antitrust Damages Class members’

images are being utilized subject to the anticompetitive restraints detailed herein, Mr.

27
O’Bannon’s likeness is utilized by the NCAA’s business partner and Defendant Electronic Arts,
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 13 -

1

Inc. as a part of its NCAA Basketball 09 video game’s “Classic Teams” feature (as described

2

more herein) where game players can select Mr. O’Bannon’s 1995 UCLA team.

3

42.

As another example of formats in which Antitrust Damages Class members’

4
images, likenesses and/or names are being utilized subject to the anticompetitive restraints
5
6
7
8
9
10
11

detailed herein, UCLA games featuring Mr. O’Bannon also are periodically rebroadcast on
ESPN Classic.
43.

On information and belief, Mr. O’Bannon’s image, likeness and/or name has been

used and sold in additional ways for additional uses via the licensing entities such as Defendant
CLC and TEM described herein.
44.

As a result of the federal antitrust violations described herein, Antitrust Plaintiff

12
13
14
15
16

O’Bannon was injured in his business or property, and was unfairly deprived of compensation
in connection with the use and sale of his image, likeness and/or name.
Oscar Robertson
45.

Plaintiff Oscar P. Robertson is a resident of Cincinnati, Ohio. It is impossible to

17

overstate Mr. Robertson's continuing stature in the game of basketball. He is generally

18

considered the greatest all-around player in the history of the sport. In 2000, he was named

19
20

"Player of the Century" by the National Association of Basketball Coaches in recognition of his
spectacular and unmatched body of work at the collegiate, professional, and Olympic levels.

21
22
23
24
25
26
27

Additionally, as described below, he was at the forefront of players' rights issues and forever
transformed the business of professional basketball via antitrust litigation that resulted in the
establishment of today's free-agent system.
46.

In his remarkable collegiate career, Mr. Robertson competed on the University

of Cincinnati's men's basketball team in the 1957-58, 1958-59, and 1959-60 seasons. He was
the first player in history to lead the NCAA in scoring for three straight years, and he finished

28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 14 -

1

with a career average of 33.8 points per game. Mr. Robertson also was the first player in

2

NCAA history to win National College Player of the Year honors three times. He was a

3

three-time first team All-American, and led the University of Cincinnati to two “Final Four”

4
appearances and a stunning 79-9 record over his three years of collegiate competition.
5
47.

6

At the professional level, Mr. Robertson was an NBA star from 1960-61 to

7

1973-74, playing 10 years with the Cincinnati Royals (now the Sacramento Kings), and

8

four with the Milwaukee Bucks. He is the only player in NBA history ever to average a

9

“triple double” (double figures in scoring, 30.8 points per game; assists, 11.4 per game;

10
11

and rebounding, 12.5 per game) for an entire season, 1961-62. Mr. Robertson is by a wide
margin the all-time NBA leader in career triple-double games with 181 and single-season

12
13
14

triple-double games with 41 (1961-62). He also was the first player to lead the NBA in
scoring average (29.2) and assists average (9.7) in the same season, 1967-68. Mr.

15

Robertson led the Bucks to the 1971 NBA championship and three additional playoff

16

appearances including the NBA finals in 1974, and led the Royals to six consecutive

17

playoff appearances, 1962-1967. He was named the NBA's Most Valuable Player in 1964,

18

NBA Rookie of the Year, 1961, selected to 12 consecutive NBA All-Star Teams from

19
1961-1972, and named All-Star Game MVP 1961, 1964, 1969. He set a career record
20
21
22

with 9887 assists /9.5 average per game which stood for 17 years, and ranks among alltime NBA scoring leaders with 26,710 points I 25.7 average.
48.

23

Mr. Robertson was the co-captain of undefeated, gold-medal winning 1960

24

U.S. Olympic Team, acknowledged as one of the greatest basketball teams ever, and was

25

the team’s co leading scorer.

26
27

Some of Mr. Robertson's numerous honors and awards include the following:
•

Selected Player of the Century by National Association of Basketball Coaches

28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 15 -

1

•

Inducted in Naismith Memorial Basketball Hall of Fame, 1979

2

•

Inducted in International Basketball (FIBA) Hall of Fame, 2009

3

•

Inducted in National Collegiate Basketball Hall of Fame, 2006

•

Inducted in Olympic Games Hall of Fame

4
5
6

• Named one of NBA’s 50 Greatest Players of All Time, 1997

7

•

Named one of 20th Century’s greatest athletes by Sports Illustrated

8

•

Named one of the top ten basketball players of the 20th Century by the Associated
Press, 1999

•

Named one of five top college basketball players of the 20th Century by Sports
Illustrated, 1999

•

Selected by ESPN as one of Fifty Greatest Athletes of the 20th Century, 1999

•

Honored by the NCAA as one of the premier student-athletes of all time

•

US Basketball Writers Association renamed its Player of the Year award the Oscar
Robertson Trophy in 1998

9
10
11
12
13
14
15

49.

Mr. Robertson was the President of the NBA Players Association from 1965-1974.

16
17
18

“The Oscar Robertson Rule” was instituted as a result of antitrust litigation that he initiated
through the NBAPA. The litigation, among other things, sought to end the option clause that

19

bound a player to a single NBA team in perpetuity, and its settlement set the stage for free

20

agency in the NBA.

21
22

50.

Mr. Robertson competed pursuant to the NCAA's rules and regulations, and

has been deprived of compensation by Defendants and their co-conspirators for the

23
continued use of his image following the end of his intercollegiate athletic career. Mr.
24
25

Robertson signed one or more of the release forms discussed herein (or the precursors to

26

them, including scholarship and eligibility papers that the NCAA has interpreted as a

27

release of the student-athlete's rights with respect to his image, likeness and/or name in

28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 16 -

1

connection with merchandise sold by the NCAA, its members, and/or its licensees and

2

licenses granted by the NCAA or its members with respect to broadcasts/rebroadcasts of

3

Division I men’s basketball games).

4
51.

Mr. Robertson's image, likeness and/or name along with those of other

5
6

Antitrust Damages Class members, is being offered for sale and/or used during the

7

Antitrust Class Period in at least the ways described below, without informed consent from

8

him and without compensation paid to him.

9
10
11

52.

For example, his collegiate image is being licensed and sold to this day in

various trading card sets. In a 2009 set issued by the Upper Deck Company, known as the
“Greats of the Game” set, Mr. Robertson's image was used and licensed in conjunction with at

12
13
14

least four cards, identified by Upper Deck as the “Greats of the Game”, “Great of the Game
Auto,” “Greats of the Game var l,” and “Greats of the Game var 2” Oscar Robertson cards,

15

all bearing card number 35. The front of the cards feature an action shot of Mr. Robertson,

16

and the back provides various information including stating “Big O’ was the type of player

17

who justified restless nights for opponents prior to game and nightmares afterward. He

18
19

ignited the Bearcats to two Final Fours and locked down 14 NCAA records while Cincinnati
rolled to a 79-9 mark.”

20
21

53.

The “Greats of the Game” cards described above featuring Mr. Robertson's

22

image bear the logo of defendant CLC. In a press release dated April 8, 2010, Upper Deck

23

and Defendant CLC stated the following: “[T]he Upper Deck Company is proud to announce

24

the release of its first collegiate-focused sports trading card set: 2010 Great of the Game

25

Basketball. With its recently inked exclusive contract with The Collegiate Licensing

26

Company (CLC), Upper Deck pulled out all the stops with its slam-dunk launch featuring

27
some of the greatest collegiate roundball stars in history,” The press release continues that
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 17 -

1

“[t]he 200-card base set is chock full of the biggest names who have ever played collegiate

2

basketball … Beyond the aforementioned base-level cards, Upper Deck’s Greats of the Game

3

Basketball brings collectors some of the most sought-after insert cards ever assembled. The

4
memorabilia insert card lineup is entitled ‘Old School Swatches’ … “The press release
5
6

further quotes David Kilpatrick, Vice President of Non­ Apparel Marketing for defendant

7

CLC as stating: “ The collegiate institutions and CLC are looking forward to working closely

8

with Upper Deck to maximize the tremendous opportunities that exist for licensed collegiate

9

trading cards.”

10
11

54.

In another 2009 set issued by the Upper Deck Company in conjunction with

defendant CLC, known as the “Old School” set and as identified in the press release

12
13
14

detailed above, Mr. Robertson's image was used on at least three cards, identified as the
“Old School” card (bearing card number 159), the “Old School Auto” card (bearing card

15

number 159), and the “Old School Swatches” card (bearing card number OS-33). These

16

cards bear actions photos of Mr. Robertson on the front and back, and include portions of

17

his cut-up uniforms in various colors. The back of the cards state: “ You have received a

18

trading card with Oscar Robertson Game-Used basketball memorabilia. The

19
memorabilia has been certified as having been used in an official basketball game. We
20
21

hope you enjoy this piece of basketball history, as we continue to keep you as close as

22

you can get.” The card bears the signature of Richard P. McWilliam of The Upper Deck

23

Company, Inc., and bears the logo of defendant CLC.

24
25
26

55.

As another example, defendant CLC participated in another trade card

licensing deal, this time with the trading card company Donruss, and again using Mr.
Robertson’s collegiate image as well as cut-up pieces of his uniform. In the 2008 Sports

27
Legends set, Mr. Robertson’s image was used on the front and back of a card, and the
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 18 -

1

card states on the back that “[t]he enclosed piece of material was personally worn by

2

Oscar Robertson. The material was obtained and is guaranteed by Donruss Playoff L.P.”

3

The card is identified as card 7. The card bears the logo of defendant CLC.

4
56. Another Donruss-issued card featuring Mr. Robertson's image is identified as a
5
6

2008 Sports Legends/College Heroes set again using Mr. Robertson's collegiate image as

7

well as cut­ up pieces of his uniform.

8

back of a card, and the card states on the back that “[t]he enclosed piece of material was

9

personally worn by Oscar Robertson. The material was obtained and is guaranteed by

10
11

Mr. Robertson's image was used on the front and

Donruss Playoff L.P.” The card is identified as card “CH-6” and 109/250. The card
bears the logo of defendant CLC.

12
13
14

57.

Copies of the front and back of the trading cards discussed above, including

those containing cut-up pieces of Mr. Robertson's uniforms, are set forth as follows:

15
16
17
18
19
20
21
22
23
24
25
26
27
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 19 -

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 20 -

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 21 -

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 22 -

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19

(Material in center of card states: “The enclosed piece of materially was personally worn by

20
21

Oscar Robertson. The material was obtained and is guaranteed by Donruss Playoff L.P.)

22
23
24
25
26
27
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 23 -

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 24 -

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 25 -

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 26 -

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18

58.

Another example of a format in which Antitrust Damages Class members images,

19
20
21

likenesses and/or names are being utilized subject to the anticompetitive restraints detailed
herein is the NCAA's On Demand on-line store, operated in connection with its for-profit

22

business partner Thought Equity Motion (1EM). The NCAA 1959 Division I semi-final game

23

between the University of Cincinnati and the University of California featuring Mr. Robertson

24

is offered for sale in this format for $150. The 1959 NCAA regional final game between

25

Cincinnati and Kansas State featuring Mr. Robertson is offered for sale for $150. The 1960

26
NCAA regional final game between Cincinnati and California featuring Mr. Robertson is
27
28

offered for sale for $150. The 1960 NCAA regional game between Cincinnati and Kansas
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 27 -

1

featuring Mr. Robertson is offered for $150. Another example of a format in which Antitrust

2

Damages Class members’ images, likenesses and/or names are being utilized subject to the

3

anticompetitive restraints detailed herein is the NCAA’s on-line photo store. At least one

4
image of Mr. Robertson is offered for sale in this format at prices ranging from $15 to
5
6

$200. On another photo site run by Replay Photos, one of the NCAA's and the University

7

of Cincinnati’s business partners, another photograph of Mr. Robertson is available for sale

8

at prices ranging from $15.95 to $179.95. Another image of Mr. Robertson is offered for

9

sale on that site, identified as of the site’s “top 10 photos,” with pricing again beginning at

10
11

$15.95.
59.

Another example of a format in which Antitrust Damages Class members’

12
images, likenesses and/or names are being utilized subject to the anticompetitive restraints
13
14

detailed herein is “stock footage” offered by the NCAA and its partner TEM. They offer

15

for sale to corporate advertisers and others a “stock footage” film clip that features Mr.

16

Robertson’s performance in the NCAA tournament and captioned “[m]ontage featuring

17

Oscar Robertson of Cincinnati making lay­ups and a basket off a rebound.” Interested

18
19

parties must contact TEM for pricing, which appears to vary depending on intended usage.
The NCAA and TEM offer another film clip for sale captioned “Bird’s-eye view of Oscar

20
21

Robertson of Cincinnati getting a pass and making a basket.” The NCAA and TEM offer

22

another film clip for sale captioned"[m]ontage featuring NCAA highlights of Oscar

23

Robertson of Cincinnati:' The NCAA and TEM offer another film clip for sale captioned

24

“[m]ontage featuring Oscar Robertson of Cincinnati taking it all the way despite defense.”

25
26

60.

On information and belief, Mr. Robertson's image, likeness and/or name has

been used and sold in additional ways for additional uses via the licensing entities such as

27
Defendant CLC and TEM described herein.
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 28 -

1
2
3

61.

As a result of the federal antitrust violations described herein, Plaintiff

Robertson was injured in his business or property, and was unfairly deprived of
compensation in connection with the use and sale of his image, likeness and/or name.

4
William Russell
5
6

62.

Antitrust Plaintiff William F. (“Bill”) Russell is a resident of Seattle, Washington.

7

Mr. Russell is universally acknowledged as one of the very greatest basketball players in

8

history. He competed on the University of San Francisco (“USF”) varsity men's basketball team

9

in this District in the 1953-54, 1954-55 and 1955-56 seasons. During his college career at

10
11

USF, Mr. Russell was the centerpiece of an effort to turn an unranked team in his first year to a
two-time national championship team, with a 56-game winning streak, in the following two

12
13
14

years. In the 1954-55 NCAA postseason tournament, Mr. Russell was named the Most
Outstanding Player of the Final Four. Upon graduating, Mr. Russell played in the 1956

15

Olympics in Melbourne, Australia, leading the United States to a Gold Medal. His career had

16

only just begun. He continued on to play for the NBA's Boston Celtics for the remainder of his

17

career, where he won a remarkable 11 NBA championships in 13 years, a number that has never

18

since been approached. Mr. Russell is a five-time NBA Most Valuable Player, 12-time NBA

19
All-Star, the second all-time leading rebounder in NBA history, and was named one of the 20
20
21

greatest athletes of all time by ESPN. His number 6 jersey was retired by the Boston Celtics in

22

1972 and he was inducted into the Basketball Hall of Fame in 1975. Mr. Russell's

23

accomplishments including beyond athletics were further recognized in 2011, when President

24

Obama awarded him with the highest honor a civilian can receive in the United States, the

25

Presidential Medal of Freedom.

26

63. Mr. Russell competed pursuant to the NCAA’s rules and regulations, and has

27
been deprived of compensation by Defendants and their co-conspirators for the continued
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 29 -

1

use of his image following the end of his intercollegiate athletic career. Mr. Russell signed

2

one or more of the release forms discussed herein (or the precursors to them, including

3

scholarship and eligibility papers that the NCAA has interpreted as a release of the student-

4
athlete’s rights with respect to his image, likeness and/or name in connection with
5
6

merchandise sold by the NCAA, its members, and/or its licensees).

7

64. Mr. Russell's image, likeness and/or name, along with those of other Antitrust

8

Damages Class members, is being offered for sale and/or used during the Antitrust Class

9

Period in at least the ways described below, without informed consent from him and without

10
11

compensation paid to him.

For example, on the NCAA's On Demand on-line store,

operated in connection with its for-profit business partner Thought Equity Motion, a 1955

12
13
14

NCAA national championship game featuring University of San Francisco vs. La Salle is
offered for sale at $150 per DVD, or via bulk orders for 25 or more DVDs at pricing

15

available on request.

16

University of San Francisco is offered for sale at $150 per DVD, or via bulk orders for 25

17

or more DVDs at pricing available on request. Similar materials are available for the 1956

18
19

A 1955 NCAA national semi-final game featuring Colorado vs.

NCAA championship game featuring University of San Francisco vs. Iowa, the NCAA
regional final game featuring University of San Francisco vs. Utah, and the national

20
21

semifinal game vs. Southern Methodist.

22

65. The championship game is also offered for sale via other outlets, for example,

23

via efootage.com, which licenses out the footage of the game for varying prices depending

24

on the use and length of footage.

25
26

66. On Thought Equity Motion's footage licensing website, at least 54 video-clips
featuring Mr. Russell's collegiate images are currently available for licensing with “custom

27
pricing.”
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 30 -

1

67. As another example of formats in which Antitrust Damages Class members’

2

images, likenesses and/or names are being utilized subject to the anticompetitive restraints

3

detailed herein, on one of the NCAA’s on-line photo stores, at least four images of Mr.

4
Russell are offered for sale. On NCAAPhotos.com, an image with the caption “University
5
6

of San Francisco’s Bill Russell (6) gets a ride off the court by fans after defeating La Salle

7

77-63 to win the NCAA National Basketball title in Kansas City, MO…” is offered for sale

8

at price points ranging from $15 to $200.

9

teammates with the national championship trophy is available at the same price points. At

10
11

A team photo featuring Mr. Russell and his

least two additional images of Mr. Russell in his USF uniform are for sale via Getty
Images' website, and upon information and belief, Getty Images has had a contractual

12
13
14

relationship with the NCAA relating to photo sales.
68. Additionally, Mr. Russell's image, likeness and/or name has been used in

15

replays of the championship game and clips from the game including on the ESPN Classic

16

network, as well as on broadcasts of University of San Francisco basketball games during

17

telecasts of West Coast Conference games including within the last two years.

18
19

69. Upon information and belief, Mr. Russell's image, likeness and/or name has
been used and sold in additional ways for additional uses via the licensing entities such as

20
21

Defendant CLC and TEM described herein.

22

70. Additionally, Defendant EA utilized Mr. Russell's name, image and/or likeness

23

in connection with its NCAA licensed videogames, including in 2009. In a November 12,

24

2008 interview, Novell Thomas, EA's Associate Producer for NCAA Basketball 09 stated

25

the following:

26
27

However, rather than talking about the 2008-2009 teams, I'm going to
take you back to the past and talk about classic teams.
…

28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 31 -

1
The Tournament of Legends is a customizable, 64 team, single
elimination tournament. Top teams from the 50's, 60's, 70's, 80's, 90's
and 2000's are selectable. Coming up with and nailing down the
legendary teams was not an easy process. A lot of time was spent
researching the best teams and players from the various eras. Some of
the factors we looked at were: championships won, win/loss records,
team personnel and memorable team and player performances. To
ensure that we had the correct teams selected, we leveraged our
partners and contacts at ESPN and Blue Ribbon. We also got Basketball

2
3
4
5
6

Hall of fame contributor, Dick Vitale’s thoughts and recommendations after all, he's been around college basketball for years and has seen all of
these teams and players first hand.

7
8

Here’s a breakdown of the various players and teams throughout the
various eras. I apologize in advance for not being able to include
names:

9
10
11

50’s ....One of the best players of all time played during this era. The
University of San Francisco's center, #6, is arguably one of the best
players to play that position. He won two championships and many
many more at the professional level. Any player who averages 20
points and 20 rebounds per game during his college career, is
definitely worth playing with.

12
13
14
15
16

71. As a result of the federal antitrust violations described herein, Antitrust Plaintiff
Russell was injured in his business or property, and was unfairly deprived of compensation in

17
connection with the use and sale of his image, likeness and/or name.
18
19

Harry Flournoy
72.

20

Antitrust Plaintiff Harry Flournoy is a resident of McDonough, Georgia. Mr.

21

Flournoy was the captain of the 1966 NCAA men’s Division I basketball champion Texas

22

Western (now University of Texas-El Paso a/k/a “UTEP”) team, and competed on the team

23
24

during the 1963-64, 1964-65, and 1965-66 seasons. In the 1965-66 season, Mr. Flournoy lead
the team in rebounding and shooting percentage, and was one of the top rebounders in the

25
26
27
28

nation.
73.

In the championship game, Texas Western defeated the University of Kentucky in

a game that to this day is frequently termed as the most socially significant college basketball
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 32 -

1

game ever played. Texas Western’s legendary coach Don Haskins utilized for the first time in

2

NCAA championship history an all-black starting lineup. The team’s experience was

3

documented in the popular 2006 movie “Glory Road,” created by Walt Disney Pictures and

4
produced by Jerry Bruckheimer. The game is credited with forever changing college
5
6

basketball, particularly in the South, and the team’s dignity throughout the season is credited as

7

a source of inspiration for generations of players. Legendary NBA coach Pat Riley (who played

8

on the Kentucky team) has called the game the “Emancipation Proclamation of 1966 . . . at least

9

in sports.” As the El Paso Times noted in 2010, “Today, the game remains one of the most-

10
11

discussed sporting events in history.”
74.

In 2003, ESPN reported:

12
In the years immediately after Texas Western's title, the integration
of college sports took a great leap forward. Between 1966 and
1985, the average number of blacks on college teams jumped from
2.9 to 5.7.

13
14
15

At Northern colleges, where the unwritten rule for coaches had
been, "Two blacks at home. Three on the road. And four when
behind", things changed quickly.

16
17

Blacks now were recruited as reserves as well as starters. Athletes
who had been directed to small black schools now were being
lured to major state universities.

18
19

The bigger change, of course, came in the South. In the 1966-67
season, every Southern conference, even the SEC, had integrated
basketball teams. "It was quite clear after March 1966 that
Southern basketball teams would have to change or become
increasingly noncompetitive nationally," wrote historian Charles
Martin.

20
21
22
23
24

75.

In 2007, Mr. Flournoy’s 1966 Texas Western Team was inducted into the James

25

Naismith Basketball Hall of Fame, along with other luminaries such as L.A. Lakers coach Phil

26

Jackson, and Mr. Flournoy delivered the acceptance speech on behalf of his teammates and

27

coaches. In 2007, Mr. Flournoy also addressed the United States troops with his teammates on

28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 33 -

1

teamwork and diversity issues, focusing on the strength of a unit based on collective individual

2

talents and not outward appearances throughout Germany, England, and the Netherlands while

3

touring with Armed Forces Entertainment. Additionally in 2007, Mr. Flournoy was inducted

4
into the Texas Black Sports Hall of Fame. In 2008, Mr. Flournoy was named a “Texas Hero”
5
6
7
8
9
10
11

by the NAACP. In 2002, Mr. Flournoy also was inducted in the University of Texas, El Paso
Sports Hall of Fame.
76.

The NCAA has featured the Texas Western team in its NCAA Hall of Champions

in Indianapolis. Additionally, during broadcasts of the yearly NCAA tournament, the NCAA
has run commercials for its NCAA on-demand and DVD website store featuring the Texas
Western team. The NCAA also prominently features the 1966 Texas Western team on the first

12
13
14

page of its DVD / on-demand website in connection with products for sale utilizing the names,
images, and/or likenesses of the members of the Texas Western and Kentucky teams, including

15

Mr. Flournoy. The site elsewhere states: “On March 19, 1966, Texas Western College, now

16

known as the University of Texas at El Paso (UTEP), put an all-black starting five on the floor

17

for the first time in an NCAA basketball championship. That night the Texas Western Miners . .

18

. defeated coach Adolph Rupp's #1 ranked all-white Kentucky Wildcats, 72-65.”

19
77.

Mr. Flournoy competed pursuant to the NCAA’s rules and regulations, and has

20
21

been deprived of compensation by Defendants and their co-conspirators for the continued use of

22

his image following the end of his intercollegiate athletic career. Mr. Flournoy signed one or

23

more of the release forms discussed herein (or the precursors to them, including scholarship and

24

eligibility papers that the NCAA has interpreted as a release of the student-athlete’s rights with

25

respect to his image, likeness and/or name in connection with merchandise sold by the NCAA,

26

its members, and/or its licensees).

27
78.

Mr. Flournoy’s image, likeness and/or name, along with those of other Antitrust

28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 34 -

1

Damages Class members, is being offered for sale and/or used during the Antitrust Class Period

2

in at least the ways described below, without informed consent from him and without

3

compensation paid to him. For example, on the NCAA’s On Demand on-line store, operated in

4
connection with its for-profit business partner Thought Equity Motion, a two-DVD pack is
5
6

offered for sale featuring a DVD of the 1966 championship game and the Glory Road movie for

7

$44.99. The individual game DVD is one of the NCAA’s “Featured Games” offered for sale at

8

$24.99. A 1966 NCAA regional final game featuring Texas Western vs. Kansas University is

9

offered for sale at $150 per DVD, or via bulk orders for 25 or more DVDs at pricing available

10
11

on request. A 1966 NCAA national semi-final game featuring Texas Western vs. the University
of Utah is offered for sale at $150 per DVD, or via bulk orders for 25 or more DVDs at pricing

12
13
14

available on request.
79.

The NCAA also offers one-time viewings of the 1966 championship game via its

15

“NCAA On Demand Theatre” and “Watch Now” on-demand streaming video features, with

16

pricing for such offerings listed at “starting at $3.99.” The game is the first game listed in the

17

list of “our top 50 NCAA games.”

18

80.

The championship game is also offered for sale via myriad other outlets. For

19
example, via Amazon.com (for $24.99), Walmart.com ($38.21 for the game plus the Glory
20
21

Road movie; $13.86 for the game); CBS Sports on-line DVD store ($25.00 for the game plus

22

the Glory Road move, and $14.95 for the game, noting that “Other key players for the Miners

23

included Harry Flournoy . . .”). The game also is available for rental via Netflix.

24
25
26

81.

As another example of formats in which Antitrust Damages Class members’

images, likenesses and/or names are being utilized subject to the anticompetitive restraints
detailed herein, on one of the NCAA’s on-line photo stores, at least three images of Mr.

27
Flournoy are offered for sale. On NCAAPhotos.com, an image with the caption “Bobby Joe
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 35 -

1

Hill (14) and Harry Flournoy (44) are surrounded . . .” is offered for sale at price points ranging

2

from $15 to $200. A team photo featuring Mr. Flournoy and his teammates with the national

3

championship trophy is available at the same price points. An image featuring Mr. Flournoy

4
and certain teammates leaving the floor with the trophy is offered at the same price points. An
5
6

image of Mr. Flournoy and his team in a huddle at a time out is offered for sale at the same

7

price points. At least two additional images of Mr. Flournoy playing in the championship game

8

are for sale via Getty Images’ website, and upon information and belief, Getty Images has had a

9

contractual relationship with the NCAA relating to photo sales.

10
11

82.

Mr. Flournoy’s likeness additionally has been used in Defendant EA’s video

games, such as NCAA 09 in its Classic Teams feature, as well as in one or more additional

12
13
14
15
16
17
18

video games authorized by the NCAA.
83.

Additionally, Mr. Flournoy’s image, likeness and/or name has been used in replays

of the championship game and clips from the game including on the ESPN Classic network.
84.

Upon information and belief, Mr. Flournoy’s image, likeness and/or name has

been used and sold in additional ways for additional uses via the licensing entities such as
Defendant CLC and TEM described herein.

19
85.

As a result of the federal antitrust violations described herein, Antitrust Plaintiff

20
21
22
23
24
25
26

Flournoy was injured in his business or property, and was unfairly deprived of compensation in
connection with the use and sale of his image, likeness and/or name.
Thad Jaracz
86.

Antitrust Plaintiff Thad Jaracz is a resident of Crestwood, Kentucky. Mr. Jaracz

was a member of, and a three year starter for, the University of Kentucky basketball team in the
1965-66, 1966-67, and 1967-68 seasons under legendary coach Adolph Rupp, and competed for

27
Kentucky in the Southeastern Conference (“SEC”). Mr. Jaracz competed in the 1966
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 36 -

1

championship game as described above with respect to Mr. Flournoy, and was Kentucky’s

2

starting center. Mr. Jaracz was an All-American and All-SEC player in the 1965-66 season.

3

Mr. Jaracz was appointed as Team Captain for the 1968 season. During Mr. Jaracz’s career, his

4
Kentucky teams won two SEC championships, enjoyed a number one national ranking, and
5
6
7

finished as the NCAA national champion runners-up in 1966.
87.

Mr. Jaracz was drafted by the Boston Celtics in 1968, and drafted by the United

8

States Army in 1969. He served 21 years as an Army Officer and retired as a Lieutenant

9

Colonel in 1990.

10
11

88.

Mr. Jaracz competed pursuant to the NCAA’s rules and regulations, and has been

deprived of compensation by Defendants and their co-conspirators for the continued use of his

12
13
14

image following the end of his intercollegiate athletic career. Mr. Jaracz signed one or more of
the release forms discussed herein (or the precursors to them, including scholarship and

15

eligibility papers that the NCAA has interpreted as a release of the student-athlete’s rights with

16

respect to his image, likeness and/or name in connection with merchandise sold by the NCAA,

17

its members, and/or its licensees).

18

89.

Mr. Jaracz’s image, likeness and/or name, along with those of other Antitrust

19
Damages Class members, is being offered for sale and/or used during the Antitrust Class Period
20
21
22
23

in at least the ways described below, without informed consent from him and without
compensation paid to him.
90.

Mr. Jaracz’s image, likeness and/or name is being offered for sale and use in

24

connection with the Texas Western vs. Kentucky game as described above with respect to Mr.

25

Flournoy and the description of game films and clips and myriad distribution channels.

26

91.

Additionally, Mr. Jaracz’s image, likeness and/or name is offered for sale in

27
connection with additional games on the NCAA’s website, i.e., the 1966 Kentucky vs. Duke
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 37 -

1

national semi-final game (offered for $150 or orders of 25 or more with pricing available on

2

request); the 1966 Kentucky vs. Michigan NCAA tournament regional game (same pricing);

3

and the 1968 Kentucky vs. Ohio State NCAA regional tournament game (same pricing).

4
92.

Mr. Jaracz’s image, likeness and/or name is also offered for sale and use on one of

5
6

the NCAA’s photo store websites, NCAAPhotos.com, i.e., one that is captioned “Texas

7

Western ""UTEP"" Bobby Joe Hill (14) and Harry Flournoy (44) are surrounded by Kentucky's

8

Larry Conley (40), Tommy Kron (30) and Thad Jaracz (55) during the NCAA Men's National

9

Basketball Final Four championship

10
11

game . . .” and offered at price points ranging from $15 to $200, and another captioned “Kentucky
forward/center Thad Jaracz (55) during the NCAA Men's National Basketball Final Four

12
13
14
15
16
17
18

championship game against Texas Western ""UTEP"" held in College Park, MD, at the Cole
Fieldhouse.” (same price points).
93.

Mr. Jaracz’s image, likeness, and/or name also is utilized in connection with one

or more video games licensed by the NCAA.
94.

Upon information and belief, Mr. Jaracz’s image, likeness and/or name has been

used and sold in additional ways for additional uses via the licensing entities such as Defendant

19
CLC and TEM described herein.
20
21

95.

As a result of the federal antitrust violations described herein, Antitrust Plaintiff

22

Jaracz was injured in his business or property, and was unfairly deprived of compensation in

23

connection with the use and sale of his image, likeness and/or name.

24
25
26

David Lattin
96.

Antitrust Plaintiff David Lattin is a resident of Houston, Texas. Mr. Lattin (known

as “Big Daddy D”) was one of the stars of the 1966 NCAA men’s Division I basketball

27
champion Texas Western (now University of Texas-El Paso a/k/a “UTEP”) team described
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 38 -

1

above in the section regarding Antitrust Plaintiff Flournoy, and competed on the team during

2

the 1965-66 and 1966-67 seasons. In the championship season, Mr. Lattin was the second-

3

leading scorer on the team, and was the team’s leading rebounder in 4 out of 5 of the NCAA

4
tournament games, including the championship game. In the championship game, Mr. Lattin
5
6

scored 16 points and had 9 rebounds, and had a pivotal, game-changing slam dunk whose

7

importance was highlighted in the Glory Road movie, and continues to resonate today as one of

8

the most significant plays in NCAA tournament history.

9
10
11

97.

Mr. Lattin was named an All-American during both his 1965-66 and 1966-67

seasons. He established and still holds a number of school NCAA tournament records. Over
the eight NCAA tournament games in which he participated in during two seasons, Mr. Lattin

12
13
14

averaged 19.5 points per game and 11 rebounds per game.
98.

In 1967, Mr. Lattin was a first round draft pick of the San Francisco (now Golden

15

State) Warriors, and played professionally for eight seasons including with the world-famous

16

Harlem Globetrotters.

17
18

99.

In 2007, Mr. Lattin along with teammates including Antitrust Plaintiff Flournoy

addressed the United States troops on teamwork and diversity issues, as discussed above,

19
throughout Germany, England, and the Netherlands while touring with Armed Forces
20
21

Entertainment.

22

100. Mr. Lattin competed pursuant to the NCAA’s rules and regulations, and has been

23

deprived of compensation by Defendants and their co-conspirators for the continued use of his

24

image following the end of his intercollegiate athletic career. Mr. Lattin signed one or more of

25

the release forms discussed herein (or the precursors to them, including scholarship and

26

eligibility papers that the NCAA has interpreted as a release of the student-athlete’s rights with

27
respect to his image, likeness and/or name in connection with merchandise sold by the NCAA,
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 39 -

1
2
3

its members, and/or its licensees).
101. Mr. Lattin’s image, likeness and/or name, along with those of other Antitrust
Damages Class members, is being offered for sale and/or used during the Antitrust Class Period

4
in at least the ways described below, without informed consent from him and without
5
6

compensation paid to him.

7

102. Mr. Lattin’s image, likeness and/or name has been used in all of the DVD, on-

8

demand, video game and classic game broadcast products as discussed above in the section

9

regarding Antitrust Plaintiff Flournoy, and distributed through the same channels.

10
11

103. Additionally, Mr. Lattin’s image, likeness and/or name has been used in several
images offered for sale by the NCAA on one of its photo stores located at NCAAPhotos.com.

12
13
14

For example, a photo captioned “David Lattin (42) and a Texas Western teammate compete for
control of a rebound” is offered for sale at various price points ranging from $15 to $200.

15

Additionally, Mr. Lattin’s image, likeness and/or name is used in the team photo described

16

above, as well as the huddle photo described above.

17
18

104. Upon information and belief, Mr. Lattin’s image, likeness and/or name has been
used and sold in additional ways for additional uses via the licensing entities such as Defendant

19
CLC and TEM described herein.
20
21

105. As a result of the federal antitrust violations described herein, Antitrust Plaintiff

22

Lattin was injured in his business or property, and was unfairly deprived of compensation in

23

connection with the use and sale of his image, likeness and/or name.

24
25
26

Bob Tallent
106. Antitrust Plaintiff Bob Tallent is a resident of Arlington, Virginia. Mr. Tallent
played basketball for the University of Kentucky, and competed in the SEC under the legendary

27
coach Adolf Rupp through his junior year of college. He was a member of the UK team known
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 40 -

1

as "Rupp's Runts" because the two tallest members of the team were “only” 6'5". He was a

2

sophomore when they played in the finals of the 1966 NCAA Championship against Texas

3

Western, as described above.

4
107.

Mr. Tallent played one phenomenal season at the NCAA Division I George

5
6

Washington University after transferring from Kentucky, set several single-season school

7

records including for scoring (28.9 points per game), and was the fifth leading scorer in the

8

country. After his MVP season and first team All-Southern Conference selection, he was

9

drafted by teams in the NBA and ABA before an injury cut his playing career short.

10
11

108.

Mr. Tallent later served as head coach for the George Washington University team

for seven seasons (1974 – 1981), including a 20-win season in 1976. He also served for several

12
13
14
15
16
17
18

prior seasons as the school’s freshman team coach, and assistant coach. He was elected to the
George Washington Athletic Hall of Fame team in 1990. In 2001, Mr. Tallent was elected to
the George Washington All-Century basketball team.
109. Mr. Tallent competed pursuant to the NCAA’s rules and regulations, and has been
deprived of compensation by Defendants and their co-conspirators for the continued use of his
image, likeness and/or name following the end of his intercollegiate athletic career. Mr. Tallent

19
signed one or more of the release forms discussed herein (or the precursors to them, including
20
21

scholarship and eligibility papers that the NCAA has interpreted as a release of the student-

22

athlete’s rights with respect to his image, likeness and/or name in connection with merchandise

23

sold by the NCAA, its members, and/or its licensees).

24
25
26

110. Mr. Tallent’s image, likeness and/or name, along with those of other Antitrust
Damages Class members, is being offered for sale and/or used during the Antitrust Class Period
in at least the ways described below, without informed consent from him and without

27
compensation paid to him.
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 41 -

1
2
3

111. Mr. Tallent’s image, likeness and/or name has been used in all of the DVD, ondemand, video game and classic game broadcast products as discussed above in the section
regarding Plaintiff Flournoy with respect to the Texas Western vs. Kentucky game, and

4
distributed through the same channels. Mr. Tallent’s image has further been used in the
5
6
7
8
9
10
11

connection with sales regarding the other Kentucky games identified in the section above
regarding Antitrust Plaintiff Jaracz.
112. Upon information and belief, Mr. Tallent’s image, likeness and/or name has been
used and sold in additional ways for additional uses via the licensing entities such as Defendant
CLC and TEM described herein.
113. As a result of the federal antitrust violations described herein, Antitrust Plaintiff

12
13
14
15
16
17
18

Tallent was injured in his business or property, and was unfairly deprived of compensation in
connection with the use and sale of his image, likeness and/or name.
Alex Gilbert
114. Antitrust Plaintiff Alex Gilbert is a resident of St. Louis, Missouri. Mr. Gilbert
competed for the Indiana State University men’s NCAA Division I basketball team in the 197879 and 1979-80 seasons. Mr. Gilbert was a starting forward for the team described below that

19
competed in the landmark 1979-80 NCAA championship game, along with his teammate,
20
21

legendary college and NBA Hall of Fame player Larry Bird. In that game, the Indiana State

22

team competed against the Michigan State University team, led by the charismatic and

23

transcendent superstar Earvin “Magic Johnson,” who would go on to fame along with Mr. Bird

24

as one of the very greatest collegiate and professional players of all time.

25
26

115. In the 1979-80 tournament, Mr. Gilbert, playing as a starter alongside Mr. Bird,
contributed in numerous ways including in the championship game. For example, in the

27
national semifinal game against DePaul prior to the Michigan State game, Mr. Gilbert had 12
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 42 -

1

points and 5 rebounds, second only to Mr. Bird in both categories. In the regional final game

2

against Arkansas, Mr. Gilbert also had 12 points, and in the regional semi-final against

3

Oklahoma, Mr. Gilbert again had 12 points as well as 9 rebounds. In the opening round game

4
against Virginia Tech, Mr. Gilbert had 12 points to go with 7 rebounds (second only to Mr.
5
6
7

Bird).
116. In 1999, the 1978-79 team including Mr. Gilbert was inducted into the Indiana

8

State University Athletics Hall of Fame. Mr. Gilbert was chosen by the Milwaukee Bucks in

9

the 1980 NBA Draft.

10
11

117. It is impossible to overstate the importance of the 1979 championship game to the
business of college sports. In 2010, Seth Davis, the CBS Sports television studio analyst and

12
13
14
15
16
17
18
19

writer for Sports Illustrated published the book “When March Went Mad: The Game That
Transformed Basketball.” The book’s liner notes state:
On March 26, 1979, basketball as we know it was born. The NCAA
championship game played that day not only launched the epic rivalry
between Earvin “Magic” Johnson and Larry Bird, it also transformed
the NCAA tournament into a multibillion-dollar enterprise and laid
the foundation for the resurgence of the NBA. To this day, it remains
the highest-rated basketball game, college or pro, in this history of
television.
The book further states the following:

20
21
22
23
24
25
26

By one measure, the impact of the 1979 NCAA championship game
would be apparent a few days later. Nielsen Media Research reported
that the contest had generated a 24.1 rating, which meant that nearly a
quarter of all television sets in America were tuned in that night.
Thirty years later, that remains the highest Nielsen rating for any
basketball game, college or pro, in the history of the sport. Thanks to
the proliferation of channels that has taken place since then, it’s
unlikely the number will ever be surpassed by another basketball
game.
The book further states the following:

27
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 43 -

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17

The game of basketball was about to change forever. The 1979
championship game helped to catapult college basketball, and
especially the NCAA tournament, into the national consciousness.
...
The television rights fees have undergone a similar explosion. The
1979 NCAA tournament gross $5.2 million in TV revenue. That
figure doubled when NBC renewed its contract for two years in 1980.
When CBS wrested the rights from NBC prior to the 1982
tournament, it paid $48 million for three years. CBS’s price doubled
again when it forked over $96 million for another three years in 1985.
The fees grew so fast that in 1999 CBS and the NCAA agreed to an
eleven-year, $6 billion deal that commenced with the 2003
tournament.
118. In Mr. Davis’ book, he quotes Larry Bird as follows:
“We didn’t have a lot of NBA talent on our team, but we were a
team,” Bird said. “When you have a team of guys who know their
roles and stick to their roles, you can’t get any better than that. Yeah,
I was the focal point, and I was the one scoring the points and getting
the rebounds, but if it wasn’t for these other four guys with me, it
would have never worked.”
119. Mr. Gilbert competed pursuant to the NCAA’s rules and regulations, and has been
deprived of compensation by Defendants and their co-conspirators for the continued use of his
image, likeness and/or name following the end of his intercollegiate athletic career. Mr. Gilbert

18
19
20

signed one or more of the release forms discussed herein (or the precursors to them, including
scholarship and eligibility papers that the NCAA has interpreted as a release of the student-

21

athlete’s rights with respect to his image, likeness and/or name in connection with merchandise

22

sold by the NCAA, its members, and/or its licensees).

23
24

120. Mr. Gilbert’s image, likeness and/or name, along with those of other Antitrust
Damages Class members, is being offered for sale and/or used during the Antitrust Class Period

25
in at least the ways described below, without informed consent from him and without
26
27
28

compensation paid to him.
121. The NCAA through its DVD website offers the 1979 championship game for
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 44 -

1

$24.99. It additionally offers for sale a pack of all of the Final Four games from that year.

2

Additional tournament games such as the ones described above against Oklahoma and Virginia

3

Tech also are available for purchase.

4
122. Games utilizing the image, likeness and/or name of Mr. Gilbert are made available
5
6

through numerous other distribution channels. For example, the 1979 championship game is

7

available via amazon.com for $24.99, and a Final Four highlight DVD also is available for

8

$24.99. The game also is available via CBS Sports’ DVD site individually, as for $39.90 as a

9

part of a “Michigan State NCAA DVD Bundle set” including another game from the 2009

10
11

tournament and a highlight DVD. The championship game also is available for sale for $24.95
via Michigan State’s on-line DVD store, as are various Final Four highlight and bundle DVDs

12
13
14

featuring the game, and also available for sale via the Big 10 Network’s on-line DVD store.
123. The championship game is a mainstay of “classic sports” and other networks to

15

this day. As just a few examples, in 2009, ESPN Classic and ESPN2 replayed the game on

16

March 26th, April 3rd, and April 5th. The Big 10 Network replayed the game on March 24,

17

2009 and June 1, 2009.

18

124. Mr. Gilbert’s name, image, and/or likeness also has been used in connection with

19
video games authorized by the NCAA.
20
21

125. Upon information and belief, Mr. Gilbert’s image, likeness and/or name has been

22

used and sold in additional ways for additional uses via the licensing entities such as Defendant

23

CLC and TEM described herein.

24

126. As a result of the federal antitrust violations described herein, Antitrust Plaintiff

25

Gilbert was injured in his business or property, and was unfairly deprived of compensation in

26

connection with the use and sale of his image, likeness and/or name.

27
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 45 -

1
2
3

Eric Riley
127. Antitrust Plaintiff Eric Riley is a resident of Cleveland, Ohio. Mr. Riley competed

4
on the University of Michigan men’s Division I basketball team in the Big 10 Conference. Mr.
5
6

Riley was a redshirt on Michigan’s 1988-89 national championship team, and additionally

7

competed for the team in the 1989-90, 1990-91, 1991-92, and 1992-93 seasons. Mr. Riley’s

8

teams in 1991-92 and 1992-93 are famous teams known as the “Fab Five” teams, and reached

9

the NCAA championship game in both seasons. In 1991-92, Mr. Riley led the team in

10
11

rebounding and blocked shots, and was second in the Big-10 Conference in rebounding. Mr.
Riley had exceptional performances in various games including in the NCAA tournament, such

12
13
14
15

as a 15 point and 10 rebound performance in the 1991-92 tournament against Oklahoma State in
the regional finals, one of the games described below that is offered for sale.
128. The “Fab Five” was the nickname given to the Michigan 1991 recruiting class that

16

joined Mr. Riley and his teammates already at Michigan. In their freshman season, these five

17

players were starters, and along with Mr. Riley and his other teammates, the team reached the

18

national championship game and caused a nationwide sensation due to their collective youth,

19
energetic style of play, and fashion style. USA Today stated the following in 2002 with respect
20
21
22
23

to the team:
Their talent was breathtaking; their trash-talking, baggy-shorts
style endearing; their influence profound, even to this day.

25

They drew record television audiences, set fashion trends and
touched off a licensing and merchandising boom that perhaps
nudged all of college athletics along its current marketing-crazed
course.

26

...

24

27
28

The [1992 championship game against Duke] remains the mostwatched game in college basketball history, with nearly 21 million
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 46 -

1
2
3
4

homes tuned to the telecast. The [1993 championship game against
the University of North Carolina] the following year remains the
second-most-watched game, viewed in almost 20.7 million homes.
...

6

The Fab Five made the Michigan brand red-hot, and the school
cashed in. Annual athletic royalties more than tripled, from $2
million in the pre-Fab year of 1990-91 to a peak of $6.2 million in
'93-94.

7

...

8

"Kids could relate to the Fab Five and wanted to
emulate them. Wearing Michigan merchandise
became a way that you could transform yourself into
being as 'cool' as the Fab Five," says Derek Eiler of
the Atlanta-based Collegiate Licensing Co.

5

9
10
11

15

"The increase in sales of Michigan merchandise
started first in Ann Arbor and then (spread) in the
state, and then in the Midwest, and pretty soon there was Michigan
merchandise in almost every retail channel in the U.S. The trend
has continued today. Michigan is still one of only a handful of
universities that are successful selling their products at the national
level."

16

Even admissions soared

17

With the Fab Five came another kind of bump in sales.
Applications for admission went from 17,744 in 1991, the year
before the Five arrived, to 19,687 in 1996, a year after the last had
left.

12
13
14

18
19
20
21
22
23
24
25

From '91 to last year, when more than 24,000 applications poured
in, the climb was 36%.
"We've done a lot of things to make that happen. I'm reluctant to
say it was strictly athletics," says Ted Spencer, Michigan's director
of admissions. "But ... many, many would come to our table and
our sessions (at college fairs) and say, 'Boy, I want to go to
Michigan because of the Fab Five.' Not all of them were the kind
of kids we were looking for. But a number of them were the kind
of kids we were."

26
27
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 47 -

1
2
3

129. Mr. Riley was drafted by the Dallas Mavericks in the
1993 NBA draft, and competed in the NBA for five seasons for
teams including the Boston Celtics and Houston Rockets.

4
130. Mr. Riley competed pursuant to the NCAA’s rules
5
6

and regulations, and has been deprived of compensation by

7

Defendants and their co-conspirators for the continued use of his

8

image, likeness and/or name following the end of his intercollegiate athletic career. Mr. Riley

9

signed one or more of the release forms discussed herein (or the precursors to them, including

10
11

scholarship and eligibility papers that the NCAA has interpreted as a release of the studentathlete’s rights with respect to his image, likeness and/or name in connection with merchandise

12
13
14

sold by the NCAA, its members, and/or its licensees).
131. Mr. Riley’s image, likeness and/or name, along with those of other Antitrust

15

Damages Class members, is being offered for sale and/or used during the Antitrust Class Period

16

in at least the ways described below, without informed consent from him and without

17

compensation paid to him.

18

132. For example, on the NCAA’s On Demand on-line store, operated in connection

19
with its for-profit business partner Thought Equity Motion, the following NCAA tournament
20
21

games and highlight DVDs are each available for sale prices ranging from $24.99 to $150,

22

sometimes including in multi-DVD sets: 1990 Michigan vs. Illinois; 1990 Michigan vs.

23

Loyola; 1992 “Michigan Men’s Basketball Fab Five 1992” DVD; 1992 Duke Championship

24

collection (featuring various games including vs. Michigan); 1992 Final Four Highlights DVD;

25

1992 Michigan vs. Cincinnatti; 1992 Michigan vs. Duke; 1992 Michigan vs. East Tennessee

26

State; 1992 Michigan vs. Ohio State; 1992 Michigan vs. Oklahoma State; 1992 Michigan vs.

27
Temple; 1992 National Championship Box Set; 1993 Final Four Highlights DVD; 1993
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 48 -

1

Michigan vs. Coastal Carolina; 1993 Michigan vs. George Washington; 1993 Michigan vs.

2

Temple; 1993 Michigan vs. UCLA; 1993 Michigan vs. North Carolina; 1993 Michigan vs.

3

Kentucky; 1993 National Championship Box Set; “Michigan Men’s Basketball Fab Five 1993”

4
DVD; “North Carolina Basketball National Championship Collection.”
5
133. Additionally, the NCAA offers the 1992 and 1993 national championship games

6
7

featuring the Michigan teaming for one-viewing streaming video purchase at price points of

8

“$3.99 and up.”

9
10

134. Many of the game and highlights DVDs are available through myriad other
distribution outlets such as Amazon.com; walmart.com; and CBS Sports’ DVD store.

11

135. Numerous of Mr. Riley’s games have been replayed on various “classic” game

12
13

broadcasts, such as on the Big 10 Network this year and on ESPN Classic.
136. Through one of its on-line photo stores, the NCAA currently sells as least four

14
15

pictures of Mr. Riley, i.e., ones captioned “University of North Carolina center Eric Montross

16

(00) guards against University of Michigan center Eric Riley (42) during the NCAA National

17

Basketball Championship game at the Superdome in New Orleans” (offered at various pricing

18

points between $15 and $200); “University of Michigan center Eric Riley (42) muscles his way

19
into North Carolina center Eric Montross (00) during the NCAA National Basketball
20
21

Championship game at the Superdome in New Orleans, LA” (same pricing points); “University

22

of Michigan center Eric Riley (42) puts the ball up on the glass while North Carolina center

23

Eric

24

Montross (00) among others waits for the rebound during the NCAA National Basketball

25

Championship game at the Superdome in New Orleans, LA” (same pricing points); and

26

“University of North Carolina center Eric Montross (00), University of Michigan center Eric

27
Riley (42) and Michigan forward Ray Jackson (21) wait for the ball to drop in the hoop during the
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 49 -

1

NCAA National Basketball Championship game at the Superdome in New Orleans, LA” (same

2

pricing points).

3

137. Upon information and belief, Mr. Riley’s image, likeness and/or name has been

4
used and sold in additional ways for additional uses via the licensing entities such as Defendant
5
6
7

CLC and TEM described herein.
138. As a result of the federal antitrust violations described herein, Antitrust Plaintiff

8

Riley was injured in his business or property, and was unfairly deprived of compensation in

9

connection with the use and sale of his image, likeness and/or name.

10
11

Patrick Maynor
139. Antitrust Plaintiff Patrick Maynor, an individual, is a resident of Palm Beach

12
13
14

Gardens, Florida. Mr. Maynor competed on the Stanford University football team from 200408 as a linebacker, and was a three year starter. He was a Butkus Award candidate, the annual

15

award given to the top college linebacker in the nation, and was recognized as a 2008 All-

16

Pacific-10 Conference Honorable Mention linebacker.

17
18

140. In 2007, Mr. Maynor led his team with a career-high 16.5 tackles for loss and a
1.50 tackles for loss per game average that ranked second in the Pac-10 Conference and tied for

19
12th in the entire NCAA. In 2007, he also had five double-digit tackle games in 2007,
20
21

including a career-high-tying 13 versus Washington and Oregon, and 10 against UCLA as well

22

as at Oregon State and at Washington State. In 2009, Mr. Maynor spent time with the NFL’s

23

Chicago Bears in training camp.

24
25
26

141. Mr. Maynor competed pursuant to the NCAA’s rules and regulations, and has been
deprived of compensation by Defendants and their co-conspirators for the continued use of his
image following the end of his intercollegiate athletic career. Mr. Maynor signed one or more

27
of the release forms discussed herein (or the precursors to them, including scholarship and
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 50 -

1

eligibility papers that the NCAA has interpreted as a release of the student-athlete’s rights with

2

respect to his image, likeness and/or name in connection with merchandise sold by the NCAA,

3

its members, and/or its licensees).

4
142. Mr. Maynor’s image, likeness and/or name, along with those of other Antitrust
5
6

Damages Class members, is being offered for sale and/or used during the Antitrust Class Period

7

in at least the ways described below, without informed consent from him and without

8

compensation paid to him.

9
10
11

143. As an example of formats in which Antirust Damages Class members’ images,
likenesses and/or names are being used subject to the anticompetitive restraints detailed herein,
Mr. Maynor’s likeness was used by the NCAA’s business partner and co-conspirator Electronic

12
13
14

Arts, Inc. as a part of, for example, its NCAA Football 07 game, in addition to other games.
As another example of formats in which Antitrust Damages Class members’ images, likenesses

15

and/or names are being used subject to the anticompetitive restraints detailed herein, several

16

photos of Mr. Maynor are being sold in Reply Photos, i.e., one captioned “Chike Amajoyi, Sione

17

Fua, Tom Keiser and Pat Maynor of the Stanford Cardinal during Stanford's 23-10 win over the

18

San Jose State Spartans on September 20, 2008 at Stanford Stadium in Stanford, California”

19
(offered at various price points between $29.95 and $425.95); one captioned “16 September 2006:
20
21

Walt Harris, Jon Cochran, Chris Marinelli, Alex Fletcher, Jeff Edwards, Josiah Vinson, Tavita

22

Pritchard, Nate Wilcox-Fogel, Chris Horn, David Lofton, Patrick Danahy, Derek Belch, Jay

23

Ottovegio, Jim Dray, Andrew Phillips, Aaron Zagory, Leon Peralto, Marcus Rance, Will Powers,

24

Austin Yancy, Josh Catron, Pat Maynor, Matt Kopa, Brian Bulcke, Trevor Hooper, David

25

Jackson, Jason Evans and the team run out on the field after the anthem for the first time

26

during Stanford's 37-9 loss to Navy during the grand opening of the new Stanford Stadium in

27
Stanford, CA.” (same price points); and one captioned “6 October 2007: Pat Maynor, Erik Lorig,
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 51 -

1

Clinton Snyder, and Bo McNally during Stanford's 24-23 win over the #1 ranked USC Trojans in

2

the Los Angeles Coliseum in Los Angeles, CA” (same price points).

3

144. As another example of formats in which Antitrust Damages Class members’

4
images, likenesses and/or names are being used subject to the anticompetitive restraints detailed
5
6

herein, another photo of Mr. Maynor is offered for sale via Getty Images website captioned

7

“STANFORD, CA - SEPTEMBER 1: Linebacker Pat Maynor #44 of the Stanford Cardinal is

8

congratulated by teammate Tim Sims #14 after Maynor made a big play during the UCLA

9

Bruins 45-17 defeat of Stanford at Stanford Stadium September 1, 2007 in Stanford,

10
11

California.” Upon information and belief, the NCAA and/or its members have had a
contractual relationship with Getty Images allow for the sale of photographs containing the

12
13
14

images of current and former NCAA student-athletes.
145. On information and belief, Mr. Maynor’s image has been used and sold in

15

additional ways for additional uses via the licensing entities such as Defendant CLC and TEM

16

described herein.

17
18

146. As a result of the federal antitrust violations described herein, Antitrust Plaintiff
Maynor was injured in his business or property, and was unfairly deprived of compensation in

19
connection with the use and sale of his image, likeness and/or name.
20
21
22

Tyrone Prothro
147. Terrence “Tyrone” Prothro, an individual, is a resident of Tuscaloosa, Alabama

23

and a former football player for the University of Alabama, a Division I member school of the

24

NCAA. Mr. Prothro competed from 2003-2005 as a wide receiver and kick returner, was a

25

three year starter, and wore the number 4 jersey.

26

148. During his time at Alabama, he was named Second-Team All SEC both as a return

27
specialist and a wide receiver in 2004 and 2005. In 2004, he led the SEC in kick returns. Mr.
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 52 -

1

Prothro achieved notoriety for an outstanding catch during a game against Southern Mississippi

2

in 2005 which has become known as “The Catch.” He won the “Best Play” award at the 2006

3

ESPYS, and “The Catch” won the Pontiac “Game Changing Award of the Year”, which

4
resulted in a $100,000 donation to the general scholarship fund for the University of Alabama.
5
6
7
8
9
10
11

Fox Sports’ “The Best Damn Sports Show” ranked his catch as the eighth greatest catch of all
time.
149. In high school, Mr. Prothro played cornerback and running back for Cleburne
County. He amassed 92 touchdowns and 8,099 career all-purpose yards, third best in Alabama
high school history.
150. In 2005, during a game against the Florida Gators, Mr. Prothro suffered an open

12
13
14

compound fracture of both major bones (tibula and fibula) of his lower left leg, ending his
junior season. Despite extensive rehabilitation and numerous surgeries, Mr. Prothro was unable

15

to resume his football career. He continues to suffer the debilitating effects of his injury, and

16

will require additional future surgeries.

17
18

151. Mr. Prothro competed pursuant to the NCAA’s rules and regulations, and has been
deprived of compensation by Defendants and their co-conspirators for the continued use of his

19
image following the end of his intercollegiate athletic career. Mr. Prothro signed one or more
20
21

of the release forms discussed herein (or the precursors to them, including scholarship and

22

eligibility papers that the NCAA has interpreted as a release of the student-athlete’s rights with

23

respect to his image, likeness and/or name in connection with merchandise sold by the NCAA,

24

its members, and/or its licensees).

25
26

152. Mr. Prothros’s image, along with those of other Antitrust Damages Class
members, is being offered for sale and/or used during the Antitrust Class Period in at least the

27
ways described below, without informed consent from him and without compensation paid to
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 53 -

1
2
3

him.
153. Mr. Prothro’s image, along with those of other Antitrust Damages Class members,
is being offered for sale and/or used during the Class Period in at least the ways described

4
below, without informed consent from him and without compensation paid to him.
5
6

154. As an example of formats in which Antitrust Damages Class members’ images are

7

being used subject to the anticompetitive restraints detailed herein, Mr. Prothro’s likeness was

8

used by the NCAA’s business partner and co-conspirator Electronic Arts, Inc. EA’s NCAA

9

College Football 04, 05 and 06 editions for the Playstation 2 game system contain teams that

10
11

include the Alabama Crimson Tide. In 2006, the player wearing jersey number 4 and playing
wide receiver was 5’8” 176 lb, with dark skin and close cropped dark hair. Mr. Prothro is a

12
13
14
15

5’8” African American who played wide receiver and wore jersey number 4. In the 2005
version, EA’s game includes distinctive black ankle braces worn by Prothro.
155. Photographs of “The Catch” are also available for purchase from a website,

16

www.alabamacrimsontideprints.com, where prices range from $17.99 to $34.99, and from

17

www.gettyimages.com, which has numerous photographs of Mr. Prothro accepting his ESPY

18

award and playing in the September 17, 2005 game against University of South Carolina. Upon

19
information and belief, the NCAA and/or its members have had a contractual relationship with
20
21
22

Getty Images that allows for the sale of photographs containing the images of current and
former NCAA student athletes.

23

156. As a result of the federal antitrust violations described herein, Antitrust Plaintiff

24

Prothro was injured in his business or property, and was unfairly deprived of compensation in

25

connection with the use and sale of his image, likeness and/or name.

26

Sam Jacobson

27
157. Antitrust Plaintiff Samuel Jacobson (“Sam Jacobson”) is a resident of Apple
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 54 -

1

Valley, Minnesota. Mr. Jacobson played high school basketball at Park of Cottage Grove High

2

School, where in 1994 he was named “Mr. Basketball” for the state of Minnesota.

3

158. Mr. Jacobson competed on the University of Minnesota (“Minnesota”) men’s

4
basketball team from 1994-95, 1995-96, 1996-97 and 1997-98 seasons in the Big 10
5
6

Conference. Mr. Jacobson was named to the All Big Ten Second Team in 1997 and 1998, to

7

the NABC All District Team in 1997 and 1998, and was the MVP of the 1998 Minnesota

8

Gophers. Mr. Jacobson was named Honorable Mention All-America by the AP in 1998, and

9

was a nominee for the 1998 Naismith Player of the Year award. Mr. Jacobson was also named

10
11

to the Under 22 National USA Men’s basketball team.
159. Mr. Jacobson finished as the eighth leading scorer in the history of the University

12
13
14

of Minnesota. He led University of Minnesota to the Final Four of the 1997 NCAA Men’s
Basketball national tournament, where Mr. Jacobson was named to the Midwest Regional

15

Team. In his final season with the University of Minnesota, Mr. Jacobson led the Minnesota’s

16

basketball team to the National Invitational. After his collegiate career ended, Mr. Jacobson

17

was selected by the Los Angeles Lakers with their first pick in the 1998 NBA draft (26th

18

overall). Mr. Jacobson played in the NBA for four seasons, and then played a few more

19
seasons in overseas leagues.
20
21

160. Mr. Jacobson competed pursuant to the NCAA’s rules and regulations, and has

22

been deprived of compensation by Defendants and their co-conspirators for the continued use of

23

his image, likeness and/or name following the end of his intercollegiate athletic career. Mr.

24

Jacobson signed one or more of the release forms discussed herein (or the precursors to them,

25

including scholarship and eligibility papers that the NCAA has interpreted as a release of the

26

student-athlete’s rights with respect to his image, likeness and/or name in connection with

27
merchandise sold by the NCAA, its members, and/or its licensees).
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 55 -

1
2
3

161. Mr. Jacobson’s image, likeness and/or name, along with those of other Antitrust
Damages Class members, is being offered for sale and/or used during the Antitrust Class Period
in at least the ways described below, without informed consent from him and without

4
compensation paid to him. For example, on the NCAA’s On Demand on-line store, operated in
5
6

connection with its for-profit business partner Thought Equity Motion, the following DVD’s are

7

offered at a cost of $24.99 each: “1997 NCAA Division I Men’s Basketball Regional Semi

8

Finals - Clemson vs. Minnesota” and “1997 NCAA Division I Men’s Basketball Regional

9

Finals - UCLA vs. Minnesota.” This site sells copies of other games utilizing the image of Mr.

10
11
12
13
14

Jacobson and other Antitrust Damages Class members from the 1995 and 1997 seasons,
including the following: “1995 NCAA Division I Men’s Basketball 1st Round - Minnesota vs.
St. Louis;” “1997 NCAA Division I Men’s Basketball 1st Round – Southwest Texas State vs.
Minnesota;” “1997 NCAA Division I Men’s Basketball 1st Round - Temple vs. Minnesota;”

15

“1997 NCAA Division I Men’s Basketball 2ndt Round - Minnesota vs. Temple” and “1997

16

NCAA Division I Men’s Basketball National Semi Final - Kentucky vs. Minnesota.” While not

17

currently in production, these games are available for purchase via custom order at a cost of

18

$150 each.

19
162. As additional examples, DVDs available for purchase from Amazon.com which
20
21

feature Mr. Jacobson while he was playing basketball for the University of Minnesota include

22

the following: “1997 NCAA Division 1 Men’s basketball final four highlight video;” “1997

23

NCAA Division 1 Men’s basketball regional final - UCLA v. MN” and “1997 NCAA Division

24

1 Men’s basketball regional semi-final - Clemson v. MN.” These DVD’s are available from

25

Amazon.com for $24.99 each.

26

163. Similarly, photos of Mr. Jacobson are offered by Getty Images, including games

27
from the 1997 NCAA tournament: Minnesota v. Kentucky (photos Editorial #298338, #298165,
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 56 -

1

#297832, #297776, #254791, #254715, and #254589); and Minnesota v. Clemson (photos:

2

Editorial #294053, #291649 and #1396224). The website also offers photos of Mr. Jacobson

3

playing against other Big 10 teams: Minnesota v. Purdue (photos Editorial #352735, #352273,

4
#349385, #346565, #346543, and #296263); Minnesota v. Iowa (photos: Editorial #347377);
5
6
7
8
9
10
11

and Minnesota v. Northwestern (photo: Editorial #298159). On information and belief, Getty
Images has had a contractual relationship with the NCAA relating to photo sales.
164. As another example of formats in which Antitrust Damages Class members’
images, likenesses and/or names are being utilized subject to the anticompetitive restraints
detailed herein, numerous images of Mr. Jacobson are for sale on several on-line photo stores.
For example, Photoshelter.com has available for download, a photo from the March 29, 1997

12
13
14

semi-final game between Minnesota and Kentucky. The photo is described as follows: “29
MAR 1997: University of Kentucky guard Wayne Turner (5) scores against University of

15

Minnesota center Trevor Winter (50), guard Sam Jacobson (5) and forward Courtney James (4)

16

during the Final Four semifinal game. Kentucky defeated Minnesota 78-69 in the semifinal

17

game held at the RCA Dome in Indianapolis, IN. Rich Clarkson/NCAA Photos.” No pricing is

18

available, however, according to Photoshelter.com, NCAA photos is the owner of the copyright

19
on this photo.
20
21

165. As another example of formats in which Antitrust Damages Class members’

22

images, likenesses and/or names are being utilized subject to the anticompetitive restraints

23

detailed herein, Minnesota games featuring Mr. Jacobson also are periodically rebroadcast on

24

ESPN Classic and/or one or more other networks.

25
26

166. As another example of formats in which Antitrust Damages Class members’
images, likenesses and/or names are being utilized subject to the anticompetitive restraints

27
detailed herein, the video game College Hoops 2K6 licensed by the NCAA has a “Legacy
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 57 -

1
2
3

Mode” in which the 1997 Minnesota Gophers’ team can be “unlocked.”
167. On information and belief, Mr. Jacobson’s image, likeness and/or name has been
used and sold in additional ways for additional uses via the licensing entities such as Defendant

4
CLC and TEM described herein.
5
6
7
8
9
10
11

Damien Rhodes
168. Antitrust Plaintiff Damien Rhodes is a resident of Manlius, New York. Mr.
Rhodes was a member of the Syracuse University football team in the Big East Conference
from the 2002 – 2005 seasons, and a highly-accomplished running back. He was honored as a

12
13
14
15
16
17
18

member of the Big East Conference All-Freshman Team, and as a 2nd Team All-Big East
Running Back during his career. He finished first in Syracuse University history for total yards
gained by a player.
169. Mr. Rhodes competed pursuant to the NCAA’s rules and regulations, and has been
deprived of compensation by Defendants and their co-conspirators for the continued use of his
image, likeness and/or name following the end of his intercollegiate athletic career. Mr. Rhodes

19
signed one or more of the release forms discussed herein (or the precursors to them, including
20
21

scholarship and eligibility papers that the NCAA has interpreted as a release of the student-

22

athlete’s rights with respect to his image, likeness and/or name in connection with merchandise

23

sold by the NCAA, its members, and/or its licensees).

24
25
26

170. Mr. Rhodes’ image, likeness and/or name, along with those of other Antitrust
Damages Class members, is being offered for sale and/or used during the Antitrust Class Period
in at least the ways described below, without informed consent from him and without

27
compensation paid to him. For example, in 2002, Syracuse played (and Mr. Rhodes played in)
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 58 -

1

a game against Virginia Tech that went into three overtimes has been featured as “Classic”

2

game and replayed or one or more networks, and will continue to be replayed.

3

171. From 2003 to 2006, Rhodes was the featured back for the Syracuse football team

4
in the NCAA College Football videogames created by Defendant EA Sports. The featured
5
6

running back was African-American (as is Mr. Rhodes) and had the same height, weight and

7

jersey number (1) as Mr. Rhodes. The internet application for the game (such as Xbox Live for

8

Xbox) allowed a user to download names of players, and his name would appear on the running

9

back with Number 1 on the jersey.

10
11

172. Mr. Rhodes’ images, likenesses and/or name also has been utilized in various
Getty Images’ photographs. Upon information and belief, the NCAA and/or its members have

12
13
14
15

had a contractual relationship with Getty Images allow for the sale of photographs containing
the images of current and former NCAA student-athletes.
173. On information and belief, Mr. Rhodes’ image, likeness and/or name has been

16

used and sold in additional ways for additional uses via the licensing entities such as Defendant

17

CLC and TEM described herein.

18

174. As a result of the federal antitrust violations described herein, Antitrust Plaintiff

19
Rhodes was injured in his business or property, and was unfairly deprived of compensation in
20
21
22
23

connection with the use and sale of his image, likeness and/or name.
Danny Wimprine
175. Antitrust Plaintiff Danny Wimprine is a resident of River Ridge, Louisiana. Mr.

24

Wimprine was the starting quarterback on the University of Memphis ("Memphis") Tigers

25

men's football team during the 2001 through 2004 seasons and competed for Memphis in

26

Conference USA. He holds numerous Memphis football records, including passing yards

27
(10,215), completions (808), and touchdown passes (81). Mr. Wimprine was the first player in
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 59 -

1

school history to throw for more than 7,000 yards in a career. He was named Conference USA

2

Player of the Week many times during his college career. Mr. Wimprine also holds the

3

Conference USA record for second most touchdown passes in one game (5). He was named the

4
2003 New Orleans Bowl MVP. In 2004, Mr. Wimprine was a candidate for the Davey O'Brien
5
6

National Quarterback Award, an award given annually to the nation's top quarterback. During

7

his senior year, he was named to the All-Conference USA second team. In 2009, Mr. Wimprine

8

was listed as one of the top five Memphis Athletes of the Decade in the Memphis Flyer.

9

176. Following his career at the University of Memphis, Mr. Wimprine earned a

10
11

position on the Canadian Football League's Edmonton Oilers (2005) and Calgary Stampeders
(2006). From there, he returned home to New Orleans and joined the Arena Football League's

12
13
14

New Orleans VooDoo. Wimprine learned the system in 2007 and, in 2008, became the starter,
tying the league record with five wins in his first five starts and earning Player of the Week

15

Honors. In 2008, Mr. Wimprine earned a quarterback rating of 113.45, completing 60.6% of

16

his passes while throwing 85 touchdowns and only 11 interceptions. During the 2008 season,

17

Mr. Wimprine tied an AFL record for the most consecutive games won in a row (5) by a rookie,

18

and was also voted mid-season AFL 1st team quarterback and was on the “Watch List” for

19
player of the year.
20
21

177. Mr. Wimprine competed pursuant to the NCAA’s rules and regulations, and has

22

been deprived of compensation by Defendants and their co-conspirators for the continued use of

23

his image, likeness and/or name following the end of his intercollegiate athletic career. Mr.

24

Wimprine signed one or more of the release forms discussed herein (or the precursors to them,

25

including scholarship and eligibility papers that the NCAA has interpreted as a release of the

26

student-athlete’s rights with respect to his image, likeness and/or name in connection with

27
merchandise sold by the NCAA, its members, and/or its licensees).
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 60 -

1
2
3

178. Mr. Wimprine’s image, likeness and/or name, along with those of other Antitrust
Damages Class members, is being offered for sale and/or used during the Antitrust Class Period
in at least the ways described below, without informed consent from him and without

4
compensation paid to him. For example, Mr. Wimprine's likeness has been used in the video
5
6
7

game "NCAA Football", published by Defendant Electronic Arts, Inc.
179. DVDs of games in which Danny Wimprine played were also sold. These games

8

include: the September 6, 2003 game between the Mississippi Rebels and the Memphis Tigers;

9

the 2003 New Orleans Bowl; and the 2004 GMAC Bowl.

10
11

180. Mr. Wimprine has been featured in numerous broadcasts of “classic” games,
including games against Louisville from his senior year, Mississippi, and others.

12
13
14

181. Mr. Wimprine wore number 18 while a quarterback at Memphis and at least
thousands of replica Memphis football jerseys bearing his number were sold.

15

182. On information and belief, Mr. Wimprine’s image, likeness and/or name has been

16

used and sold in additional ways for additional uses via the licensing entities such as Defendant

17

CLC and TEM described herein.

18

183. As a result of the federal antitrust violations described herein, Antitrust Plaintiff

19
Wimprine was injured in his business or property, and was unfairly deprived of compensation
20
21
22
23

in connection with the use and sale of his image, likeness and/or name.
Ray Ellis
184. P1aintiff Ray Ellis is a resident of Gilbert, Arizona. Mr. Ellis competed for

24

The Ohio State University's men's football team as a defensive back from the 1976 through

25

1979 seasons, including in the 1980 Rose Bowl game. A four-year letterman and three-

26

year starter, Mr. Ellis won All-Big 10 Conference first team honors with five interceptions

27
as a senior co-captain. In the 1979 season, the Ohio State team compiled an 11 and 0
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 61 -

1

record and possessed a number one national ranking before falling 17-16 to the University

2

of Southern California (USC) in the Rose Bowl on January 1, 1980. That game is ranked

3

by ESPN.com as the eighth greatest college football bowl game of all time, and featured

4
USC star running back and Reisman Trophy winner Charles White running for a stunning
5
6

Rose Bowl record 247 yards including the winning touchdown, as well as USC r u n n i n g

7

back Marcus Allen, a future NFL Hall of Fame player, USCs defensive standout Ronnie

8

Lott, another future NFL Hall of Fame player, and numerous other future NFL players.

9

Mr. Ellis intercepted the first pass of the game by USC, and that image continues to be

10
11

licensed to this day as described herein.
185. Mr. Ellis was drafted in the 1981 NFL draft by the Philadelphia Eagles, and

12
13
14

played for them from 1981 through 1985 before joining the Cleveland Browns in 1986
and competing for them in the 1986 and 1987 seasons. Mr. Ellis’ statistics as a strong

15

safety in the NFL include 427 tackles and 14 interceptions, including 7 alone in 1984. Mr.

16

Ellis has been active in both business and community, including serving as Chief Operating

17

Officer for People for People, a non-profit corporation in Philadelphia whose mission is to

18

educate underprivileged youth and young adults. Ellis has also been active with the Big

19
Brothers/Big Sisters, Special Olympics, United Way, United Negro Fund and the National
20
21

Center for Missing Children.

Mr. Ellis currently works as Sports Channel Director for

22

World Talk Radio d/b/a VoiceAmerica, the largest producer of original Internet talk radio

23

programming in the world and producer of internet television programming. He is

24

actively involved in career transition efforts for former NFL and college players, assisting

25

them with building careers in new media, and is a member of the NFL Retired Players

26

Association and the NFL Alumni Association.

27
186. Mr. Ellis competed pursuant to the NCAA’s rules and regulations, and has
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 62 -

1

been deprived of compensation by Defendants and their co-conspirators for the continued

2

use of his image following the end of his intercollegiate athletic career. Mr. Ellis signed

3

one or more of the release forms discussed herein (or the precursors to them, including

4
scholarship and eligibility papers that the NCAA has interpreted as a release of the
5
6
7
8
9
10
11

student-athlete's rights with respect to his image, likeness and/or name in connection with
merchandise sold by the NCAA, its members, and/or its licensees).
187. Mr. Ellis’ image, likeness and/or name along with those of other Antitrust
Damages Class members, is being offered for sale and/or used during the Antitrust Class
Period in at least the ways described below, without infom1ed consent from him and
without compensation paid to him.

12
13
14

188. Mr. Ellis’ image appears in the “Buckeye Classics” DVD, Volume 2, which
includes an extensive section on Ohio State’s 1979 season, described on packaging

15

material as a season in which the “Buckeyes shocked the nation and rose from relative

16

obscurity to come within seconds of the national title.” The packaging material bears a

17

logo stating it is a “Collegiate Licensed Product” right next to the logo for The Ohio State

18

University. Several video clips of Mr. Ellis appear on the DVD, including an interception

19
to clinch the Big 10 Conference title in a game against Michigan, and Mr. Ellis
20
21
22

additionally appears in footage from the Rose Bowl game. Additional, a still photo of
Mr. Ellis appears in the section regarding the 1979 season.

23

189. The DVD is currently available through numerous outlets, including the Rose

24

Bowls website, where it is identified as an “Officially Licensed NCAA Product” and sold

25

for $19.95. The DVD also is currently sold by the NCAA itself through its on-line DVD

26

store for $19.99.

27
190. The NCAA currently sells another DVD via its on-line DVD store titled
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 63 -

1

“NCAA Rivalry Series: Ohio State Beats Michigan” for $29.95. The NCAA describes the

2

disc 1 of the 3 DVD set as containing the entire November 17, 1979 game between Ohio

3

State and Michigan, which Ohio State won 18-15, and which featured Mr. Ellis'

4
interception clinching the Big 10 Conference championship. New licensing deals for
5
6

this game continue to be struck. For example, it is now available as a part of the “Big

7

Ten's Greatest Games” series shown at hulu.com. Hulu.com is a website offering ad-

8

supported streaming video of TV shows and movies from NBC, Fox, ABC, and many

9

other networks and studios, and is a joint venture of NBC Universal, Fox Entertainment

10
11

Group, and ABC Inc. launched in 2007. Of note, a Fox entity, Fox Cable Networks, is
also a joint venture partner in the Big Ten Network with the Big Ten Conference.

12
13
14

191. As another example of formats in which Antitrust Damages Class members’
images, likenesses and/or names are being utilized subject to the anticompetitive restraints

15

detailed herein, Ohio State games featuring Mr. Ellis and other Antitrust Damages Class

16

members also are periodically rebroadcast on ESPN Classic and other network pursuant

17

to new licensing agreements. For example, on September 11, 2009, ESPN Classic aired

18
19

the 1980 Rose Bowl game between Ohio State and USC. On December 29, 2008, the
game also aired on ESPN Classic, as well as in September of 2008. In November 2006,

20
21
22

the ESPNU network aired the 1979 Ohio State vs. Michigan game.
192. In 2008, USC created the “USC Football Classics Volume I” DVD, which

23

contains an extensive section on the 1980 Rose Bowl game as well as other games. Mr.

24

Ellis' image is used in the footage, and at one point the narrator notes “[the game] finally

25

got going under perfect weather conditions, not so perfect as [USC Quarterback]

26

McDonald gets picked [intercepted] by Ray Ellis’ as Mr. Ellis’ interception is shown. The

27
DVD is currently sold through USCs website, operated by CBS' CSTV entity, for $19.95.
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 64 -

1

Additionally, the DVD is advertised on one of defendant NCAA's websites, NCAA.com,

2

which identifies itself as “The Official Website of NCAA Championships.”

3

193. Given the continuing tremendous interest in college football powerhouses

4
Ohio State, as well as USC, there remains a very substantial likelihood that new licensing
5
6

agreements will be made in the future regarding footage of Mr. Ellis and his teammates and

7

opponents, including from the 1980 Rose Bowl, as exemplified by the new DVD product

8

created by USC in 2008, as well as the new agreement to license the 1979 Michigan game

9

for use on Hulu.com. As an additional example, in 2007, the HBO television channel

10
11

created a new television special entitled 'Michigan vs. Ohio State “chronicling the rivalry
between the two schools. The program airs to this day, including as recently as November

12
13
14

14, 2010, and also is available on DVD for sale. New licensing deals were struck for use
of footage, including from games from Mr. Ellis' era, and the credits indicate that footage

15

was licensed from, among other entities, “Thought Equity Motion & the NCAA,” Ohio

16

State University, and the University of Michigan. This exemplifies the continuing

17

licensing deals being made to this day for footage pertaining to Mr. Ellis’ teams, and the

18

likelihood of continuing licensing deals being made in the future by Defendants and their

19
co­conspirators for footage including the images of Mr. Ellis and his teammates.
20
21

194. As a result of the federal antitrust violations described herein, Plaintiff Ellis was

22

injured in his business or property, and was unfairly deprived of compensation in

23

connection with the use and sale of his image, likeness and/or name.

24
25
26

Tate George
195. Plaintiff Tate George is a resident of Boca Raton, Florida. Mr. George
competed for the University of Connecticut’s (UCONN) men's basketball team as a

27
starting guard in the 1986-87 through 1989-90 seasons. UCONN named Mr. George to its
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 65 -

1

All-Century men's basketball team, and he is the school’s all-time career assist leader, as

2

well as number two in career steals, and finished with more than 1,000 career points. He

3

was named to the 1986-87 Big East Conference All-Rookie Team, and as a senior in 1990,

4
he was named to the Big East All­ Tournament team as the Huskies won their first-ever
5
6
7
8
9
10
11

Big East Conference tournament title. Mr. George was named to the NCAA East Regional
All-Tournament Team.
196. Mr. George was selected by the New Jersey Nets in the first round of the 1990
NBA draft, and played for five seasons in the NBA with the Nets and Milwaukee Bucks,
and additionally played professional basketball in Europe for three years.
197. In the 1990 NCAA tournament in the Sweet Sixteen round, Mr. George hit an

12
iconic, game-winning, buzzer-beating shot to defeat Clemson, known to this day simply
13
14

as “The Shoe.” With one second remaining in the game, and UCONN down by one

15

point, UCONNs Scott Burrell inbounded the ball by throwing it nearly 90 feet to Mr.

16

George, who caught the ball with his back to the basket and in one motion turned around

17

and launched a successful 15 foot shot as time expired. Ever since, the play has been

18
19

considered one of the greatest in NCAA tournament history. For example, in 2006,
ESPN’s SportsCenter ranked it as number five on its list of “Top NCAA Buzzer Beater”

20
21

of all time.

22

198. Strong interest in Mr. George continues to this day. For example, in an article

23

in the commercial real estate section of the July 20, 2010 edition of The New York Times

24

titled “After Sports Careers, Vying in the Real Estate Arena,” Mr. George was pictured,

25

discussed, and quoted regarding his affordable housing development projects.

26

The

article stated in part that “[w]hatever their projects’ details, some of these former athletes

27
seem content to leave the bright lights of their playing days behind. ‘What I’m doing is
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 66 -

1

not self-serving, but other-serving,’ Mr. George said. ‘When you don't work for fanfare,

2

you can get a lot more done.”

3

199. Mr. George also was profiled in the August 2-9, 2010 edition of Sports

4
Illustrated magazine in an article titled “Tate George Twenty years after his heroics, the
5
6

Newark native is back home working wonders again.” The article recounted his famous

7

shot in the 1990 NCAA tournament, stating that he had “just nailed one of the most

8

electrifying buzzer beaters in NCAA tournament history” and that “[h]is turnaround

9

jumper with one second left on March 22, 1990, sent top-seeded Connecticut past No. 5

10
11

seed Clemson and into the Elite Eight.” The article continued that “[a]fter finishing his
NBA career (three years with the Nets and one with the Bucks), George successfully moved

12
13
14

into the world of real estate. As the CEO and chairman of the board of The George
Group LLC, which he started back in 2000, George is doing his part to help urban

15

communities-most notably in Newark-redevelop retail, residential and commercial

16

properties:' With respect to his efforts regarding the redevelopment of Newark and

17

supporting the temporary relocation this year of the NBA:s New Jersey Nets to Newark,

18
19

the article quoted Mr. George as follows: “It’s galvanizing to a community that has
nothing to look forward to” says George. “There’s not much hope. And sport is a

20
21

universal time for people to come together.”

22

200. In a 2008 profile of Mr. George titled “Success, by George!” in Conde Nast’s

23

Portfolio, the publication noted, with respect to Mr. George's shot, that the “moment may

24

have immortalized George forever, thanks to YouTube and ESPN Classic…”

25
26

201. Mr. George serves as a member of the Board of Directors of the National
Basketball Retired Players Association (“NBRPR”) as well as its Vice-President. The

27
NBRPA was founded in 1992 by NBA Legends Dave DeBusschere, Dave Bing, Archie
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 67 -

1

Clark, Dave Cowens and Oscar Robertson, and is a non-profit Association comprised of

2

former professional basketball players of the NBA, ABA and Harlem Globetrotters. It

3

works in direct partnership with the NBA, and its mission is to promote basketball and

4
enhance the sporfs image by assisting members, including in building community
5
6
7
8
9
10
11

relationships and fostering support for charitable activities and offering the Dave
DeBusschere NBRPA Scholarship Fund for members and their children in need.
202. In a 2009 article profiling Mr. George in Slam magazine, Mr. George stated
that “[s]omething I really wanted to be a part of was the Retired Players' Association,
because we need to have a bridge for guys [after they finish their career] … What we as
athletes need to do is take a real inventory on what we're good at and what we're not good

12
13
14

at and team up:' In another 2009 profile on the Sport Network.com, Mr. George noted
with respect to his work with retired NBA players that "We have guys living in their

15

families' basements that have very little life skills and no one is stepping up to assist in

16

the transition of the men they promote to build the NBA brand.”

17
18
19

203. Mr. George competed pursuant to the NCAA's rules and regulations, and has
been deprived of compensation by Defendants and their co-conspirators for the continued
use of his image following the end of his intercollegiate athletic career. Mr. George

20
21

signed one or more of the release forms discussed herein (or the precursors to them,

22

including scholarship and eligibility papers that the NCAA has interpreted as a release of

23

the student-athlete's rights with respect to his image, likeness and/or name in connection

24

with merchandise sold by the NCAA, its members, and/or its licensees).

25
26

204. Mr. George’s image, likeness and/or name along with those of other Antitrust
Damages Class members, is being offered for sale and/or used during the Antitrust Class

27
Period in at least the ways described below, without informed consent from him and without
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 68 -

1

compensation paid to him. For example, on the NCAA’s On Demand on-line store, operated

2

in connection with its for-profit business partner Thought Equity Motion (1EM), the 1990

3

UCONN game vs. Clemson is offered for sale for $24.99, and the NCAA captions the game

4
solely as follows: “Tate George hit a heart-stopping 17 footer to lead UCONN past Clemson
5
6

71-70,” and includes a video-clip of Mr. George's shot as a part of the advertisement for the

7

game on the site. The NCAA further offers at least three other 1990 tournament games

8

featuring Mr. George and his teammates and opponents for a custom-order price of $150

9

first and second round regional games versus the University of California, Berkeley and

10
11

Boston University, and a regional final game versus Duke University.
205. The game is also currently offered for sale through myriad other distribution

12
outlets, such as Amazon.com for $24.99 (also described only as “Tate George hit a heart13
14
15

stopping 17 footer to lead UCONN past Clemson 71-70.”).
206. As another example of formats in which Antitrust Damages Class members'

16

images, likenesses and/or names are being utilized subject to the anticompetitive restraints

17

detailed herein, the NCAA and its partner TEM also offer for sale to corporate advertisers

18

and others a “stock footage” clip running four minutes and 14 seconds captioned “Tate

19
George hits a buzzer beater in the 1990 NCAA Men's Basketball tournament.” Thought
20
21

Equity includes the following notation under the clip: “Thought Equity Motion, Inc. reserves

22

the right to pursue any unauthorized persons that use this clip. Any violation of the

23

Intellectual Property rights related to this clip may result in liability for injunctive relief as

24

well as damages in the form of actual damages for loss of income, profits derived from the

25

unauthorized use of this image or clip, and, where appropriate, attorney fees, other costs

26

of collection and/or statutory damages.”

27
207. A separate version of the clip running 3 minutes 30 seconds is also offered by
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 69 -

1

TEM and captioned: “Connecticut’s Tate George misses a game-winning jumper with 4

2

seconds left in the game; the Huskies get a reprieve when Sean Tyson couldn’t convert a

3

free throw; with one second on the clock, Scott Burrell throws the ball to George, who

4
lets the ball fly toward the basket from 15 feet out.” TEM includes the same warning
5
6
7

regarding intellectual property rights as detailed above.
208. On information and belief, the stock footage licensing described above is the

8

way that the NCAA has licensed the famous clip of Mr. George in numerous ways, and

9

will continue to do so.

10
11

209. Clips of Mr. George’s shot continue to this day to be the subject of new
licensing deals executed by the NCAA and TEM. The clip has been licensed for use and

12
13
14

has appeared in numerous commercials, for example, in car commercials. The clip was
recently licensed and used as a part of a commercial promotion for Vitamin Water used

15

during CBS' broadcast of the 2009 NCAA men's basketball tournament. Previously uses

16

of the clip include commercials and promotions for McDonalds, Burger King, Buick,

17

Chrysler, and Cadillac.

18

210. As another example, this year, in its March 25, 2010 newsletter, the NCAA’s

19
business partner TEM stated: “ T h o u g h t Equity Motion worked with AdoTube-avideo
20
21

advertising network and platform to license NCAA content for a recent McDonald's digital

22

ad campaign. McDonalds wanted to run relevant in-stream ads over premium video

23

content. So, in a matter of days, Thought Equity Motion licensed AdoTube three fully

24

produced, popu1ar March Madness® videos, which the company exclusively ran the

25

McDonalds overlay in on targeted video-enabled ad networks. To watch the March Madness

26

videos and see McDonald's in-stream ads, click here.

27
211. The first image in the McDonald's commercial advertisement is a clip of Mr.
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 70 -

1

George's shot, with the play-by-play announcer intoning: “Here goes the long pass with one

2

second to go, the shots going to count, the shot by Tate George wins it!” The bottom-half of

3

the screen is filled by a streaming McDonalds ad stating: "Fact or Fiction ... The McDonald's

4
Egg McMuffin is pre­assembled (fiction) .... made to order (fact) ... the Egg McMuffin,
5
6

always made to order … I’m lovin’ it, © 2009 McDonalds .. :' Both computerized graphics

7

of the assembly of an Egg McMuffin, as well as a picture of an actual Egg McMuffin, are

8

included in the ad along with Mr. George’s shot.

9
10
11

212. Mr. George has not given his consent for his image to be licensed for
commercial purposes to promote the interests of McDonald's Corporation and its Egg
McMuffin breakfast sandwiches.

12
13
14
15

213. On information and belief, Mr. George's image, likeness and/or name has been
used and sold in additional ways for additional uses via the licensing entities such as
Defendant CLC and TEM described herein.

16

214. Given the continuing tremendous interest in Mr. George's shot versus Clemson,

17

and the insatiable demand for college basketball, there remains a very substantial likelihood

18
19

that new licensing agreements will be made in the future regarding footage of Mr. George
and his teammates and opponents.

20
21

215. As a result of the federal antitrust violations described herein, Plaintiff George was

22

injured in his business or property, and was unfairly deprived of compensation in connection

23

with the use and sale of his image, likeness and/or name.

24
25
26

Jake Fischer
216. Plaintiff Jake Fischer is a resident of Tucson, Arizona and a rising senior at the
University of Arizona. Mr. Fischer is a three-time captain of the University of Arizona

27
Wildcats men’s football team and will be a starting inside linebacker this coming season. In
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 71 -

1

September 2012, Mr. Fischer was named PAC-12 Defensive Player of the Week after

2

recording 13 tackles in a single game. He led the Wildcats with 119 tackles in 2012. An

3

integral part of the Wildcats’ defensive scheme, Mr. Fischer helped lead the team to a 49-48

4
overtime victory over the University of Nevada in the 2012 New Mexico Bowl.
5
6
7

217. Mr. Fischer competes pursuant to the NCAA’s rules and regulations, and has
been deprived of compensation by Defendants and their co-conspirators for the continuing use

8
of his image, likeness and/or name during his intercollegiate athletic career. Mr. Fischer
9
10

signed one or more of the release forms discussed herein (or the successors to them, including

11

scholarship and eligibility papers that the NCAA has interpreted as a release of the student-

12

athlete’s rights with respect to his image, likeness and/or name in connection with

13

merchandise sold by the NCAA, its members and/or it licensees).

14
15

218. Mr. Fischer’s likeness has been used in the video game “NCAA Football,”
published by Defendant EA.

16
219. Mr. Fischer has been featured in numerous broadcasts and rebroadcasts of
17
18
19

Arizona Wildcats games, including the 2012 New Mexico Bowl.
220. As a result of the federal antitrust violations described herein, Antitrust Plaintiff

20

Fischer has been and continues to be injured in his business or property and has been and

21

continues to be unfairly deprived of compensation in connection with the use and sale of his

22

image, likeness and/or name.

23

Jake Smith

24
25
26

221. Plaintiff Jake Smith is a resident of Tucson, Arizona and a rising senior at the
University of Arizona. Mr. Smith is a kicker for the University of Arizona Wildcats men’s

27

football team and will be a starter this coming season. Before transferring to the University of

28

Arizona, he played football for the Youngstown State Penguins (2010) and the Syracuse
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 72 -

1

Orangemen (2009). Mr. Smith was a football and baseball letterman in high school and a first-

2

team all-conference honoree during his junior and senior years. He was designated Special

3

Teams Most Valuable Player as a junior and senior in high school.

4
222. Mr. Smith competes pursuant to the NCAA’s rules and regulations, and has been
5
6

deprived of compensation by Defendants and their co-conspirators for the continuing use of his

7

image, likeness and/or name during his intercollegiate athletic career. Mr. Smith signed one or

8

more of the release forms discussed herein (or the successors to them, including scholarship and

9

eligibility papers that the NCAA has interpreted as a release of the student-athlete’s rights with

10
11

respect to his image, likeness and/or name in connection with merchandise sold by the NCAA,
its members and/or it licensees).

12
13
14
15

223. Mr. Smith’s likeness has been used in the video game “NCAA Football,”
published by Defendant EA.
224. As a result of the federal antitrust violations described herein, Antitrust Plaintiff

16

Smith has been and continues to be injured in his business or property and has been and

17

continues to be unfairly deprived of compensation in connection with the use and sale of his

18

image, likeness and/or name.

19
Darius Robinson
20
21

225. Plaintiff Darius Robinson is a resident of College Park, Georgia and a rising senior

22

at Clemson University. Mr. Robinson will be a starting cornerback this coming season for the

23

Clemson Tigers men’s football team. Last season, he recorded 13 tackles, one interception, and

24

two pass breakups over seven games—including five tackles against Auburn on September 1,

25

2012—before fracturing his ankle. Rivals.com ranked Mr. Robinson the 16th best cornerback

26

in the nation while he was in high school. As a senior at Westlake High School, he recorded 80

27
tackles, two interceptions, two forced fumbles, a fumble return for a score, and a punt return for
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 73 -

1
2
3

a score.
226. Mr. Robinson competes pursuant to the NCAA’s rules and regulations, and has
been deprived of compensation by Defendants and their co-conspirators for the continuing use

4
of his image, likeness and/or name during his intercollegiate athletic career. Mr. Robinson
5
6

signed one or more of the release forms discussed herein (or the successors to them, including

7

scholarship and eligibility papers that the NCAA has interpreted as a release of the student-

8

athlete’s rights with respect to his image, likeness and/or name in connection with merchandise

9

sold by the NCAA, its members and/or it licensees).

10
11

227. Mr. Robinson’s likeness has been used in the video game “NCAA Football,”
published by Defendant EA.

12
13
14
15

228. Mr. Robinson has been featured in numerous broadcasts and rebroadcasts of
Clemson Tigers games, including the 2012 Orange Bowl.
229. As a result of the federal antitrust violations described herein, Antitrust Plaintiff

16

Robinson has been and continues to be injured in his business or property and has been and

17

continues to be unfairly deprived of compensation in connection with the use and sale of his

18

image, likeness and/or name.

19
Moses Alipate
20
21

230. Plaintiff Moses Alipate is a resident of Minneapolis, Minnesota and a rising senior

22

at the University of Minnesota. The Gophers recruited Alipate as a quarterback out of

23

Bloomington, Minnesota. In 2009, Mr. Alipate was ranked as the No. 2 player in the state of

24

Minnesota by Rivals.com. Mr. Alipate was ranked by Scout.com as the No. 3 quarterback in

25

the nation and a three-star recruit at that position. At 6 foot 5 and 290 pounds, Mr. Alipate

26

recently transitioned from the University of Minnesota’s backup quarterback to a tight end

27
position.
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 74 -

1

231. Mr. Alipate competes pursuant to the NCAA’s rules and regulations, and has been

2

deprived of compensation by Defendants and their co-conspirators for the continuing use of his

3

image, likeness and/or name during his intercollegiate athletic career. Mr. Alipate signed one

4
or more of the release forms discussed herein (or the successors to them, including scholarship
5
6

and eligibility papers that the NCAA has interpreted as a release of the student-athlete’s rights

7

with respect to his image, likeness and/or name in connection with merchandise sold by the

8

NCAA, its members and/or it licensees).

9
10
11

232. As a result of the federal antitrust violations described herein, Antitrust Plaintiff
Alipate has been and continues to be injured in his business or property and has been and
continues to be unfairly deprived of compensation in connection with the use and sale of his

12
13
14
15

image, likeness and/or name.
Chase Garnham
233. Plaintiff Chase Garnham is a resident of Nashville, Tennessee and a rising senior

16

at Vanderbilt University. Mr. Garnham will be a starting middle linebacker this coming season

17

for Vanderbilt University Commodores men’s football team. In 2012, Mr. Garnham led the

18

Commodores defense with seven quarterback sacks and 12.5 tackles for loss. Mr. Garnham

19
contributed career highs in 2012 with 43 solo tackles and 84 total tackles. His 2012 campaign
20
21

includes a three-sack performance in Vanderbilt's victory over Auburn and a 10-tackle effort in

22

the Commodores' win over Tennessee. Mr. Garnham ranked among the league's top five

23

linebackers last year and will compete for All-SEC honors in 2013.

24
25
26

234. Mr. Garnham competes pursuant to the NCAA’s rules and regulations, and has
been deprived of compensation by Defendants and their co-conspirators for the continuing use
of his image, likeness and/or name during his intercollegiate athletic career. Mr. Garnham

27
signed one or more of the release forms discussed herein (or the successors to them, including
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 75 -

1

scholarship and eligibility papers that the NCAA has interpreted as a release of the student-

2

athlete’s rights with respect to his image, likeness and/or name in connection with merchandise

3

sold by the NCAA, its members and/or it licensees).

4
235. Mr. Garnham’s likeness has been used in the video game “NCAA Football,”
5
6
7
8
9
10
11

published by Defendant EA.
236. Mr. Garnham has been featured in numerous broadcasts and rebroadcasts of
Vanderbilt University Commodores games.
237. As a result of the federal antitrust violations described herein, Antitrust Plaintiff
Garnham has been and continues to be injured in his business or property and has been and
continues to be unfairly deprived of compensation in connection with the use and sale of his

12
13
14
15

image, likeness and/or name.
Victor Keise
238. Plaintiff Victor Keise is a resident of Minneapolis, Minnesota and a rising senior at

16

the University of Minnesota. The University of Minnesota men’s football team recruited Mr.

17

Keise as a wide receiver out of Coral Springs, Florida, where he helped lead his North Broward

18

Prep team to a 10-0 regular-season record and a berth in the state playoffs. In 2008, Rivals.com

19

ranked Mr. Keise as the No. 98 wide receiver in the nation and he was named a two-star

20
prospect by Scout.com.
21
22

239. Mr. Keise competes pursuant to the NCAA’s rules and regulations, and has been

23

deprived of compensation by Defendants and their co-conspirators for the continuing use of his

24

image, likeness and/or name during his intercollegiate athletic career. Mr. Keise signed one or

25

more of the release forms discussed herein (or the successors to them, including scholarship and

26
27

eligibility papers that the NCAA has interpreted as a release of the student-athlete’s rights with
respect to his image, likeness and/or name in connection with merchandise sold by the NCAA,

28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 76 -

1
2
3

its members and/or it licensees).
240. As a result of the federal antitrust violations described herein, Antitrust Plaintiff
Keise has been and continues to be injured in his business or property and has been and

4
continues to be unfairly deprived of compensation in connection with the use and sale of his
5
6
7
8
9
10
11

image, likeness and/or name.
HART/ALSTON RIGHT OF PUBLICITY PLAINTIFFS
241. Plaintiff Ryan Hart, an individual, is a New Jersey resident and a former starting
quarterback for the University of Rutgers football team.
242. Plaintiff Shawne Alston, an individual, is a West Virginia resident and a former
starting running back for the University of West Virginia football team.

12
13
14
15

KELLER RIGHT OF PUBLICITY DEFENDANTS
243. Defendant EA, a Delaware corporation, is a multi-billion dollar interactive

16

entertainment software company that produces the NCAA Football, NCAA Basketball and

17

NCAA March Madness videogame franchises. It describes itself as the “world’s leading

18

interactive entertainment software company.” Its revenues support this claim. In just one fiscal

19
year (2008), Electronic Arts posted net revenues, calculated under GAAP, of $3.67 billion.
20
21

Electronic Arts’ principal place of business is Redwood City, California, but Electronic Arts

22

sells its games directly to consumers throughout the country through its website www.ea.com

23

and indirectly through major retailers in all fifty states.

24
25
26

244. Defendant NCAA is an unincorporated association that acts as the governing body
of college sports. Although it describes itself as “committed to the best interests . . . of student
athletes,” the NCAA’s true interest is in maximizing revenue for itself and its members, often at

27
the expense of its student-athletes. While extolling the virtues of “amateurism” for student28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 77 -

1

athletes, the NCAA itself runs a highly professionalized and commercialized licensing

2

operation that generates hundreds of millions in royalties, broadcast rights and other licensing

3

fees each year. The annual revenues for the NCAA in fiscal year 2007-08 were $614 million.

4
Almost 90% of the NCAA’s annual budget revenues stem from marketing and television rights,
5
6

with only 9-10% coming from championship game revenues. The NCAA’s operations are also

7

highly profitable. The direct expenses for operating the actual games that generated the $614

8

million in revenues was only $59 million

9
10
11

245. Defendant CLC, a Georgia corporation headquartered in Atlanta, Georgia, is the
nation’s leading collegiate trademark, licensing, and marketing company. CLC represents
nearly 200 colleges, universities, bowl games, and athletic conferences, including the NCAA.

12
13

Its primary service is to market and sell its clients.
ANTITRUST DEFENDANTS

14
15
16
17
18
19

246.

Defendant NCAA is an unincorporated association with its principal place

of business located in Indianapolis, Indiana.
247. Defendant CLC is a for-profit corporation incorporated under the laws of Georgia
with its principal place of business located at 290 Interstate N Circle SE, Suite 200, Atlanta,
Georgia 30339. IMG College, a division of IMG, identifies CLC as its “licensing team,” and

20
21
22

states that CLC is “the unrivaled leader in collegiate brand licensing, managing the licensing
rights for nearly 200 leading institutions that represent more than $3 billion in retail sales and

23

more than 75% share of the college licensing market.” IMG identifies itself as “a leading

24

collegiate marketing, licensing and media company.”

25
26

248. Defendant EA is a for-profit corporation incorporated under the laws of Delaware
with its principal place of business located in this District at 209 Redwood Shores Parkway,

27
Redwood City, California 94065. EA is publicly traded on the NASDAQ stock exchange
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 78 -

1

(ticker symbol: ERTS) and identifies itself as “the world's leading interactive entertainment

2

software company” and states that it “develops, publishes, and distributes interactive software

3

worldwide for video game systems, personal computers, cellular handsets and the Internet.” In

4
its 2008 fiscal year, EA had revenues of $3.67 billion and 27 of its titles sold more than one
5
6

million copies. As described herein, the NCAA has entered into license agreements with EA

7

relating to the use of the likenesses of members of the Antitrust Classes in video games

8

available via various platforms.

9
10
11

249. Whenever in this Complaint reference is made to any act, deed, or transaction of
the Defendants, the allegation means that the Defendants engaged in the act, deed, or
transaction by or through their officers, directors, agents, employees, or representatives while

12
13
14

they were actively engaged in the management, direction, control or transaction of Defendants’
business or affairs.

15

HART/ALSTON RIGHT OF PUBLICITY DEFENDANT

16

250.

17
18

Defendant EA, a Delaware corporation, is a multi-billion dollar interactive

entertainment software company that produces the NCAA Football, NCAA Basketball and
NCAA March Madness videogame franchises.

It describes itself as the “world’s leading

19
interactive entertainment software company.” Its revenues support this claim. In just one fiscal
20
21

year (2008), Electronic Arts posted net revenues, calculated under GAAP, of $3.67 billion.

22

Electronic Arts’ principal place of business is Redwood City, California, but Electronic Arts

23

sells its games directly to consumers throughout the country through its website www.ea.com

24

and indirectly through major retailers in all fifty states.

25
26
27

ANTITRUST CO-CONSPIRATORS
251. Various other persons, firms, corporations, and entities (including, but not limited
to, the NCAA’s members schools and conferences, TEM, Collegiate Images (“CI”), XOS,

28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 79 -

1

andT3 Media) have participated as unnamed co-conspirators with Defendants in the violations

2

and conspiracy alleged herein. In order to engage in the offenses charged and violations alleged

3

herein, these co-conspirators have performed acts and made statements in furtherance of the

4
antitrust violations and other violations alleged herein.
5
252. At all relevant times, each co-conspirator was an agent of Defendants and each of

6
7

the remaining co-conspirators, and in doing the acts alleged herein, was acting within the course

8

and scope of such agency. Defendants and each co-conspirator ratified and/or authorized the

9

wrongful acts of Defendants and each of the other co-conspirators. Defendants and the co-

10
11

conspirators, and each of them, are participants as aiders and abettors in the improper acts and
transactions that are the subject of this action.

12
13

INTERSTATE TRADE AND COMMERCE WITH RESPECT TO ANTITRUST CLAIMS
253. The business activities of Defendants that are the subject of this action were within

14
15

the flow of, and substantially affected, interstate trade and commerce.

16

254. During the Antitrust Class Period, Defendants transacted business in multiple

17

states in a continuous and uninterrupted flow of interstate commerce throughout the United

18

States.

19

KELLER RIGHT OF PUBLICITY ALLEGATIONS 1

20
255. EA produces the NCAA Football, NCAA Basketball and NCAA March Madness

21
22

videogame franchises. Videogame titles within these franchises simulate basketball and

23

football matches between NCAA member schools. Consumers demand that these matches

24

simulate actual college matches in the most realistic manner possible. In the words of CLC

25

President Pat Battle: “A failure to keep up with technology and take full advantage from a

26
27
28

1

These allegations pertain to the putative Keller Right of Publicity Class and the putative
Hart/Alston Right of Publicity Class.
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 80 -

1

consumer standpoint may make the NCAA [video game] titles less valuable.” As a result, each

2

year EA spends millions of dollars to ensure the realism of the games, and advertises this

3

realism in the promotion of its products. Specifically, pursuant to a license with CLC, the

4
NCAA’s licensing company, EA replicates team logos, uniforms, mascots and member school
5
6
7
8
9
10
11

stadiums with almost photographic realism. In addition to computer generated images,
Electronic Arts includes actual photographs of uniformed student-athletes in the games.
256. As discussed in more detail below, EA is not permitted to utilize player names and
likenesses. In reality, however, EA with the knowledge, participation and approval of the
NCAA and CLC extensively utilizes actual player names and likenesses allowing a player of an
EA game to identify the college athlete playing the game. The motivation of Defendants is

12
13
14
15
16

simple: more money. As the NCAA, CLC and EA know, heightened realism in NCAA
videogames translates directly into increased sales, and therefore, increased revenues for
Electronic Arts and increased royalties for CLC and the NCAA.
A.

Prohibitions on Use of Names or Likenesses

17
18
19
20

257. The NCAA does not officially permit the licensing of NCAA athlete likenesses or
the use of their names. In fact, NCAA Bylaw 12.5 specifically prohibits the commercial
licensing of an NCAA athlete’s “name, picture or likeness.”

21
258. To help enforce this rule, all incoming freshman and transfer students, including
22
23

Right of Publicity Plaintiffs and class members, are required to enter into a contract with the

24

NCAA that prohibits the student-athlete from using his name, picture or likeness for

25

commercial purposes.

26

259. Likewise, the contract prohibits the NCAA from using Right of Publicity

27

Plaintiffs’ and class members’ names, pictures and likeness for commercial purposes.

28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 81 -

1
2
3

260. The NCAA, however, sanctions, facilitates and profits from EA’s use of studentathletes’ names, pictures and likenesses despite contractual obligations prohibiting such
conduct.

4
5

B.

The Contract Between the NCAA and the Student-Athletes

6
261. The contract each incoming freshman and transfer student-athlete signs is titled
7
8
9
10
11
12
13

Form 08-3a Student-Athlete Statement –Division I. See Exhibit A.
262. The contracts used during the class period are, upon information and belief,
substantively analogous to Exhibit A, if not identical, and are also titled Form 08-3a.
263. All Plaintiffs and putative class members entered into such contracts and signed
Form 08-3a in exchange for certification from the NCAA that allows them to participate in
sanctioned NCAA Division I sporting events. The contract has seven parts, all of which must

14
15
16
17

be executed by the student to receive certification that he is eligible to participate in NCAA
Division I sporting events.
264. Part I requires the student-athlete to affirm his eligibility to participate in NCAA

18

events. Among other things, the student-athlete affirms that he has received a copy of the

19

NCAA rules and that he had an opportunity to ask questions about them. He also affirms that

20

he “meet[s] the NCAA regulations for student-athletes regarding eligibility recruitment,

21
financial aid, amateur status and involvement in gambling activity.”
22
23

265. Part II requires the student-athlete to waive certain privacy rights under the Family

24

Educational Rights and Privacy Act of 1974. Among other things, the student-athlete agrees to

25

permit the disclosure of education records, drug test results, social security numbers, race and

26

gender identification, diagnosis of certain education related disabilities, financial aid records,

27

and “any other papers or information pertaining to your NCAA eligibility.”

28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 82 -

1
2
3

266. Part III requires the student-athlete to affirm that he has read and understands the
NCAA amateurism rules.
267. Part IV requires the student to authorize and grant a limited license to the “NCAA

4
[or a third party acting on behalf of the NCAA (e.g., host institution, conference, local
5
6
7
8
9
10
11

organizing committee)] to use the student-athlete’s “name or picture to generally promote
NCAA championships or other NCAA events, activities or programs.”
268. Part V requires the student-athlete to disclose whether he has ever tested positive
for a banned substance by the NCAA and/or by a non-NCAA national or international athletics
organization.
269. Part VI is for transfer students only. The contractual provision requires the

12
13
14
15
16
17
18

student-athlete to identify himself, if appropriate, as a transfer student and to describe, if
applicable, any previous involvement in NCAA rules violation(s).
270. Part VII is for incoming freshmen only. The contractual provision requires the
student-athlete to confirm that he has a validated ACT and/or SAT score.
271. The contract is valid from the date the document is signed and remains in effect
until a subsequent Division I Student-Athlete Statement/Drug Testing Consent form is

19
executed.
20
21

272. The contract is required by the NCAA Constitution and Bylaws, and student-

22

athletes are ineligible to participate in any intercollegiate competition unless they execute the

23

contract. In return and in consideration for the above disclosures, waivers, affirmations and

24

limited license, the NCAA agrees to grant players eligibility to participate in Division I

25

athletics. The contract is an adhesion contract due to the unequal bargaining power of the

26

parties and the take it or leave it nature of the contract.

27
273. EA is not a third party acting on behalf of the NCAA, as contemplated by section
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 83 -

1

IV of the contract. Nor is Electronic Arts using Plaintiffs’ or class members’ names, pictures,

2

or likenesses to generally promote an NCAA championship or other NCAA event, activity or

3

program as contemplated by section IV of the contract. Instead, EA is using Right of Publicity

4
Plaintiffs’ and class members’ names, pictures, and likenesses for commercial purpose and
5
6
7

without consent.
274. The NCAA has a duty to NCAA athletes to honor its own rules prohibiting and

8

contractual obligations relating to the use of student likenesses and pictures. CLC is likewise

9

contractually obligated to honor NCAA prohibitions on the use of student likenesses.

10
11

Specifically, the licensing agreements between the NCAA and CLE and between EAand CLC
explicitly prohibit the use of NCAA athlete names and/or likenesses in NCAA branded

12
13
14

videogames. Under the NCAA’s licensing program, the NCAA and its member institutions,
through CLC, are required to approve every EA videogame produced pursuant to the license

15

before its release. Ostensibly NCAA athletes are the intended beneficiaries of the NCAA

16

likeness prohibitions and the contractual provisions that incorporate them in contracts between

17

and among CLC, NCAA and EA.

18
19
20

C.

EA’s Blatant Use of Player Names and Likenesses

275. Ea purports to honor the NCAA’s rule nominally prohibiting the use of player

21
likenesses. In fact, it does not. As an EA spokesperson candidly acknowledged in a 2006
22
23
24
25

interview with The Indianapolis Star, its real mindset with regard to the use of player names
and likenesses can be summed up in one sentence: “Ok, how far can we go?”
276. The answer can be found in the games themselves. EA seeks to precisely replicate

26

each school’s entire team. With rare exception, virtually every real-life Division I football or

27

basketball player in the NCAA has a corresponding player in EA’s games with the same jersey

28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 84 -

1

number, and virtually identical height, weight, build, and home state. In addition, EA matches

2

the player’s skin tone, hair color, and often even a player’s hair style, although this last

3

characteristic can be highly variable over even a single season.

4
277. EA’s misappropriation of player likenesses is not limited to superstars at large
5
schools or top programs. Kent State Golden Flashes running back Eugene Jarvis, for example,

6
7

stands a mere 5’5” and weighs only 170 pounds. He is also an African-American red-shirt

8

junior from Pennsylvania who wears number 6 for the Golden Flashes. And although he is

9

extremely talented, Mr. Jarvis is unusually small for a college football player. For these

10

reasons, one would expect a randomly generated virtual running back for the Golden Flashes to

11

be somewhat dissimilar to Mr. Jarvis. But here are the first two profile pages for Golden

12
Flashes player number 6 from the NCAA 2009 Football game:

13
14

//

15

//

16

//

17

//

18

//

19
//
20
21
22

//
//

23
24
25
26
27
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 85 -

1
2
3
4
5
6
7
8
9
10
11
12

278. Number 6 for the Golden Flashes is clearly Mr. Jarvis. Both players are 5’5”, 170
pound African-American players. Both are also red-shirt juniors from Pennsylvania, and both
are the starting running back for the Golden Flashes. This is not a mere coincidence.

13
279. EA’s blatant misappropriation of player likenesses is highlighted by a comparison
14
15

of EA’s NCAA titles to its titles based on professional leagues for which EA has the legal right

16

to player likenesses through license agreements with the relevant players’ unions. If EA were

17

not utilizing actual player likenesses, one would expect significant changes to the virtual player

18

once the corresponding real player entered a professional league. In fact, the likeness of NCAA

19
20

players who later enter a professional league remains virtually identical across titles.
280. For example, the profile below on the left, taken from the 2008 NCAA football

21
22
23
24

game, shows number 77, an offensive lineman for the Michigan Wolverines. During that
period of time, Jake Long wore number 77 for the Wolverines. On the right is a screenshot of
Jake Long from the Madden NFL 2009 football game. The two pictures are virtually identical.

25
26
27
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 86 -

1
2
3
4
5
6
7
8
9
10
11

281. The similarities in the two images are not mere coincidence. Indeed, it would be
nearly statistically impossible for randomly generated players to match so closely their realworld counterparts. Mr. Long and Mr. Jarvis are not unique examples. They were randomly

12
chosen to show how similar almost all players are to their virtual counterparts.
13
14

282. Misappropriation of basketball players is equally egregious. For example,

15

Georgetown All-American center Roy Hibbert is 7’2” – unusually tall even for a college

16

basketball player – and weighs 275 pounds. In the 2007 season, Mr. Hibbert was also an

17

African-American senior from Maryland who often played with an arm or elbow sleeve. He

18
19

also wore jersey number 55 for the Georgetown Hoyas. One would expect a randomly
generated “No. 55” for Georgetown to have, at most, a couple of these characteristics. But here

20
21

is the profile for Georgetown number 55.

22
23
24
25
26
27
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 87 -

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20

283. Number 55 in EA’s NCAA 08 March Madness is clearly supposed to be Mr.
Hibbert. The two match in every respect. Both have the exact same height and weight. Both
are African-American players from Maryland. Both are seniors in the 2007 season, and both

21
are the starting center for the Georgetown Hoyas. In fact, both even wear an arm sleeve.
22
23

284. And like football players, the misappropriation of likenesses is not limited to

24

superstars or top programs. For example, Travis Pinick is a guard/forward who wears number 5

25

for the Yale Bulldogs, a school known more for academics than basketball. Mr. Pinick is 6’7”,

26

weighs 210 pounds, and went to high school in California. Unsurprisingly, virtual “No. 5” for

27

the Bulldogs is also a guard/forward from California with the exact same height and weight.

28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 88 -

1

285. In addition to the physical features, EA even matches players’ idiosyncratic

2

equipment preferences such as wristbands, headbands, facemasks and visors.

3

286. For example, in the 2009 NCAA Football game, Texas Tech wide receiver “No. 5”

4
plays with a back plate under his uniform just like the real number 5, Texas Tech All-American
5
wide receiver Michael Crabtree. Additionally, both are 6’3” red-shirt sophomore wide

6

receivers from Texas.

7
8

287. In the same game, Kansas State quarterback “No. 1” plays with an arm sleeve just

9

like the real number 1, Kansas State All-American quarterback Josh Freeman. Mr. Freeman is

10

also a 6’6”, 250 pound, junior quarterback from Missouri, just like his virtual twin.

11

288. Likewise, Ohio State linebacker “No. 33” plays with thin arm-bands on his upper

12
arm, just below his bicep, wrist wraps and gloves. Interestingly, so does the real number 33,

13

Ohio State All-American, Nagurski Trophy2 winner, and Butkus Award 3 winner, linebacker

14

James Laurinaitis. Both are also 6’3”, 244 pound seniors from Minnesota.

15
16

289. Once again, these are not unique examples. Defendants deliberately and

17

systematically misappropriate players’ likenesses to increase revenues and royalties at the

18

expense of student-athletes.

19
290. In fact, to ensure it matches these unique player equipment preferences as
20
accurately as possible, Electronic Arts sends detailed questionnaires to NCAA team equipment

21

managers to glean precisely the idiosyncratic individual player details.

22

291. When players have unique highly identifiable playing behaviors, ’EA's attempts to

23
24

match those as well.

25

292. EA also matches the virtual player’s home state to the player’s actual home state,

26
27
28

and often lists a city close to the player’s real hometown as the virtual player’s home town.
2
3

The award given to the top defensive player in the country.
The award given to the top college linebacker.

FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 89 -

1
2
3

293. The only detail that EA omits is the real-life player’s name on the jersey of his
electronic equivalent. As one commentator observed, “the omission of players’ names seems
little more than a formality, done with a wink and a nudge.”

4
294. Despite the lack of players’ names on jerseys, gamers rarely if ever distinguish
5
6

between the “real” player and the player in EA’s videogames. For example, through its website

7

www.easportsworld.com, EA allows gamers to post short video clips from the videogame.

8

Clips that feature unique plays are often labeled with actual player names even though they

9

feature only EA’s computer generated simulations.

10
11

295. The omission of players’ names has little consequence because EA has
intentionally designed its game so that players of the game can easily upload entire rosters of

12
13
14

actual player names. Companies such as Gamerosters.com LLC each year release data files that
contain the complete rosters for each NCAA Division I school. These rosters can be placed on

15

a flash drive or memory card, and then easily uploaded to the game. Once uploaded, the default

16

jerseys in the game that contain only players’ numbers are replaced with jerseys that contain

17

both players’ actual names and actual numbers and in-game announcers then refer to players by

18

their real names. These third parties often correct minor and insignificant mistakes in height or

19
weight thus making EA’s representations all the more accurate.
20
21

296. In the most recent versions of its games for the Sony Play Station 3, EA

22

intentionally made the process of obtaining actual player names even easier by allowing players

23

to share rosters online using its “EA Locker” feature. The EA Locker feature allows gamers to

24

upload rosters from other gamers while in the game itself. Prior to the EA Locker, gamers had

25

to download rosters from a computer, upload the files to the gaming console and then transfer

26

the rosters to the game. Now the gamer can obtain full NCAA rosters in a matter of seconds

27
without using a computer. Furthermore, numerous websites, such as
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 90 -

1

www.freencaa09rosters.com, keep a list of players who offer free NCAA rosters utilizing the

2

EA Locker feature.

3

297. EA could easily block users from uploading actual player names and in fact, does

4
block users from uploading certain names, for example, names that contain profanities.
5
6

298. EA additionally encourages and facilitates the use of players’ names and

7

likenesses by allowing gamers to post screen shots – electronic pictures taken from their game –

8

containing players’ real names on its website. For example, the following is a screenshot taken

9

directly from www.easportsworld.com that clearly shows the names of three players from the

10
11

UCLA Bruins. In addition to the names, the virtual players match their real life counterparts in
all other material respects:

12
13
14
15
16
17
18
19
20
21
22
23
24
25

299. The 2010 version of NCAA basketball, which came out after this lawsuit was
filed, proudly points out the realism in the game and the likeness is startling. What you see in

26

the game aims to replicate what you see on a broadcast. Here are a few examples of overlays

27

you will see at different points in the game.

28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 91 -

1

Pre-game

2
3
4
5
6
7
8
9
10
11
12
13
14

Starting Lineups

15
16
17
18
19
20
21
22
23
24
25
26
27
28

300. No. 13 of Stanford is recognizable as Stanford Guard Emmanual Igbinosa and
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 92 -

1

No. 10 is Guard Drew Shiller.

2
3

301. No. 12 in the game, identified as a Junior forward, is recognizable as Duke’s Kyle
Singler, and the remaining starting lineup directly corresponds to actual Duke players with the

4
same jersey numbers.
5
302. These are not isolated examples. These examples do, however, illustrate the

6
7

blatant and continued use of student-athlete likenesses in NCAA-related games, especially

8

when one considers that these images are taken from a game that was released after the filing of

9

this lawsuit.

10
11
12
13

V.

INJURY TO RIGHT OF PUBLICITY CLASS MEMBERS AND PLAINTIFFS
303. Player names and likenesses and publicity rights are extremely valuable, intangible

property. For example, it has been publicly reported that EA paid the NFL Players Union,

14
15
16
17

through their licensing arm, nearly thirty-five million dollars each year for the use of players’
names and likenesses.
304. Despite contractual provisions prohibiting the use of player names and likenesses

18

and in clear violation of the NCAA’s own rules, the NCAA, CLC and EA have agreed between

19

and among each other, and conspired to permit the use of player names and likenesses in EA’s

20

videogames for their own monetary gain and without any compensation to the individual

21
athletes. In furtherance of the conspiracy, EA produced these games improperly using player
22
23

likenesses with the knowledge and consent of the CLC and the NCAA. Specifically, despite

24

their affirmative duties to prevent the utilization of player names and likenesses and in

25

furtherance of the conspiracy, the CLC and the NCAA have intentionally ignored EA’s blatant

26

use of NCAA athlete names and likenesses and in fact have explicitly approved the utilization

27

of NCAA athlete names and likenesses.

28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 93 -

1
2

305. Like virtually every other player, Right of Publicity Plaintiffs had their names and
likenesses replicated in several games.

3
Samuel Michael Keller

4
5

306. Right of Publicity Plaintiff Sam Keller enrolled at Arizona State on a scholarship

6
offer in 2003, as the ninth-ranked quarterback in his class. He played in six games as a true
7
8
9

freshman, passing for 247 yards and a touchdown.
307. In 2004, as a sophomore, Keller played back-up to senior Andrew Walter. He

10

played in only six games, but threw for 606 yards and five touchdowns with only one

11

interception. Keller earned his first career start in the Sun Bowl against Purdue, leading a

12
13

fourth-quarter comeback victory with 370 yards and three touchdowns. He earned the Sun
Bowl Most Valuable Player Award.

14
15
16

308. As a junior in 2005, Keller played well in his first four games of the season. He
had 461 yards against LSU, followed up by 409 yards against Northwestern. He continued with

17

300-yard performances against USC and Oregon State. In just four games, he passed for 1,582

18

yards. Unfortunately, he suffered an injury that limited him to only three more starts.

19

Nonetheless, he finished the season with 2,165 yards and 20 touchdowns in just over six full

20

games. To put this into perspective, over his six and one-half games, he averaged over three

21
touchdowns per game. This average would be higher than the averages of all quarterbacks
22
23

playing a full season that year—this includes Matt Leinart, Michael Vick, Brady Quinn, Vince

24

Young, Jay Cutler and Colt Brennan. If he wasn’t injured and his performance stayed at this

25

level, he would have likely entered the NFL draft as a highly touted quarterback with almost 40

26

touchdowns and close to 4000 yards.

27

309. In 2006, Keller transferred from Arizona State to the University of Nebraska. Due

28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 94 -

1

to NCAA transfer rules, he was forced to sit out his senior season, but red-shirted to save his

2

final year of eligibility.

3

310. In 2007, as a red-shirt senior, Keller finished the season with 2,422 yards and 14

4
touchdowns in nine games. Keller also set a Nebraska career and single-season record by
5
6
7

completing 63.1 percent of his passes, as well as a record for passing yards per game in a single
season and career.

8

311. Keller wore number 9 on his jersey at Arizona State. The virtual player who wears

9

number 9 for Arizona State in NCAA Football 2005 has the same height, weight, skin tone, hair

10
11

color, hair style, handedness, home state, play style (pocket passer), visor preference, and facial
features as Sam Keller. Player number 9 is also the starting quarterback for Arizona State and

12
13
14

his school year corresponds with Keller’s school year.
312. Upon his arrival at Nebraska, Keller wore number 5, which he kept throughout

15

2006. He continued to use number 5 during the spring game in 2007, but later, shortly before

16

playing in his first game at Nebraska in fall 2007, Keller switched to number 9.

17
18

313. The 2008 game, however, was researched before Keller made his switch, perhaps
as early as 2007 when Keller was a red-shirt senior (not playing for a year), and was too late to

19
catch Keller’s abrupt switch to number 9. Although named by year, the game incorporates the
20
21
22
23

team that began playing the preceding year—e.g., the 2007-2008 team would appear in the
2008 game.
314. Virtual player number 5 has the same height, weight, skin tone, home state,

24

handedness, and facial features as Sam Keller. Virtual player number 5 is also the starting

25

quarterback for the University of Nebraska. Remarkably, the virtual player also wears a dark

26

visor, which Keller wore for the first time at Nebraska. But Keller only wore it prior to his first

27
real game, switching at that time to a clear visor. That is, he only wore a dark visor when he
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 95 -

1

was wearing the number 5 jersey.

2

315. The virtual Nebraska player wearing number 5 a year before Keller played at

3

Nebraska was a senior wide receiver from North Carolina who was African American, 6’1,”

4
and 195 pounds. This virtual player’s description perfectly describes the actual player, Shamus
5
McKoy.

6

316. It is not coincidental that the virtual number 5 is virtually identical in all material

7
8

respects to the former Arizona State quarterback who just transferred to Nebraska. Compare

9

the two images and it is obvious they are not randomly generated:

10
11

//
//

12
13
14

//
//

15

//

16

//

17

//

18

//

19
//
20
21

//

22

//

23

//

24

//

25
26
27
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 96 -

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 97 -

1

Keller, a graduate of the University of Nebraska with a degree in Political Science, never

2

consented to the use of his name or likeness in any Electronic Arts product.

3
Bryan Christopher Cummings

4
5

317. Right of Publicity Plaintiff Bryan Cummings enrolled at the The State University

6
of New York at Buffalo on a scholarship offer in 2002. He started eight games as a true
7
8
9
10
11
12
13

freshman at middle linebacker.
318. In 2003, as a sophomore, Cummings started all 11 games at middle linebacker, and
was fifth on the team in tackles.
319. As a junior in 2004, Cummings was voted captain (the only junior captain), started
every game and was second on the team in tackles.
320. In 2005, as a senior, Cummings was unanimously chosen as team captain, started

14
15
16

every game and was second on the team in tackles.
321. Cummings wore number 46 throughout his career at the University at Buffalo.

17

According to the official school roster, Mr. Cummings was 6’3 and weighed 223 pounds his

18

junior year and 226 pounds his senior year. Cummings finished his career with top ten school

19

records in career tackles, career solo tackles, and forced fumbles.

20

322. The virtual player who wears number 46 for the University of Buffalo in NCAA

21
Football 2005 has the same height, weight, skin tone, hair color, hair style, handedness, home
22
23
24
25

state (Ohio), and facial features as Bryan Cummings. Player number 46 is also the starting
middle linebacker for the University at Buffalo.
323. In addition to having a virtual player in NCAA Football 2005 that matches

26

Cummings in almost all aspects, there is an actual picture of Cummings in NCAA Football

27

2010 that is shown when a player selects the University of Buffalo as his or her team.

28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 98 -

1

Cummings never consented to any use of his likeness, image, or picture by EA Sports.

2
3

324. Right of Publicity Plaintiff Bryon Bishop is a South Carolina resident and the
former starting left guard for the University of North Carolina football team.

4
325. Bishop enrolled at the University of North Carolina in 2004. He did not play in
5
6

his freshman season. Instead, he took a “red-shirt” year that preserved four years of NCAA

7

eligibility. He did not play in 2005 due to a back injury, but saw action in five football games

8

as a sophomore in 2006.

9
10
11

326. In 2007, Bishop’s junior year, he played in two football games at left guard. And
in 2008, as a red-shirt senior, Bishop started in four games at left guard and played in nine
games.

12
13
14

327. Bishop wore North Carolina jersey number 76. In 2007, Bishop was officially
listed at 6’3” and weighed 300 pounds. In 2008, Bishop was officially listed at 6’4” and

15

weighed 310 pounds. The player who wears number 76 for North Carolina in NCAA Football

16

2008 and 2009 has the same height, weight, skin tone, hair color, hair style and home state as

17

Bryon Bishop.

18

328. North Carolina player number 76 is also the starting left guard for the University

19
of North Carolina in NCAA Football 2009, and his school year corresponds with Bishop’s
20
21

school year . Bishop never consented to any use of his likeness or image by EA Sports.

22

Lamarr Watkins

23
24

329. Right of Publicity Plaintiff Lamarr Watkins enrolled at the University of

25

Wisconsin – Madison in 2002. As a true freshman, Watkins played in all 14 games, including

26

starts at outside linebacker in each of the final six games.

27

330. As a sophomore, Watkins played in 12 of 13 games, including two starts at

28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 99 -

1

linebacker, and was a standout on special teams. As a junior, Watkins played in five games. In

2

2005, Watkins started all 13 games, including a bowl game against Auburn University.

3

331. Watkins wore number 24 on his jersey at Wisconsin. The virtual player who

4
wears number 24 for Wisconsin in NCAA Football 2004 and 2005 has the same height, weight,
5
6
7
8
9

skin tone, hair color, hair style, handedness, home state (2005 only), and facial features as
Watkins.
332. Player number 24 is also a sophomore right outside linebacker for Wisconsin, just
like Watkins. Watkins never consented to any use of his image or likeness by EA Sports.

10
Ryan Hart

11
12
13

333. Right of Publicity Plaintiff Ryan Hart enrolled at the University of Rutgers in
2002. As a true freshman, Ryan Hart played in 5 games in the 2002 season.

14
15
16

334. As a sophomore, Hart started all 12 games at quarterback. As a junior, Hart
started 11 games at quarterback. In 2005, Hart played quarterback for Rutgers in 11 games.

17

That season, Hart led Rutgers to the Insight Bowl against Arizona State at Sun Devil Stadium,

18

which was the first bowl appearance for Rutgers since 1978.

19
20

335. Hart wore number 13 on his jersey at Rutgers. The virtual player who wears
number 13 for Rutgers in NCAA Football 2004, 2005 and 2006 has the same height, weight,

21
skin tone, hair color, hair style, handedness, home state, and facial features as Hart.
22
23
24
25
26
27

336. Hart wore a left wrist band during games. The virtual player who wears number 13
for Rutgers in NCAA Football 2004, 2005 and 2006 also wears a left wrist band. Exhibit B-F.
337. Hart’s speed, agility and passing accuracy ratings match up with the actual
footage.
338. Ryan Hart’s image and likeness was used in the 2009 edition of EA’s NCAA

28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 100 -

1

Football game, wherein an image and/or video footage of Hart throwing a pass during the

2

Insight Bowl game against Arizona State was utilized.

3

339. Hart never consented to any use of his image or likeness by EA Sports.

4
340. Unquestionably,

Defendant

EA

has

copied,

recreated

and

otherwise

5
6
7

misappropriated plaintiff Ryan Hart’s identity and likeness as a quarterback on the Rutgers
University Football team without his consent, authorization or permission.

8

341. This misappropriation of Ryan Hart’s name, image, and likeness was committed

9

with the intent of increasing the sales and profits for the EA since the heightened realism in

10
11

NCAA Football video games translates directly into increased sales and revenues for EA.
Consumers of these video games demand that these “virtual” football matches simulate actual

12
13
14
15

college football matches in the most realistic manner possible, including the use of the “virtual”
players that are modeled after real-life NCAA Football players such as Rutgers University
quarterback, Ryan Hart.

16

Shawne Alston

17
18

342. Plaintiff Shawne Alston was a heavily recruited three-star athlete from Hampton
Virginia. In high school, Alston ran for over 2400 yards and 38 touchdowns and was named a

19
first team all-state running back his senior year. After leading Phoebus High School to a
20
21
22

Virginia state championship, the high school football star committed to play at West Virginia
University.

23

343. Alston enrolled at WVU in the summer of 2009 and graduated three years later.

24

After graduating, he continued taking classes at WVU until enrolling in graduate school in

25

2013.

26

344. Alston played his first football game at WVU in the fall 2009 as a true freshman.

27
In the official roster, he was listed as No. 35, a 6’0”, 218-pound freshman running back from
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 101 -

1

Hampton, Virginia. Alston only had one recorded running statistic during his freshman year,

2

and played mostly on special teams and in pass blocking schemes.

3

345. For his sophomore year (2010-2011), Alston switched to No. 34. In the official

4
roster, he was listed as a 5’11”, 222-pound sophomore running back from Hampton, Virginia.
5
346. In the 2011 NCAA Football game, virtual No. 34 4 has the same height, weight,

6
7

position, home state, skin tone, hair color, facial features, and handedness as Alston. Both are

8

also the backup running back for the WVU Mountaineers.

9
10
11

347. During his junior year (2011-2012), Alston switched to jersey No. 20. In the WVU
official roster, he was listed as a 5’11”, 221-pound junior running back from Hampton,
Virginia. That year, Alston led his team in touchdowns and yards per carry. The WVU

12
13
14

Mountaineers were ranked in the top 25 for most of the season and played Clemson in the BCS
Orange Bowl. The WVU Mountaineers were underdogs against the 14th ranked Clemson

15

Tigers. Alston and his fellow Mountaineers, however, would go on to crush the Tigers 70-33

16

and set several bowl records for scoring.

17
18

348. In the 2012 NCAA Football game, virtual No. 20 has the same height, weight,
position, home state, skin tone, hair color, facial features, and handedness as Alston. Both are

19
also the backup running back for the WVU Mountaineers.
20
349. During his senior year (2012-2013), Alston continued to wear No. 20 and was

21
22

listed as a 5’11”, 236-pound senior running back from Hampton, Virginia in the team’s official

23

roster. That year, Alston scored seven touchdowns and again led his team in yards per carry.

24

The team was ranked as high as eighth in the nation during the year, and went on to play in the

25

Pinstripe Bowl against Syracuse University.

26

350. In the 2013 NCAA Football videogame, virtual No. 20 has virtually the same

27
28

4

Alston wore No. 20 in practice.

FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 102 -

1

height, weight, position, home state, skin tone, hair color, facial features, and handedness as

2

Alston. Both are also the backup running back for the WVU Mountaineers.

3

351. Alston’s virtual doppelganger—WVU No. 20—also appears on the back cover of

4
the 2013 NCAA Football game for the Xbox—thousands of copies of which were sold or
5
6

caused to be sold by EA in New Jersey.

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23

352. Above Alston’s virtual twin, is Robert Griffin III. Mr. Griffin was paid—after

24

exhausting his collegiate eligibility and becoming a professional player—to appear on the back

25

cover of the game. Plaintiff and the other students on the back cover were not paid for use of

26

their likenesses, nor did they consent to the use.

27

353. In 2013, after completing his college career and graduating from WVU, Alston

28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 103 -

1

signed a free agent contract with the New Orleans Saints. Alston was released in June 2013 and

2

retired from organized football shortly thereafter.

3

354. Alston is now in graduate school pursuing a Master’s degree in Business

4
Administration.
5
6

VI.

COMMON COURSE OF CONDUCT EMANATING FROM
CALIFORNIA AND INDIANA

7
8
9

355. EA is headquartered in Redwood City, California and is therefore a California
resident and citizen. As a California resident and citizen, Electronic Arts is subject to

10

California laws. Moreover, the primary executives responsible for negotiating the licensing

11

agreements for NCAA games reside and work in California. Upon information and belief, the

12

administration of licenses and negotiation of contracts with the NCAA and CLC have required

13

frequent contact in Indiana by EA, including but not limited to meeting at the NCAA’s

14
headquarters in Indiana. Further, EA has used and continues to use Right of Publicity
15
16

Plaintiffs’ and class members’ likenesses in Indiana by selling – as well as promoting and

17

advertising – its games in Indiana, causing its games to be sold in Indiana, transporting its

18

games into Indiana, causing its games to be transported into Indiana, and by, upon information

19

and belief, sending personnel to NCAA members schools located in Indiana to use student-

20
21

athletes likenesses to help them form its game images. EA’s personnel obtain information
regarding player equipment preferences, playing style and appearances for use in its games to

22
23
24

increase realism by creating virtual payers that approximate their real-life counterparts as
realistically as possible.

In addition, through its website www.easportsworld.com and other

25

similar and successor websites, EA has knowingly and intentionally published, disseminated,

26

distributed and exhibited player likenesses in Indiana.

27

356. The NCAA has its principal place of business in Indiana and is therefore an

28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 104 -

1

Indiana resident and citizen. As an Indiana resident and citizen, the NCAA is subject to Indiana

2

laws. The primary executives responsible for negotiating the licensing agreements for the

3

NCAA games produced by EA reside and work in Indiana. Approval to unlawfully utilize

4
player likenesses was granted by NCAA executives located in Indiana. Upon information and
5
6

belief, the administration of licenses and negotiation of contracts with the NCAA and CLC has

7

required frequent contact with California, including but not limited to meetings at Electronic

8

Arts’ headquarters in California regarding player likenesses and frequent reaching out to

9

individuals in the state via interstate wires and the internet. Further, the NCAA has approved

10
11

and facilitated EA personnel visiting member schools for the purpose of using player likenesses
to develop the virtual players in its games. They have done so because EA’s use of player

12
13
14

names and likenesses benefits the NCAA by increasing the popularity of the relevant games and
thus the royalties that the NCAA and CLC can collect.

15

357. The CLC has its principal headquarters in Atlanta, Georgia. Its contracts with the

16

NCAA were negotiated in Indiana and are governed by Indiana law. The administration of the

17

contracts, including the provisions regarding player likenesses, requires frequent contact and

18

travel to Indiana. Its contracts with EA were negotiated, in whole or in part, with executives

19
located in California and are subject to California law. The administration of the contracts,
20
21

including the provisions regarding player likenesses, requires frequent contact with California.

22

In negotiating and executing the player likeness provisions of the license with Electronic Arts,

23

CLC was directed by the NCAA and executives of the NCAA in Indiana.

24
25
26

VII.

RIGHT OF PUBLICITY CLASS ACTION ALLEGATIONS

358. Keller Right of Publicity Plaintiffs sue on their own and on behalf of a class of
persons pursuant to Federal Rule of Civil Procedure 23. The putative Keller Right of Publicity

27
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 105 -

Class 5 is defined as:

1
2

Virtual Player Class:

3

5

All NCAA football and basketball players listed on the official
opening-day roster of a school whose team was included in any
interactive software produced by Electronic Arts, and whose assigned
jersey number appears on a virtual player in the software.

6

Photograph Class:

4

7

All persons whose photographed image was included in any NCAArelated interactive software produced by Electronic Arts.

8
9

359. Hart/Alston Right of Publicity Plaintiffs sue on their own and on behalf of a class

10

of persons pursuant to Federal Rule of Civil Procedure 23. The putative Hart/Alston Right of

11

Publicity Class is defined as:

12
All NCAA football and basketball players listed on the opening day
roster of a school whose team was included in an NCAA Branded
Videogame published or distributed during the Hart/Alston Right of
Publicity Class Period, and either had their assigned jersey number
appear on a virtual player in the software or had their image or likeness
otherwise included in the software.

13
14
15
16

360. Excluded from the classes are Defendants, their employees, co-conspirators,
17
officers, directors, legal representatives, heirs, successors and wholly or partly owned

18
19

subsidiaries or affiliated companies, class counsel and their employees, and the judicial officers,

20

and associated court staff assigned to this case. Also excluded from the Virtual Player Class are

21

the limited number of players whose assigned jersey number appears in the game, but the

22

virtual players’ height is not within one inch of the player’s roster height and the virtual player’s

23

weight is not within 10% of the player’s roster weight. Also excluded from the Photograph

24
Class are those people who gave written consent to be included in the NCAA-related interactive
25
26

5

Though it consists of two components, the Right of Publicity class is, for convenience, referred to
throughout in the singular.

27
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 106 -

1

software produced by Electronic Arts. For purposes of the Civil Conspiracy and Breach of

2

Contract claims only, excluded from the Photograph Class are persons who did not sign form

3

08-3a.

4
361. The persons in each Right of Publicity Class described above are so numerous that
5
6

individual joinder of all members is impracticable under the circumstances of this case.

7

Although the precise number of such persons is unknown, the exact size of each Right of

8

Publicity Class is easily ascertainable, as each class member can by identified by using

9

Defendants’ records. Plaintiffs are informed and believe that there are many thousands of class

10
11

members in each Right of Publicity Class.
362. There are common questions of law and fact specific to each Right of Publicity

12
13

Class that predominate over any questions affecting individual members, including:

15
16

(a)

Whether Electronic Arts utilizes NCAA player likenesses in its
videogames;

(b)

Whether such use is unlawful;

(c)

Whether NCAA’s duty of good faith and fair dealing requires them to
protect players’ likeness rights when dealing with Electronic Arts,

(d)

Whether NCAA and CLC have conspired with Electronic Arts to illegally
use players’ likenesses,

(e)

Whether Defendants have authorized, approved, or permitted Electronic
Arts’ use of NCAA player likenesses in its videogames;

(f)

Whether Electronic Arts’ conduct violates Indiana Code § 32-36-1-1;

(g)

Whether Electronic Arts’ conduct violates California Civil Code § 3344;

(h)

14

Whether Electronic Arts’ conduct constitutes an unfair trade practice;

(i)

Whether class members have been damaged by Defendants’ conduct and
the amount of such damages;

(j)

Whether treble damages are appropriate and the amount of such damages;

(k)

Whether punitive damages are appropriate and the amount of such
damages;

17
18
19
20
21
22
23
24
25
26
27
28

FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 107 -

1

(l)

Whether statutory damages are appropriate and the amount of such
damages; and

(m)

Whether Defendants should disgorge their unlawful profits and the amount
of such profits.

2
3
4

363. For each respective Right of Publicity Class described above, the proposed class

5
representatives’ claims for each class are typical, as they arise out of the same course of conduct
6
7

and the same legal theories as the rest of putative class’s claims, and Right of Publicity

8

Plaintiffs challenge the practices and course of conduct engaged in by Defendants with respect

9

to each class as a whole.

10
11
12

364. Plaintiffs The proposed class representative for each Right of Publicity Class
described above will fairly and adequately protect the interests of the class. They will
vigorously pursue the claims and have no antagonistic conflicts. Right of Publicity Plaintiffs

13
14
15
16

have retained counsel who are able and experienced class action litigators and are familiar with
the videogame industry.
365. Defendants have acted or refused to act on grounds that apply generally to each

17

Right of Publicity Class, and final injunctive relief or corresponding declaratory relief is

18

appropriate respecting each class as a whole. A class action is also appropriate because

19

Defendants have acted and refuse to take steps that are, upon information and belief, generally

20
applicable to thousands of individuals, thereby making injunctive relief appropriate with respect
21
22

to each Class as a whole. Questions of law or fact common to class members predominate over

23

any questions affecting only individual members. Resolution of this action on a class-wide

24

basis is superior to other available methods and is a fair and efficient adjudication of the

25

controversy because in the context of this litigation no individual class member can justify the

26

commitment of the large financial resources to vigorously prosecute a lawsuit against

27

Defendants. Separate actions by individual class members would also create a risk of

28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 108 -

1

inconsistent or varying judgments, which could establish incompatible standards of conduct for

2

Defendant and substantially impede or impair the ability of class members to pursue their

3

claims. It is not anticipated that there would be difficulties in managing this case as a class

4
action.
5
6

ANTITRUST ALLEGATIONS

7
8
9
10
11
12
13
14
15
16
17
18
19

CLASS ACTION ALLEGATIONS WITH RESPECT TO ANTITRUST CLAIMS
366. Antitrust Plaintiffs bring this action under Federal Rule of Civil Procedure
23(b)(2) and (b)(3) on their own behalf and on behalf of the following Antitrust Classes:
The “Antitrust Declaratory and Injunctive Relief Class”:
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 or could have been included (by virtue of their appearance
in a team roster) in game footage or in videogames licensed or sold
by Defendants, their co-conspirators, or their licensees. The Class
excludes the officers, directors, and employees of Defendants, the
officers, directors and employees of any NCAA Division I college
or university, and the officers, directors, or employees of any
NCAA Division I athletic conference.
The “Antitrust Damages Class”:

20
21
22
23
24
25
26
27

All former student-athletes residing in the United States who
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 whose images,
likenesses and/or names have been included or could have been
included (by virtue of their appearance in a team roster) in game
footage or in videogames licensed or sold by Defendants, their coconspirators, or their licensees from July 21, 2005 and continuing
until a final judgment in this matter. The class excludes current
student-athletes. The Class also excludes the officers, directors,
and employees of Defendants, the officers, directors, and
employees of any NCAA Division I college or university, and the

28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 109 -

1
2
3

officers, directors, or employees of any NCAA Division I athletic
conference.

367. As utilized above, the term “former student athletes” refers to those individuals

4
that have permanently ceased competing on teams because of, for example, graduation;
5
6

exhaustion of eligibility; injury; voluntary decisions to cease competition; and involuntary

7

separations from teams due to decisions by coaches, schools, conferences, and/or the NCAA,

8

and also includes those individuals that subsequently became professional athletes, whether

9

prior to or after the exhaustion of their intercollegiate eligibility, and further includes current

10
11

students that have remained in school but ceased competing on a collegiate athletic team. The
term “current student-athlete” refers to those individuals that are presently competing on NCAA

12
13
14
15
16
17
18

Division I basketball and FBS football teams.In addition to seeking certification of nationwide
classes for the antitrust claims, Plaintiffs also seek certification of a nationwide class for
purposes of their unjust enrichment / constructive trust and accounting claims.
368. Antitrust Plaintiffs do not know the exact number of Antitrust Class members,
because that information is in the exclusive control of Defendants and third parties, including
the NCAA’s members. However, due to the nature of the trade and commerce involved,

19
Plaintiffs believe that the Antitrust Class members number in the thousands and are
20
21

geographically diverse so that joinder of all Antitrust Class members is impracticable. Given

22

that the NCAA is selling and licensing the images, likenesses and/or names of players from

23

many decades, as described herein, it stands to reason that there are more former student

24

athletes than current ones affected by the NCAA’s anticompetitive practices described herein.

25
26

369. There are questions of law and fact common to members of both the Antitrust
Damages Class and the Antitrust Declaratory and Injunctive Relief Class, including but not

27
limited to the following:
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 110 -

1

a.

whether Defendants and their co-conspirators engaged in or
entered into a contract, combination, or conspiracy among
themselves to fix, depress, maintain, and/or stabilize prices
paid to Antitrust Class members for use of their images,
likenesses and/or names during and after the conclusion of
their participation in intercollegiate athletics;

b.

whether Defendants’ unlawful conduct has enabled them to
decrease, maintain, or stabilize below competitive levels
the output, and compensation / royalties that Antitrust Class
members would receive for use, of their images, likenesses
and/or names in a market free of anticompetitive
constraints;

c.

the duration of the contract, combination, or conspiracy
alleged herein;

d.

whether Defendants violated Section 1 of the Sherman Act;

e.

whether Defendant NCAA’s Form 08-03a, and any similar
forms, are void and unenforceable;

f.

whether Defendant NCAA’s “Institutional, Charitable,
Educational, or Nonprofit Promotions Release Statement,”
and any similar forms, are void and unenforceable; and

g.

whether the conduct of Defendants and their coconspirators caused injury to the business or property of
Plaintiffs and Antitrust Class members.

2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

370. Additional common questions of law of fact specific to the Antitrust Damages
Class include the following:
a. the appropriate measure of damages sustained by Plaintiffs and class members;
and
b. whether Defendants have been unjustly enriched.
371. The common questions with respect to the Antitrust Damages Class predominate
over questions, if any, that affect only individual Antitrust Damages Class members.
372. With respect to the Antitrust Declaratory Relief and Injunctive Relief Classes,
common questions of law or fact include the following:
a. whether injunctive relief is appropriate;

28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 111 -

1
2
3
4
5

b. if injunctive relief is appropriate, what types of such relief are suitable in this
matter;
c. whether declaratory relief is appropriate;
d. whether a constructive trust for the benefit of class members should be
established; and
e.

whether an accounting is appropriate.

6
373. With respect to members of the Antitrust Declaratory and Injunctive Relief Class,
7
8
9
10
11
12
13

Defendants have acted or refused to act on grounds generally applicable to the Antitrust Class,
thereby making appropriate final injunctive relief or corresponding declaratory relief with
respect to the Antitrust Declaratory and Injunctive Relief Class as a whole.
374. Antitrust Plaintiffs’ claims are typical of, and not antagonistic to, the claims of the
other Antitrust Class members. By advancing their claims, Antitrust Plaintiffs will also
advance the claims of all Antitrust Class members, because Defendants participated in activity

14
15
16

that caused all Antitrust Class members to suffer similar injuries.
375. Antitrust Plaintiffs and their counsel will fairly and adequately protect the interests

17

of absent Antitrust Class members. There are no material conflicts between Antitrust Plaintiffs’

18

claims and those of absent Antitrust Class members that would make class certification

19

inappropriate. Counsel for Antitrust Plaintiffs are highly experienced in complex class action

20

litigation, including antitrust litigation, and will vigorously assert Plaintiffs’ claims and those of

21
absent Antitrust Class members.
22
23

376. A class action is superior to other methods for the fair and efficient resolution of

24

this controversy. The class action device presents fewer management difficulties, and provides

25

the benefit of a single adjudication, economy of scale, and comprehensive supervision by a

26

single court. The damages suffered by Antitrust Plaintiffs and each Antitrust Damages Class

27

member are relatively small as compared to the expense and burden of individual prosecution of

28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 112 -

1

the claims asserted in this litigation. Thus, absent class certification, it would not be feasible for

2

Plaintiffs and Antitrust Class members to redress the wrongs done to them. It also would be

3

grossly inefficient for the judicial system to preside over large numbers of individual cases.

4
Further, individual litigation presents the potential for inconsistent or contradictory judgments
5
6

and would greatly magnify the delay and expense to all parties and to the judicial system.

7

Therefore, the class action device presents far fewer case management difficulties and will

8

provide the benefits of unitary adjudication, economy of scale, and comprehensive supervision

9

by a single court.

10
THE NCAA AND ITS CONTROL OF THE COLLEGIATE LICENSING MARKET

11

377. Each year, the colleges and universities who are members of the NCAA award

12
13
14
15
16
17
18
19
20
21
22
23
24
25

more than 11,500 athletic scholarships to men’s football and basketball players.
A.

The NCAA and its Structure and Governance.
378. In its Consolidated Statement of Financial Position, dated August 31, 2008, the

NCAA stated the following:
The National Collegiate Athletic Association (the NCAA or the
Association) is an unincorporated not-for-profit educational
organization founded in 1906. The NCAA is the organization
through which the colleges and universities of the nation speak and
act on athletics matters at the national level. It is a voluntary
association of more than 1,000 institutions, conferences and
organizations devoted to the sound administration of
intercollegiate athletics in all its phases. Through the NCAA, its
members consider any athletics issue that has crossed regional or
conference lines and is national in character. The NCAA strives
for integrity in intercollegiate athletics and serves as the colleges’
national athletics accrediting agency. A basic purpose of the
NCAA is to maintain intercollegiate athletics as an integral part of
the educational program and the athlete as an integral part of the
student body.

26
27
28

The NCAA operates through a governance structure which
empowers each division to guide and enhance their ongoing
division-specific activities. In Division I, the legislative system is
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 113 -

1

8

based on conference representation and an eighteen member Board
of Directors that approves legislation. The Division II and III
presidential boards are known as the Presidents Council; however,
legislation in Division II and III is considered through a oneschool, one-vote process at the NCAA Annual Convention. The
governance structure also includes an Executive Committee
composed of sixteen chief executive officer (member institution
chief executive officers) that oversee association-wide issues
which is charged with ensuring that each division operates
consistently with the basic purposes, fundamental policies and
general principles of the NCAA. The Executive Committee has
representation from all three divisions and oversees the
Association’s finances and legal affairs.

9

379. On its website, the NCAA further describes itself as being “comprised of

2
3
4
5
6
7

10
11

institutions, conferences, organizations and individuals committed to the best interests,
education and athletics participation of student-athletes.” The NCAA further states that its

12
13
14

members are the “colleges, universities and conferences that make up the NCAA,” and that
“[t]he members appoint volunteer representatives that serve on committees which introduce and

15

vote on rules called bylaws. The members also establish programs to govern, promote and

16

further the purposes and goals of intercollegiate athletics.”

17
18

380. According to the NCAA, “[m]any believe the Association rules college athletics;
however, it is actually a bottom-up organization in which the members rule the Association.”

19
381. The NCAA has established a constitution, bylaws, regulations, rules,
20
21

interpretations, and policies, both written and unwritten, which regulate all aspects of collegiate

22

athletics. For example, the 2008-09 NCAA “Division I Manual,” which is discussed in more

23

detail below, is comprised of the NCAA’s Constitution, its Operating Bylaws, and its

24

Administrative Bylaws, which together span more than 400 pages.

25
26

382. The NCAA has also established an enforcement program to ensure that institutions
and student-athletes comply with NCAA rules. Through the enforcement program, the NCAA

27
has the authority to impose severe penalties on member schools and student-athletes for non28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 114 -

1
2

compliance.
B.

The Challenged Restraints.

3
383. The right to control the use of one’s name, image, and likeness is a property right
4
5

with economic value. Notwithstanding the existence of this right and its accompanying

6

economic value, Defendants and their co-conspirators have conspired to use the names, images,

7

and likenesses of current and former student athletes without compensation for the use.

8
9
10

384. Defendants and their co-conspirators have engaged and continue to engage in an
overarching conspiracy to: (a) fix the amount current and former student athletes are paid for
the licensing, use, and sale of their names, images, and likenesses at zero; and (b) foreclose

11
12
13
14

current and former student athletes from the market for the licensing, use, and sale of their
names, images, and likenesses.
385. The conspiracy has both horizontal and vertical aspects. The horizontal aspects

15

emanate from the fact that NCAA member schools are horizontal competitors—they compete

16

for student-athletes but have restrained this competition by agreeing not to do so on the basis of

17

compensation to student-athletes for any purpose. See, e.g., American Needle, Inc. v. National

18
Football League, 560 U.S. 183 (2010). There is virtual unanimity among economists that the
19
20
21
22

NCAA is a cartel. Indeed, one economist has described the NCAA as “the best little monopoly
in America.”
386. The vertical aspects emanate from the fact that EA, CLC and other unnamed co-

23

conspirators, including affiliates, predecessors, and successors of CLC, are or were vertical

24

business partners of the NCAA and its member schools and conferences. In order to avoid

25

undermining their horizontal conspiracy, the NCAA and its member schools and conferences

26
agree to impose and EA, CLC and other unnamed co-conspirators agree to abide by the same
27
28

compensation restrictions as a means of restraining competition.
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 115 -

1
2
3

387. The alleged restraints are effectuated through the NCAA’s constitution, bylaws,
regulations, rules, interpretations, and policies, both written and unwritten, by purported release
forms disseminated by the NCAA and by its member conferences and schools, by the NCAA’s

4
administrative interpretations of its bylaws and rules, by the agreements of non-NCAA
5
6

members like EA and CLC to be bound by those bylaws and rules, and by the efforts of EA and

7

CLC to obtain administrative interpretations or agreement otherwise that permit them to exploit

8

the names, images, and likenesses of current and former student-athletes.

9
10
11

388. These various constitutional provisions, bylaws, regulations, rules, interpretations,
and policies, include NCAA Constitution 3.2.4.6 and Bylaws 2.8; 12.02.2; 12.02.3; 12.1.2;
12.1.2.1; 12.5.1.1.1; 12.5.1.7; 12.5.1.8; 12.5.2.1; 12.5.2.2; 13.2.1; 14.1.3.1; 14.1.3.2; 16.01;

12
13
14
15

16.02.4; 18.4.2.1; 22.2.1.2; 31.6.4; 31.6.4.3 (“Bylaws”), and their predecessors, as interpreted
by NCAA Membership Services.
389. As the NCAA’s website explains: “Bylaw 12 and other legislation are highly

16

nuanced in language and implementation to insure that student-athletes do not receive benefits

17

that could be construed as remuneration for athletics participation, do not trade on their public

18

standing as a student-athlete, and are not exploited by professional or commercial interests that

19
would abridge their status as amateurs in their sport.”
20
21
22
23

390. Some of the specific NCAA bylaws, constitutional provisions, and standardized
forms that create this restraint are discussed below.
391. Bylaw 12.5.1.1.1 and related forms, bylaws and constitutional provisions. One

24

of the NCAA bylaws at issue is Bylaw 12.5.1.1.1 (“Promotions Involving NCAA

25

Championships, Events, Activities or Programs”) states the following:

26
27
28

The NCAA [or a third party acting on behalf of the NCAA (e.g.,
host institution, conference, local organizing committee)] may use
the name or picture of an enrolled student-athlete to generally
promote NCAA championships or other NCAA events, activities or
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 116 -

1
2
3

programs.
392. Before a student-athlete commences athletic participation each year, the NCAA
requires that he or she sign its “Form 08-3a” (attached as Exhibit A) (or its predecessors and

4
successors) titled “Student-Athlete Statement.” The form is of particular importance due to its
5
6

provision regarding student-athletes’ release of rights in connection with use of their images,

7

likenesses and/or names. It appears that the title of this form changes each year in connection

8

with the applicable year.

9
10
11

393. The mandatory nature of the form on which student-athletes must agree to the
terms of Bylaw 12.5.1.1.1 is detailed in the Constitution and Bylaws. Specifically, Article
3.2.4.6 of the Constitution (“Student-Athlete Statement”) states the following:

12
13
14
15
16
17
18
19
20
21
22
23
24
25

An active member shall administer annually, on a form prescribed
by the Legislative Council, a signed statement for each studentathlete that provides information prescribed in Bylaws 14.1.3 and
30.12.
394. Bylaw 14.1.3.1 (“Content and Purpose”), referred to in Article 3.2.4.6 of the
Constitution, details the contents of the required form and states the following:
Prior to participation in intercollegiate competition each academic
year, a student-athlete shall sign a statement in a form prescribed by
the Legislative Council in which the student athlete submits
information related to eligibility, recruitment, financial aid, amateur
status, previous positive drug tests administered by any other
athletics organization and involvement in organized gambling
activities related to intercollegiate or professional athletics
competition under the Association’s governing legislation. Failure
to complete and sign the statement shall result in the studentathlete’s ineligibility for participation in all intercollegiate
competition. Violations of this bylaw do not affect a studentathlete’s eligibility if the violation occurred due to an institutional
administrative error or oversight, and the student-athlete
subsequently signs the form; however, the violation shall be
considered an institutional violation per Constitution 2.8.1.

26
27
28

395. Bylaw 14.1.3.2 (“Administration”) continues that “[t]he institution shall administer
this form individually to each student-athlete prior to the individual’s participation in
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 117 -

1

intercollegiate competition each year. Details about the content, administration, and disposition

2

of the statement are set forth in Bylaw 30.12.”

3

396. Bylaw 30.12 (“Student-Athlete Statement”), referred to in Article 3.2.4.6 of the

4
Constitution and in Bylaw 14.1.3.2, states the following:
5
6
7
8
9
10
11

The following procedures shall be used in administering the
student-athlete statement required in Bylaw 14.1.3:
(a) The statement shall be administered individually to each
student-athlete by the athletics director or the athletics
director’s designee prior to the student’s participation in
intercollegiate competition each academic year;
(b) The statement shall be kept on file by the athletics director and
shall be available for examination upon request by an
authorized representative of the NCAA; and

12
13
14
15

(c) The athletics director shall promptly notify in writing the vice
president of NCAA’s education services group regarding a
student-athlete’s disclosure of a previous positive drug test
administered by any other athletics organization.
397. Form 08-3a states that it is “required by NCAA Constitution 3.2.4.6 and NCAA

16
17
18

Bylaws 14.1.3.1 and 30.12,” and that its purpose is “[t]o assist in certifying eligibility.” It
further notes that “[t]his NCAA Division I statement/consent form shall be in effect from the

19

date this document is signed and shall remain in effect until a subsequent Division I Student-

20

Athlete Statement/Drug-Testing Consent form is executed.” Form 08-3a has seven parts,

21

including the following: “[a]statement concerning eligibility;” “[a]n affirmation of status as an

22

amateur athlete;” and “[a] statement concerning the promotion of NCAA championships and

23
other NCAA events.”
24
25
26
27
28

398. Under Part IV (“Promotion of NCAA Championships, Events, Activities or
Programs”), student athletes must sign and agree to the following:
You authorize the NCAA [or a third party acting on behalf of the
NCAA (e.g., host institution, conference, local organizing
committee)] to use your name or picture to generally promote
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 118 -

1
2
3

NCAA championships or other NCAA events, activities or
programs.
399. Part IV has been utilized by the NCAA and its co-conspirators to engage in the

4

unlawful licensing of Antitrust Class members’ commercial rights. Its provision stating that it

5

“shall remain in effect until a subsequent Division I Student-Athlete Statement/Drug-Testing

6

Consent form is executed” has the effect of granting a purported release in perpetuity.

7

400. The “authorization” described above in Form 08-3a is entirely coerced and

8
uninformed and is even signed, in some cases, by minors.
9
10

401. Form 08-3a is evidence of the NCAA’s repeated attempts to obfuscate issues about

11

sales of merchandise by referring to the vague and ambiguous concept of “promot[ion] of

12

NCAA championships or other NCAA events, activities or programs of college athletics.” The

13

ambiguous word “support” also appears in the “Institutional, Charitable, Education or Nonprofit

14
15

Promotions Release” mandated by Article 12.5.1.1 of the Bylaws. No reasonable person, upon
reading Form 08-3a, and the “Institutional, Charitable, Education or Nonprofit Promotions

16
17
18

Release” described below, would interpret phrases such as “support educational activities,” or
“generally promote NCAA championships or other NCAA events, activities or programs” to

19

specifically grant a license in perpetuity for student-athletes’ names, images, and likenesses to

20

be used for profit, over many years, in DVDs, on-demand video, video games, photographs for

21

sale, “stock footage” sold to corporate advertisers, “classic games” for re-broadcast on

22

television, jersey and apparel sales, and other items.

23
402. The NCAA’s releases described herein are also notable for their failure to indicate
24
25

that legal rights are being relinquished, and for their failure to counsel student-athletes, who are

26

sometimes minors, that they may wish to seek legal advice in connection with the release of

27

future compensation rights. These forms thus operate as unfair contracts of adhesion. As

28

Professor Elizabeth (“Betsy”) Altmaier of the University of Iowa pointed out in a December
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 119 -

1

2008 e-mail to the NCAA Division I Task Force on Commercial Activity in Intercollegiate

2

Athletics: “Student athletes don’t have much discretion as it is, and they sign these ‘release’

3

forms in a single meeting with literally a stack in front of each of them.”

4
403. The Des Moines Register recently confirmed that schools do in fact require
5
6

student-athletes to sign the NCAA’s mandated consent forms, and reported the following in an

7

article that also described two schools’ receipt of funds relating to the NCAA’s video game

8

license agreement with Defendant EA (as further detailed herein):

9

The athletic departments for Iowa and Iowa State ask for student- athletes'
consent before using their likeness on any promotional material for the
schools.

10
11

"Generally, the way we approach it is we've been very conservative over
the years," Iowa athletic director Gary Barta said. "When we do sell the
likeness of a student-athlete, we have signed permission ... and all the
proceeds from those sales go back directly to benefit student-athletes in
general (through the school's athletic fund)."

12
13
14
15

404. The “consent” and “permission,” described above, however, is entirely coerced

16

and uninformed, as intended by the NCAA and its business partners, its member schools,

17

conferences, and for- profit licensees, and as such constitutes an unconscionable contract and is

18

the product of anticompetitive conduct and agreement.

19
20

405. At a hearing in this matter on December 17, 2009, upon questioning from the
Court, counsel for the NCAA confirmed the NCAA’s interpretation of its release forms as

21
22
23
24

follows:
“[THE COURT]: SO DO YOU VIEW THE THINGS THAT
THEY SIGNED, OR SOME PEOPLE MAY HAVE SIGNED,
AND WHEN THEY GRADUATE FROM COLLEGE, AFTER
THAT, THEY ARE NOT BOUND BY IT ANYMORE?

25
26
27
28

[NCAA Counsel]: IT DEPENDS ON WHICH THING WE ARE
TALKING ABOUT, YOUR HONOR.
[THE COURT]: ANY OF THEM. DO THEY ALL END ON
GRADUATION OR IS THERE SOME THAT YOU CONTEND
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 120 -

1

REALLY DO CONTINUE TO APPLY?

2

[NCAA Counsel]: THE FORM O8-3A AND 09-3A, BY THEIR
TERMS, GIVE THE NCAA A LIMITED RIGHT, AND IT'S
LIMITED TO USE CERTAIN LIKENESSES THAT WERE
CREATED DURING THE TIME PERIOD THAT THE PERSON
WAS A STUDENT ATHLETE FOR THE LIMITED PURPOSE
OF PROMOTING NCAA CHAMPIONSHIPS AND GENERAL
NCAA EVENTS.

3
4
5
6
7

[THE COURT]: ONLY UP UNTIL THE TIME THEY
GRADUATE?

8
[NCAA Counsel]: NO, THAT CONTINUES.
9
10
11

(12/17/10 Hearing Tr., at 44:19 – 45:9)
406. The use of such NCAA standardized release forms is not the first occasion in

12

which the NCAA has sought to prevent input from legal counsel on matters that affect student-

13

athletes’ post-collegiate endeavors. In an Opinion dated February 12, 2009, in the matter of

14
15

Oliver v. National Collegiate Athletic Association (“Oliver”), Judge Tygh M. Tone of the
Common Pleas Court of Erie County, Ohio, examined the NCAA’s Bylaw 12.3.2.1. That

16
17
18

Bylaw states that “A lawyer may not be present during discussions of a contract offer with a
professional organization or have any direct contact (in person, by telephone or by mail) with a

19

professional sports organization on behalf of the individual. A lawyer’s presence during such

20

discussions is considered representation by an agent.” A player utilizing an “agent” in such

21

negotiations is deemed ineligible under the NCAA’s rules, whereas one who does not utilize an

22

agent can retain his eligibility if he chooses to return to school and not become a professional.

23
The court ruled that “Bylaw 12.3.2.1 is arbitrary and capricious and against the public policy of
24
25
26
27
28

the State of Ohio as well as all states within this Union and further limits the player’s ability to
effectively negotiate a contract.”
407. The court in Oliver further stated that the effect of the Bylaw “is akin to a patient
hiring a doctor but the doctor is told by the hospital board and the insurance company that he
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 121 -

1

(the doctor) cannot be present when the patient meets with a surgeon because the conference

2

may improve his patient’s decision making power.” The court additionally stated that “[i]f the

3

Defendant [NCAA] intends to deal with this athlete or any athlete in good faith, the student-

4
athlete should have the opportunity to have the tools present (in this case an attorney) that
5
6

would allow him to make a wise decision without automatically being deemed a professional,

7

especially when such contractual negotiations can be overwhelming, even to those who are

8

skilled in their implementation.”

9
10
11

408. On October 9, 2009, The New York Times reported that the NCAA agreed to settle
the case and pay Mr. Oliver $750,000.
409. Forms developed by NCAA member institutions.

A few NCAA member

12
13
14

conferences have disseminated their own student-athlete release forms that reflect NCAA
policy. James Delany (“Delany”), Commissioner of the Big Ten, has stated that the conference

15

does require student-athletes to sign releases for the use of their names, images, and likenesses.

16

He characterized this as “simply the way it’s been done for many, many years”, that institutions

17

use a “form release,” and that the Big Ten adopted a “uniform release” in 2007. The release is a

18

condition for participating in intercollegiate sports. Delany called it “the practice that

19
institutions participated in” so that each such institution would be “in compliance with NCAA
20
21
22
23

rules and have the necessary permissions to do what it was doing.” Delany acknowledged that
the student-athlete received no consideration for signing the “form release.”
410. Article Bylaw 12.5.1.1. Another bylaw at issue here is Bylaw 12.5.1.1

24

(“Institutional, Charitable, Education or Nonprofit Promotions”), which also results in the

25

creation of an unconscionable release that benefits members. This release also is the product of

26

the anticompetitive agreement described herein among the NCAA and its members. Bylaw

27
12.5.1.1 states in pertinent part the following:
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 122 -

1
2
3
4

A member institution or recognized entity thereof (e.g., fraternity,
sorority or student government organization), a member conference
or a non-institutional charitable, educational or nonprofit agency
may use a student-athlete’s name, picture or appearance to support
its charitable or educational activities or to support activities
considered incidental to the student-athlete’s participation in
intercollegiate athletics, provided the following conditions are met:

5
6
7

(a) The student-athlete receives written approval to participate
from the director of athletics (or his or her designee who may
not be a coaching staff member), subject to the limitations on
participants in such activities as set forth in Bylaw 17;

8
9
10
11
12
13
14
15
16
17
18

(b) The specific activity or project in which the student-athlete
participates does not involve co-sponsorship, advertisement or
promotion by a commercial agency other than through the
reproduction of the sponsoring company’s officially registered
regular trademark or logo on printed materials such as pictures,
posters or calendars. The company’s emblem, name, address,
telephone number and Web site address may be included with
the trademark or logo. Personal names, messages and slogans
(other than an officially registered trademark) are prohibited;
(c) The name or picture of a student-athlete with remaining
eligibility may not appear on an institution’s printed
promotional item (e.g., poster, calendar) that includes a
reproduction of a product with which a commercial entity is
associated if the commercial entity’s officially registered
regular trademark or logo also appears on the item;
(d) The student-athlete does not miss class;

19
20
21
22
23
24
25
26
27
28

(e) All moneys derived from the activity or project go directly
to the member institution, member conference or the
charitable, educational or non-profit agency (emphases
added);
(f) The student-athlete may accept actual and necessary expenses
from the member institution, member conference or the
charitable, educational or nonprofit agency related to
participation in such activity;
(g) The student-athlete’s name, picture or appearance is not used to
promote the commercial ventures of any nonprofit agency;
(h) Any commercial items with names, likenesses or pictures of
multiple student-athletes (other than highlight films or media
guides per Bylaw 12.5.1.7) may be sold only at the member
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 123 -

1

institution at which the student-athletes are enrolled,
institutionally controlled (owned and operated) outlets or
outlets controlled by the charitable or educational organization
(e.g., location of the charitable or educational organization, site
of charitable event during the event). Items that include an
individual student-athlete’s name, picture or likeness (e.g.,
name on jersey, name or likeness on a bobble-head doll), other
than informational items (e.g., media guide, schedule cards,
institutional publications), may not be sold; and

2
3
4
5
6
7
8
9
10
11
12

(i) The student-athlete and an authorized representative of the
charitable, educational or nonprofit agency sign a release
statement ensuring that the student-athlete’s name, image
or appearance is used in a manner consistent with the
requirements of this section. (emphasis added).
411. This Bylaw, with its mandated release pursuant to subsection (i), has been utilized
by the NCAA’s members to engage in the unlawful licensing of Antitrust Class members’
rights, as intended by the NCAA. Just as described herein with respect to the NCAA’s Form

13
14
15
16
17
18
19
20

08-3a, this mandated release constitutes an unconscionable contract that is both procedurally
and substantively unconscionable.
412. Bylaw 12.5.1.7. Similarly, Bylaw 12.5.1.7 (“Promotion by Third Party of
Highlight Film, Videotape or Media Guide”) states the following:
Any party other than the institution or a student-athlete (e.g., a
distribution company) may sell and distribute an institutional
highlight film or videotape or an institutional or conference media
guide that contains the names and pictures of enrolled studentathletes only if:

21
22

(a)

The institution specifically designates any agency that is
authorized to receive orders for the film, videotape or media
guide;

(b)

Sales and distribution activities have the written approval of
the institution’s athletics director;

(c)

The distribution company or a retail store is precluded from
using the name or picture of an enrolled student-athlete in any
poster or other advertisement to promote the sale or
distribution of the film or media guide; and

23
24
25
26
27
28

FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 124 -

1

3

There is no indication in the makeup or wording of the
advertisement that the squad members, individually or
collectively, or the institution endorses the product or services
of the advertiser.”

4

413. The above-provision appears to purport to give third parties (meaning for-profit

2

(d)

5

“distribution companies”) the right to “sell and distribute” highlight films upon approval from

6

the school, without even mandating a release from the student-athlete. However, the release

7

that the NCAA mandates in its Bylaw 12.5.1.1(h), described a few paragraphs above, has been

8
utilized by the NCAA and its members to unlawfully license and use the commercial rights of
9
10
11
12
13
14
15

former student-athletes’ rights in the use of their images.
414. Bylaws 12.5.2.1 and 12.5.2.2. Other NCAA bylaws at issue here are Bylaws
12.5.2.1 and 12.5.2.2. Bylaw 12.5.2.1 states:
After becoming a student-athlete, an individual shall not be eligible for
participation in intercollegiate athletics if the individual:
(a) Accepts any remuneration for or permits the use of his or her name or
picture to advertise, recommend or promote directly the sale or use of a
commercial product or service of any kind; or

16
17
18

(b) Receives remuneration for endorsing a commercial product or service
through the individual’s use of such product or service.
415. Bylaw 12.5.2.2 states:

19
20
21
22
23
24
25
26

If a student-athlete’s name or picture appears on commercial items (e.g.,
T-shirts, sweatshirts, serving trays, playing cards, posters) or is used to
promote a commercial product sold by an individual or agency without the
student-athlete’s knowledge or permission, the student-athlete (or the
institution acting on behalf of the student-athlete) is required to take steps
to stop such an activity in order to retain his or her eligibility for
intercollegiate athletics.
416. Bylaw 12.5.2.1 precludes a student-athlete from accepting remuneration for use of
his name, image, and likeness; Bylaw 12.5.2.2 requires NCAA member institutions to take steps
to stop the use of a student-athlete’s name, image, and likeness for commercial purposes.

27
417. Bylaws compelling obedience to the aforementioned bylaws. The
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 125 -

1

aforementioned bylaws govern the conduct of all NCAA member institutions. Pursuant to

2

Bylaw 2.8.1:

3
4
5
6
7
8

Each institution shall comply with all applicable rules and regulations of
the Association in the conduct of its intercollegiate athletics programs. It
shall monitor its programs to assure compliance and to identify and report
to the Association instances in which compliance has not been achieved.
In any such instance, the institution shall cooperate fully with the
Association and shall take appropriate corrective actions. Members of an
institution’s staff, student-athletes, and other individuals and groups
representing the institution’s athletics interests shall comply with the
applicable Association rules, and the member institution shall be
responsible for such compliance.

9
10
11

418. Other NCAA bylaws require certification of compliance with NCAA legislation or
adherence to NCAA rules (Bylaws 3.2.1.2, 14.01.3, 18.4.2.1, 22.2.1.2).

12

419. NCAA administrative interpretations. As explained below in connection with

13

EA and CLC, the NCAA’s management at times issued “administrative exceptions” to certain

14
15

rules that permitted designated licensees such as EA to engage in just such commercial
exploitation. These types of administrative interpretations are permitted under the NCAA’s

16
17
18

bylaws. In its Bylaw 12.02.3, a “professional athlete” is defined as “one who receives any kind
of payment, directly or indirectly, for athletics participation except as permitted by the

19

governing legislation of the Association.” (Emphasis added). Similarly, “pay” is defined in

20

Bylaw 12.02.2

21

legislation of the Association for participation in athletics.” Id. (emphasis added).The NCAA,

22

as “receipt of funds, awards or benefits not permitted by the governing

through its total control of intercollegiate athletics, and due to a gross disparity in bargaining

23
power, requires student-athletes to sign forms containing non-negotiable terms. Any Class
24
25
26
27
28

member declining to do so is barred by the NCAA and the relevant member institution from all
further intercollegiate athletic competition.
The Markets Allegedly Restrained.
420. The challenged restraints affected and continues to affect two relevant markets: (a)
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 126 -

1

the student-athlete Division I college education market in the United States (the “education

2

market”); and (b) the market for the acquisition of group licensing rights for the use of student-

3

athletes’ names, images, and likenesses in the broadcasts or rebroadcasts of Division I

4
basketball and football games and in videogames featuring Division I basketball and football in
5
6

the United States (the “group licensing market”). The group licensing market is a submarket of

7

the collegiate licensing market in the United States, which is also affected by the alleged

8

restraints.

9
10
11

421. The NCAA and its members control the collegiate licensing and group licensing
markets in the United States, including licensing rights to current and former players’ images
and likenesses (which are utilized in, for example, items such as DVDs of game films, on-

12
13
14
15
16
17
18

demand sales of game films, “stock footage” for corporate advertisers, “classic” games shown
on the cable television network “ESPN Classic” and other networks, photographs, video games,
and in other merchandise).
422. IMG, the owner of the NCAA’s licensing arm, Defendant CLC, recognizes the
college market on its website as follows: “IMG College is a leading collegiate marketing,
licensing and media company that can create and build comprehensive marketing platforms that

19
leverage the marketing potential of the college sports and on-campus market. “ IMG continues
20
21

that “[c]onsumer devotion to college institutions is unrivaled, but the complexity of the space

22

makes it challenging for marketers to tap the full potential. With our expertise, broad

23

relationships and portfolio of properties, IMG College can help brands create platforms to reach

24

millions of passionate, loyal fans.” IMG further states that “[o]ur licensing team, The

25

Collegiate Licensing Company, is the unrivaled leader in collegiate brand licensing, managing

26

the licensing rights for nearly 200 leading institutions that represent more than $3 billion in

27
retail sales and more than 75% share of the college licensing market.” IMG on its website
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 127 -

1

further states: “[h]aving originally contracted with IMG College in 1976, the NCAA has

2

trusted the Company for nearly 30 years to lead the industry in delivering the power of the

3

collegiate market to consumers nationwide.”

4
423. The NCAA and its members have the ability to control price and exclude
5
6

competition. The NCAA and its members control the output and set the price for licensing

7

rights (including group licensing rights) and have the power to exclude from this market any

8

member who is found to violate its rules. The NCAA can and does exclude both current and

9

former student-athletes from this market, as evidenced by the usage of the anticompetitive

10
11

forms described herein. The NCAA and its members have obtained a 100% share in the relevant
markets. With respect to current student-athletes, those players would collectively have a share

12
13
14

of that market absent the vehicles described herein by which they are required to transfer those
rights to the NCAA, its members, and others. Former student-athletes, including the members

15

of the Antitrust Damages Class described herein, also would have a share of the market, absent

16

the anticompetitive practices described herein.

17
18

424. The NCAA (through its members) thus totally controls the licensing rights market
(including the group licensing market), and is able to dictate the supply and the terms upon

19
which licensed products and licenses are bought and sold.
20
21

425. Another indicator of the NCAA and its members’ power includes the fact that all

22

student-athletes are required to abide by the NCAA constitution, bylaws, regulations, rules,

23

interpretations, and policies, both written and unwritten and to sign the forms described herein,

24

pursuant to which the NCAA has unlawfully licensed the rights of former student-athletes are

25

forced to release all future rights to the commercial use of their images. Student-athletes must

26

sign these forms, even if he or she does not receive a scholarship. The NCAA has the power to

27
impose and enforce the releases, and to exclude non-signing athletes from participation in all
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 128 -

1

future intercollegiate competition, as well as penalize schools whose athletes violate the terms

2

of the forms and related rules, regardless of whether the athlete receives any scholarship funds.

3

426. The NCAA, through its member schools and conferences, imposes a wide variety

4
of conditions on student-athletes. For example, they may not receive compensation beyond
5
6

educational expenses approved by the NCAA; they may not retain an agent for exploitation of

7

their future professional career; they must meet minimum requirements for educational

8

progress; and they are strictly limited in receiving compensation for non-athletic services that

9

might be understood to reflect on their athletic ability. If student-athletes had the opportunity to

10
11

receive a college education and compete at an elite level of intercollegiate competition without
these restrictions, many student-athletes would choose to do so. The fact that they agree to

12
13
14
15
16
17
18

these conditions demonstrates the market power of the NCAA member schools, i.e., the lack of
any reasonable substitute for those who wish to receive a college education and compete in elite
intercollegiate athletic competition.
427. The demand for student-athletes is such that, absent the NCAA constitution,
bylaws, regulations, rules, interpretations, and policies, both written and unwritten unlawful,
discussed above, Form 08-3a (and its predecessors and successors), the “Institutional,

19
Charitable, Educational, or Nonprofit Promotions Release Statement,” and any other similar
20
21

device that the NCAA has utilized to attempt to eliminate compensation owed to current and

22

former student-athletes, the colleges and universities participating in the relevant markets would

23

have competed against each other by offering higher amounts of licensing revenues to student

24

athletes. For example, schools, in order to compete with each other, could offer players a

25

portion of the revenue that the schools in turn receive via the NCAA and other sources for

26

commercial exploitation of those players’ images. But under current anticompetitive

27
conditions, compensation is “capped” at zero by artificial rules imposed by the NCAA that
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 129 -

1
2
3

result in lower compensation than would otherwise prevail in a more competitive market.
428. Thus, for the members of the proposed Antitrust Damages Class, increased
competition on the terms of post-career revenue distribution for former athletes would result in

4
additional revenue for all members of the proposed class.
5
6

429. All NCAA members have agreed to utilize and abide by the NCAA’s constitution,

7

bylaws, regulations, rules, interpretations, and policies, both written and unwritten, including

8

the provisions detailed herein that mandate the use of Form 08-3a (and its predecessors and

9

successors), Bylaw 12.5.2.1 and 12.5.2.2, and the “Institutional, Charitable, Educational, or

10
11

Nonprofit Promotions Release Statement” discussed herein, which have been used by the
NCAA and its member institutions and conferences to fix the prices at which former student-

12
13
14
15

athletes are paid for their commercial licensing rights and to foreclose student-athletes from
exercising any such rights.
430. The NCAA and its members are able to engage in these anticompetitive

16

agreements and arrangements, as there are no acceptable substitutes for major college football

17

or major college basketball.

18

431. The agreement among the NCAA and its members to jointly appropriate student-

19
athletes’ rights after the expiration of the students’ eligibility as an amateur athlete is not
20
21

necessary to achieve the NCAA’s stated goal of clearly demarcating between college and

22

professional sports, or to serve any pro-educational purpose, or any other legitimate, pro-

23

competitive purpose in the marketing of college sports. In January of 2008, David Berst, Vice-

24

President for the NCAA’s Division I, conducted a study of amateurism in the NCAA and

25

concluded it was “a definition that was not steeped in any sacred absolute principle that had to

26

be preserved. It continues to be a balancing of vocation vs. avocation influences and can be

27
modified as views change while preserving the line between us and the pros.”
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 130 -

1
2
3

432. Moreover, reasonable and less restrictive alternatives are available than the
NCAA’s “zero compensation” policy for current and former student-athletes’ licensing rights.
For example, all of the major professional sports, including basketball and football, have

4
identified and utilized group-licensing methods to share revenues among teams and players.
5
6

Additionally, other reasonable and less restrictive alternatives could include the establishment

7

of funds for health insurance, additional educational or vocational training, and/or pension plans

8

to benefit former student athletes.

9
10
11

D.

Defendants Admit The Alleged Restraints.

433. The NCAA’s executives and member conferences and schools have admitted the
alleged restraints.

12
13
14

434. The Bowl Championship Series stated in a letter arising from another discovery
dispute in this case, “[w]hether a payment is made to a student-athlete during his years in

15

college or a promise is made to pay the student-athlete after he leaves school is of no moment.

16

Deferred compensation remains just that - compensation - and is forbidden by the NCAA’s

17

amateurism rules.”

18

435. This sentiment was echoed by current NCAA President Mark Emmert (“Emmert”)

19
who, when asked if an NCAA member could share revenue with former student-athletes if it
20
21

wished to do so, he responded: “They are not free to do so if that was a--an agreement that was

22

struck before or during the time that the individual was a student-athlete.” Emmert further

23

stated that “we don’t share revenue with student-athletes after they have left their NCAA

24

participation . . . because . . . we have made policy decisions to focus revenue streams on the --

25

the opportunities that are provided during their time as student-athletes, while they are student-

26

athletes” and that “it is a general policy that’s decided every time we make budgetary

27
allocations.”
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 131 -

1

436. Likewise, Jonathan LeCrone, Commissioner of the Horizon League, testified that

2

mandated “payments to any individual student-athletes or group of student-athletes just runs

3

contrary to the fundamental purpose of our business.”

4
437. Kevin Lennon, the NCAA’s Vice-President of Membership & Academic Affairs,
5
6

has stated: “[t]hese are the rules that also prevent Division I member institutions from paying

7

student-athletes for agreeing to attend the school as a potential quarterback, or winning the

8

starting point guard position on a men’s basketball team, or leading the football team in

9

touchdown receptions, or making any other payment to a student based on his status or

10
11

performance as an athlete.”
438. The SEC has taken the position that a 1984 Supreme Court opinion “allows the

12
13
14
15
16
17
18

NCAA to condition participation in college sports on maintenance of amateur status. Paying
athletes for appearing in broadcasts—either while they are enrolled or promising to do so after
they leave college—would fly in the face of the precedent set by Board of Regents.”
E.

The Recognition Of The Impropriety Of The Alleged Restraints.

439. The NCAA’s own executives and officials of its member institutions have
recognized the impropriety of the alleged restraints.

19
440. Thus, for example, an October 2010 e-mail from NCAA Chief Policy Advisor
20
21
22
23
24
25
26
27
28

Wallace Renfro to Emmert stated:
There is a general sense that intercollegiate athletics is as thoroughly
commercialized as professional sports. Some believe that athletics
departments study how to emulate the pros on marketing their sports
(primarily football and basketball), and sometimes lead the way. And the
public would generally agreed [sic] that has all taken place at the expense
of the student-athlete whose participation is exploited to make another
buck for a bigger stadium, the coaches, the administrators or for other
teams who can’t pay their own way. It is a fairness issue, and along with
the notion that athletes are students is the great hypocrisy of intercollegiate
athletics.
441. Similarly, Walter Byers (“Byers”), Executive Director of the NCAA from 1951 to
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 132 -

1

1987, laid out some of the background on amateurism and the NCAA in his 1995 book

2

Unsportsmanlike Conduct. He noted that suggestions for changing the compensation rules for

3

student-athletes (a term he disfavored) were proposed at the 89th NCAA Conference in January

4
of 1995 and were met with a “defensive circling of the wagons”; “the NCAA leadership
5
6

unanimously agreed that it would be heresy to permit athletes to have equal access to the

7

marketplace, say, for example, like coaches.” He called the NCAA’s position “an economic

8

camouflage for monopoly practice.” As Byers went on to note, “[p]rotecting young people from

9

commercial evils is a transparent excuse for monopoly operations that benefit others.”

10
11

442. The NCAA considered over a number of years legislation to change Bylaw
12.5.1.1. One of the goals of such legislation was to “replace[] outdated aspects of the NCAA’s

12
13
14

current legislation in this area with more modern legislation that are [sic] clear, easier to apply
and accommodate legal concerns (e.g. UBIT, antitrust, SA rights).” The legislation was not

15

enacted, but during the consideration process, the question was being asked as early as 2004:

16

“[d]oes this open the door to future claims from SAs contributing the most to the funds? Are we

17

creating the NCAAPA?” In 2006, an internal NCAA document discussed “potential legal

18

challenges” and the “potential need to provide additional benefits for the SAs given more

19
permissive use of their likenesses?” Other internal documents mentioned “legal challenges” or
20
21
22

igniting the “SA likeness debate.”
443. The filing of the O’Bannon suit in July of 2009 put to the test whether the

23

NCAA’s policy of zero compensation to student-athletes for use of their name, image, and

24

likeness should continue. Dan Beebe (“Beebe”), former Commissioner of the Big 12, said in a

25

July 27, 2009 e-mail that with respect to the suit, the Big 12’s board was “uneasy with the

26

exploitation of player’s names and likenesses for commercial purposes.” Bill Powers of UT

27
wrote an e-mail to Beebe, saying “it looks like the NCAA makes money from the licenses. Why
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 133 -

1

should we be defendants in this, rather than plaintiffs representing our students?” Harvey

2

Perlman, Chancellor of the University of Nebraska-Lincoln stated, “[t]his whole area of name

3

and likeness and the NCAA is a disaster leading to a catastrophe as far as I can tell.” Despite

4
these concerns, the NCAA’s zero compensation policy continues in force and continues to be
5
6
7

enforced by its member institutions.
444. Similarly, Cory Moss, Senior Vice-President of CLC, wrote in 2009, soon after the

8

O’Bannon lawsuit was filed, that “[s]hould we really begin work on a formal College Student

9

Athlete Players Association (current and former) to be ready depending on the results of the EA

10
11

lawsuits?” The proposed CSAPA would have a Board of Directors and would do “whatever is
necessary to ensure that licensing and marketing rights of former collegiate student-athletes are

12
13
14

protected and revenue opportunities are pursued.”
445. In June of 2013, James Duderstadt, Former President of University of Michigan,

15

stated: “[i]n a sense, the NCAA's objective is to preserve the brand so that it provides revenue

16

primarily for a small number of people who get very, very rich on the exploitation of young

17

students who really lose opportunities for their futures … And that's what's corrupt about it. The

18

regulations are designed to protect the brand, to protect the playing level and keep it exciting,

19
not to protect the student athletes.”
20
21
22

F.

EA’s And CLC’s Participation In The Alleged Restraints.

446. During the Class period, CLC and EA entered into a series of licensing agreements

23

whereby the latter was allowed to produce a series of NCAA Division I and FBS-themed

24

videogames. EA paid no current student-athlete for the use of his name, image, and likeness in

25

those games. Apart from certain very limited short-term promotions, EA also paid no former

26

student-athlete for the use of his name, image, and likeness in those games. In those

27
agreements, EA agreed to be bound by the NCAA’s rules and subjected its games to the
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 134 -

1
2
3

approval of the NCAA and/or certain of its member institutions.
447. However, EA and CLC did not merely follow the NCAA’s rules. They actively
lobbied for, and obtained, administrative interpretations of those rules that permitted greater

4
uncompensated exploitation of student-athletes’ names, images, and likenesses. Where their
5
6

formal efforts were unsuccessful, EA and CLC obtained agreement from the NCAA to permit

7

greater uncompensated exploitation of student-athletes’ names, images, and likenesses

8

notwithstanding the rules.

9
10
11

448. CLC gave multiple presentations to NCAA committees, imploring them to adopt a
revision to the NCAA bylaws that was designed, in the NCAA’s own words, to expand the
scope of student athlete image use and to “accommodate legal concerns (e.g., unrelated business

12
13
14

income tax, antitrust, student-athlete rights.).” When EA complained that the proposed
amendment to NCAA Bylaw 12.5.1 would not allow the unfettered use of student athletes’

15

names, images, and likenesses without compensation, CLC’s President, Pat Battle, told Greg

16

Shaheen (“Shaheen”), former NCAA Senior Vice-President, Basketball and Business Strategies

17

that he would “tell Joel [Linzner, General Counsel of EA] just to hold off and that we have

18

things under control working behind the scenes.”

19
449. EA, CLC and the NCAA worked together to affirmatively mislead the public and
20
21

student athletes about the lengths EA went to model the avatars after real players. Defendants

22

circulated an FAQ sheet after the O’Bannon suit was filed to “align our messaging.” In internal

23

talking points for the NCAA’09 Football videogame that were jointly developed and approved

24

by all Defendants, it was claimed that “[w]hile NCAA policy also permits the accurate

25

recreation of skin tones, EA does not model faces or body types after student athletes.”

26

450. Defendants’ own documents and testimony show, however, that EA, CLC and the

27
NCAA colluded to use former and current student-athletes’ names, images, and likenesses in
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 135 -

1

their videogames without compensation. All of EA’s videogame avatars were modeled in the

2

same way and were tied to the characteristics of actual student-athletes, and show that EA

3

wanted to use the names, images, and likenesses of all student-athletes incorporated in its

4
videogames. The NCAA knew that student-athletes’ names, images, and likenesses were used,
5
6
7
8
9
10
11

but approved the practice even though its attempt to get “expanded waivers” via bylaw changes
failed.
451. EA developed its NCAA-themed basketball and football videogames by modeling
every single avatar in the games on a real student-athlete. EA tested how gamers rated the
avatars: “how closely players look and feel [to] their real-life counterparts.” EA noted “legal
restrictions” internally but emphasized that “[m]atching hair and body type” were permissible—

12
13
14

and paramount. It painstakingly modeled each avatar to match a current or former studentathlete. EA’s internal spreadsheets show that each avatar was matched to dozens of the real

15

student-athlete’s identifying characteristics. For example, for the NCAA football videogame,

16

EA matched: (1) the name of the real student-athlete; (2) his real-life jersey number; (3) his

17

position played; (4) his hometown; (5) his year of eligibility; (6) his athletic abilities (on at least

18

22 dimensions, including speed, strength, agility, etc.); (7) his physical characteristics (on at

19
least 26 dimensions, including, weight, height, skin color, face geometry, hair style, muscle
20
21

shape, etc.); and (8) how he dressed for games in real life (on at least 28 dimensions, including

22

shoes, how they taped, braces worn, undershirts, facemask and helmet styles, etc.). EA’s

23

employees admitted that the avatars are modeled on real life student-athletes.

24
25
26

452. Former NCAA President Brand and Shaheen made it clear to EA and CLC that
they were “on board” with EA’s desire to use student-athletes s’ names, images, and likenesses.
Throughout the Class Period, NCAA administrators noted “real concern” that use of student-

27
athletes’ names, images, and likenesses in videogames “adds to the argument that student28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 136 -

1

athletes should be unionized and receive a cut of the profits, etc.” Numerous NCAA

2

employees--including those that were technically in charge of approving EA’s videogames--

3

knew that the videogames were depicting real SAs, but were overruled by Brand and Shaheen.

4
For example, Peter Davis, the former NCAA Director of Corporate Alliances, admitted that
5
6

there are “likenesses of student-athletes” in the videogame. At least five other high-level NCAA

7

employees expressed concern about the “obvious” use of likenesses. Despite these numerous

8

internal misgivings, Brand and Shaheen were undeterred. The former suggested that “[w]e can

9

take care of the legal issues through an expanded waiver.” Shaheen also worked “behind the

10
11

scenes” to obtain a series of increasingly liberal “interpretations” of existing bylaws to give EA
what it wanted.

12
13
14

453. The NCAA looked the other way on the increasingly obvious misuse of names,
images, and likenesses. First, it took the position that the images were not “likenesses” unless

15

they were developed using “mapping technology.” Second, the NCAA reversed its

16

interpretation from one month before, that “the download of actual rosters [] violates student

17

athletes rights.” EA considered the NCAA’s permission to create an online “locker room” in

18

which name rosters could be exchanged freely to be the equivalent of shipping the game with

19
the names on the jerseys: “[i]ts huge, its just like we shipped the game with them.” EA
20
21
22
23

bragged to the press that “100 percent count on having rosters with names available for all
schools shortly after release.”
454. EA was confident that name rosters would be available shortly after release

24

because it supplied the name rosters to gaming sites. It did so, even though acknowledging

25

internally that if EA got caught, it would “expose the company to risk of lawsuit.”

26

FACTUAL ALLEGATIONS

27
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 137 -

1
2
3

A.

The NCAA’s 2009 “State of the Association” Speech Regarding Commercial
Exploitation of Student-Athletes.

455. As noted above in the Introduction, Wallace Renfro, the NCAA’s vice president

4

and senior advisor to President Myles Brand gave its 2009 “State of the Association” speech.

5

Mr. Renfro’s remarks are notable for the contrast with the NCAA’s actual conduct in exploiting

6

former student-athletes, and his acknowledgment that “[g]eneration of much needed revenue

7

does not justify the exploitation of student-athletes.” Certainly the same holds true with respect

8
to former student-athletes. Specifically, Mr. Renfro’s remarks included the following:
9
10

Any adequate policy of commercial activity must ensure that
student-athletes are not commercially exploited.

11

Call this the condition of non-exploitation.

12

This condition is further delineated in the paper you received as
you arrived today. When we say “student-athlete exploitation in
commercial activity,” we should have a specific definition in mind.

13
14
15
16

Since student-athletes are amateurs, not paid professionals, they
cannot accept payment for endorsing or advertising any
commercial product or service.

17

It also means they should not be put in a position in which the
natural interpretation by a reasonable person is that they are
endorsing or advertising a commercial product or service.

18

But most cases of exploitation are subtle and indirect.

19

Instead of obvious product endorsement, the marketing can include
game pictures, films, audio or video of student-athletes that make it
appear to a reasonable person that a student-athlete is endorsing a
specific commercial product.

20
21
22
23
24
25
26
27
28

The student-athlete may well have no knowledge or awareness that
his or her reputation, image or name is being used for these
commercial purposes.
But exploitation may be the result, nonetheless.
Generation of much needed revenue does not justify the
exploitation of student-athletes.
We can – and we should – debate the nature of proper commercial
conduct. However, one principle is not subject to debate:
commercial exploitation of student-athletes is not permissible.
Period.
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 138 -

1
2
3

B.

The NCAA’s Web of Licensing Agreements With For-Profit Entities.

456. In the early 1980s, the total retail market for products identified with college

4

athletics was estimated to be under $100 million per year. The typical outlets for such sales

5

were college book stores or other campus locations. In the mid-1990s, the market was

6

estimated to have grown to $2.5 billion per year, with the predominant sales locations being

7

retail and chain stores. IMG now estimates that the market is a $4.0 billion per year. The

8

growth of the market has been explosive, and advances in technology and product delivery

9
outlets, namely, the internet, cable television delivery systems, and video game technology
10
11
12

advances, have accelerated the growth.
457. A review of even the limited public information available regarding the NCAA’s

13

financial operations details the explosive growth in revenue that it has received in connection

14

with sales of NCAA-related merchandise. In its 2002-03 Revenue Report, the NCAA listed

15
16

receipt of “royalties” of $3.8 million, and $6.2 million in “sales and services” (along with $370
million in television revenue).

17
18
19

458. In its 2007-08 report, the NCAA listed $552 million in total revenue for “television
and marketing rights fees” of which $529 million was elsewhere attributed to revenues from its

20

television contract with CBS, leaving an apparent $23 million difference attributable to

21

royalties. Additionally, the NCAA reported approximately $14.5 million in revenue for “sales

22

and services.” Thus, in just a few years, it appears that the combination of royalties and sales

23

and services went from $10 million for the 2002-03 fiscal year ($3.8 million plus $6.2 million),

24
to $37.5 million ($23 million plus $14.5 million) in for the 2007-08 fiscal year. That number
25
26

only represents the NCAA’s portion obtained pursuant to currently unknown royalty rates, and

27

does not represent the total value of the associated sales via the NCAA’s licensees, or sales

28

made by member conferences and schools of goods.
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 139 -

1
2
3

459.

Within recent years, the NCAA has entered into some of the licensing

partnerships detailed herein that unlawfully utilize the images of Antitrust Class members. The
related available content featuring likeness of former student-athletes, such as DVDs, photos,

4
and video games, continues to grow in both availability and popularity, and growth will
5
6

continue to explode as merchandise continues to be made available in new delivery formats as

7

developing technology and ingenuity permits, as exemplified by the substantial library of “on

8

demand” internet content now available for sale for NCAA games going back several decades.

9

460. Through the NCAA’s web of licensing agreements with for-profit companies, the

10
11

NCAA sells its rights, its members’ rights, and Damages Class members’ rights that unlawfully
exercises via the anticompetitive and unconscionable conduct described herein. On its website,

12
13
14

the NCAA directs interested parties to contact Defendant CLC for licensing information.
461. In the “Frequently Asked Questions” portion of its website, the NCAA provides

15

various information with respect to licensing. Most notably, there is no information whatsoever

16

regarding the rights of players – current or former – with regard to licensed merchandise. This

17

total absence of information regarding the rights of players in the commercial licensing and

18

usage of their images also is observed on the websites of the NCAA’s licensing arm, Defendant

19
CLC. The NCAA states the following regarding CLC:
20
21
22
23
24
25
26
27
28

The Collegiate Licensing Company is the licensing representative
for the NCAA. CLC is responsible for administering the licensing
program, including processing applications, collecting royalties,
enforcing trademarks and pursuing new market opportunities for
the NCAA.
i)

CLC.

462. On its website, under “Terms of Use,” Defendant CLC states the following:
The Collegiate Licensing Company (“CLC”) is the trademark
licensing representative for nearly 200 colleges, universities, bowl
games, athletic conferences, the Heisman Trophy and the NCAA
(“CLC Institutions”). Based in Atlanta, CLC is a full-service
licensing company, which employs a staff of more than 80
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 140 -

1

licensing professionals with the capability to establish and manage
every aspect of a collegiate licensing program.

2
3
4

463. CLC further states that it “is a division of global sports and entertainment company
IMG,” that it was founded in 1981, and that it is “the oldest and largest collegiate licensing

5

agency in the U.S.” On its website, CLC provides some information regarding its history and

6

licensing operations. The content is notable for several reasons, as it details information about

7

licensing agreements for coaches, universities, and the NCAA. There is not a single word

8
9
10
11
12
13
14
15
16
17
18
19
20
21

devoted to the rights of former players. Specifically, CLC states the following:
Since its early days in 1981, CLC's mission has been to serve as
the guiding force in collegiate trademark licensing and one of the
top sports licensing firms in the country. As such, our company
and staff have dedicated ourselves to being a center of excellence
in providing licensing services of the highest quality to institutions,
licensees, retailers, and consumers.
The consolidated approach to licensing offered by CLC provides
every institution with a greater voice in the market, increased
exposure, the broadest range of available licensing services, and
reduced administration expenses, while still allowing for
independent decision-making by each and every client. This
approach, combined with our committed staff and industry-leading
services has helped to guide and shape the $4.0 billion annual
market for collegiate licensed merchandise. CLC’s long-standing
relationships with retailers and licensees have also been essential
to the growth of the industry and the success of each client’s
individual licensing program.
Today, the CLC Consortium represents the consolidated retail
power of the many colleges, universities, athletic conferences,
bowl games, and other collegiate institutions that comprise the
CLC Consortium. The collective efforts that have contributed to
the growth of the collegiate licensing industry will remain an
important cornerstone of the industry in the future.

22
ii) IMG.
23
464. As noted above, Defendant CLC identifies itself as a division of IMG. One of
24
25
26
27
28

IMG’s divisions and/or brands appears to be known as “IMG College.” IMG has stated the
following with respect to IMG College:
Named by the Sports Business Journal as America's Top Sports
Marketing Agency, IMG College (formerly HOST) provides
extensive, yet varied sports marketing services for several
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 141 -

1

4

NCAA® Division I universities and conferences. IMG College
represents Arizona, Cincinnati, Connecticut, Florida, Furman,
Gonzaga, Kansas, Kentucky, Michigan, Nebraska, Ohio State,
Oklahoma State, Oregon, Rice, South Alabama, Tennessee, Texas,
Western Kentucky, Wofford and several conferences, including the
Southeastern Conference, the Ohio Valley Conference, the
Southern Conference and the West Coast Conference.

5

...

6

The rights to these schools, conferences, and properties include
some, or all, of the following: radio and television programs,
publishing, printing, creative design, marketing, licensing, Internet,
national advertising and signage sales, and numerous lifestyle and
event marketing platforms.

2
3

7
8
9

Additionally, IMG College holds the distinct position of having the longest
consecutive relationship with the National Collegiate Athletic
Association® (NCAA), over and above any other contractor.
Having originally contracted with IMG College in 1976, the
NCAA has trusted the Company for nearly 30 years to lead the
industry in delivering the power of the collegiate market to
consumers nationwide.

10
11
12
13

Through an agreement with CBS Sports, IMG College oversees
select NCAA rights including licensing, printing & publishing and
special event promotions, like the NCAA Hoop City® interactive
events.

14
15
16

465. IMG also has stated the following regarding IMG College:
Host Communications, Inc. (HOST) and the Collegiate Licensing
Company (CLC) were joined to form IMG College, the premier
college marketing, licensing and media company. IMG College
creates opportunities for corporations to connect with specific
audiences within the collegiate market . . .

17
18
19

Through its unique relationships with many of the elite universities
and conferences, IMG College ultimately offers platforms that
provide companies immediate access to more than 110 million
loyal, passionate collegiate fans and alumni and more than 15
million students enrolled in NCAA member institutions.

20
21
22
23

466.

IMG also has stated that it “helps marketers leverage the passion and loyalty of

24

America’s strongest collegiate brands.” It further has stated that “IMG College is a leading

25

collegiate marketing, licensing and media company that can create and build comprehensive

26

marketing platforms that leverage the marketing potential of the college sports and on-campus

27

market.” IMG also has stated that “[c]onsumer devotion to college institutions is unrivaled, but

28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 142 -

1

the complexity of the space makes it challenging for marketers to tap the full potential. With

2

our expertise, broad relationships and portfolio of properties, IMG College can help brands

3

create platforms to reach millions of passionate, loyal fans.”

4
467. IMG has also stated that “[o]ur licensing team, The Collegiate Licensing
5
6

Company, is the unrivaled leader in collegiate brand licensing, managing the licensing rights for

7

nearly 200 leading institutions that represent more than $3 billion in retail sales and more than

8

75% share of the college licensing market.”

9
10

C. Description of Revenue Streams Relating to the Commercial Exploitation of

Images of Former Student-Athletes.

11

468. There are a vast number of revenue streams generated in connection with

12

collegiate sports. Many of those revenue streams are generated at least in part from the

13

continuing commercial exploitation of the images, likenesses and/or names of former student-

14

athletes. The following descriptions detail some of the current revenue streams of which

15

Antitrust Plaintiffs are aware.

16
a. Media Rights for Televising Games.
17
18

469. The NCAA, as well as individual conferences and schools, negotiates various

19

deals with television networks to televise regular season and post-season games. In 1999, the

20

NCAA and the CBS television network negotiated a deal that became effective in 2003, and

21

that provided CBS with an 11-year right to televise the NCAA men’s postseason basketball

22

tournament in exchange for a staggering $6 billion.

23

470. In 2008, the ESPN network and the NCAA’s Southeastern Conference negotiated

24
25
26

a deal by which ESPN will pay the Southeastern Conference $2.25 billion over 15 years to have
the rights to televise all conference games that are not televised by the CBS network under

27

another deal. In 2008, the Big Ten Network, operated by media giant News Corp., reached a

28

deal with the Big Ten Conference to televise conference games, and was estimated to
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 143 -

1

potentially require a $2.8 billion payment to the Big Ten Conference over the course of 25

2

years.

3

471. Many telecasts of games, in particular the NCAA tournament games, frequently

4
show video clips of former student-athletes competing in prior tournament games as means of
5
6

further enhancing viewers’ experience of the current games.
472. No valid and lawful releases with informed consent from Antitrust Class members

7
8

have been obtained for the use of those clips, and any purported transfer of former student-

9

athletes’ rights relating to this usage is the product of the anticompetitive agreement described

10
11

herein.
b. DVD and On-Demand Sales and Rentals.

12
473. The NCAA, in March of 2007, launched its “NCAA On Demand” website, which
13
14

offers for sale telecasts of games from numerous decades in the DVD and “on-demand”

15

delivery formats. This is not to be confused with a separate on-demand service by which live

16

games are shown. In the “About Us” section of the website, the NCAA states the following:

17
18
19
20
21
22
23
24
25
26
27
28

NCAA On Demand is a partnership between the NCAA and
Thought Equity Motion, centered on providing fans of college
athletics access to memorable moments and games of past
collegiate events. NCAA On Demand will initially focus on NCAA
championships, but will expand into the premier site for college
athletics video with content from games and events from regular
season and conference championships as well as unique content that
has never been seen before.
Through a number of relationships NCAA On Demand will provide
fans with video imagery in a variety of formats from DVDs to
digital video. Fans will be able to relive past games through video
streaming or purchase the game for their own collection.
Additionally, NCAA On Demand will develop key elements that
will allow fans to truly integrate with the collegiate athletics
experience.
474. TEM identifies itself as the “world’s largest supplier of online motion content,
licensing and professional representation services to the agency, entertainment and corporate
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 144 -

1

production industries.” TEM has entered into a partnership with the NCAA to offer for sale

2

DVDs and internet content utilizing images of Class Members. Additionally, TEM offers for

3

sale more than 12,000 video clips of portions of NCAA games for uses including corporate

4
advertisements, corporate in-house presentations, films, and television programs, as well as
5
6
7
8
9
10
11

additional highlight films, complete games and interviews that utilize the images of Class
Members. On its website, Thought EquityTEM states the following:
We’re pleased to announce the launch of NCAA On Demand. For
the first time, college sports fans and athletes can access the entire
NCAA Championship Collection, which contains nearly 5,000
championship games. While many fans have experienced college
sports through football bowl games or March Madness, NCAA On
Demand now makes championships from all 23 NCAA sports
available.

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

Select content is available through free Internet streaming, so you
can check out classic college highlights of Michael Jordan, Magic
Johnson, Larry Bird and many others.
475. In an article dated March 7, 2007, the NCAA and TEM issued a press release that
stated in part the following:
“The NCAA is excited that supporters of collegiate athletics will
have unprecedented access to the NCAA Championship Collection.
We are pleased to open our archives to fans, former studentathletes, and member institutions that have added so much to
American sports and society," said Greg Shaheen, NCAA's senior
vice president for Basketball and Business Strategies.
"NCAA On Demand has always been a big part of our vision for
making the NCAA video archive more accessible and valuable,"
said Kevin Schaff, CEO of Thought Equity Motion. "Since we took
over the management of the archive in 2005, we have had
thousands of requests for classic games from fans and former
student-athletes from all over the country. Through our partnership
with the NCAA, we are proud to be able to make these moments
accessible to the people who created them."
476. The “accessibility” to “former student-athletes” comes at a price, and there is
substantial irony in that such individuals must pay $24.99 to purchase footage of a game in

28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 145 -

1

which they played, and for which they never lawfully licensed, conveyed, or transferred their

2

rights for compensation for use of those images, and for which are not provided any

3

compensation in connection with any sales. Meanwhile, the NCAA and TEM receive a

4
continuing revenue stream.
5
6

477. At least the following numbers of games are available in various Men’s sports:

7

Basketball – 2,468; Football – 464; and Baseball – 525. Purchases of individual games

8

typically cost $24.99. Various box sets are also available, and the purchase price typically

9

exceeds $100 for those sets.

10
11

478. Defendant CLC, the NCAA’s official licensing company, states on its website, as a
part of its “Terms of Use” Agreement, the following:

12
13
14
15
16
17
18
19

The Collegiate Exchange (“TCE”) - TCE is CLC’s online businessto-business trading exchange. TCE is provided by CLC in
conjunction with iCongo.com. Through this site, retailers can view
catalogs from participating licensees and place orders for collegiate
merchandise. Only collegiate retail stores and licensees can
participate in this program. There are costs for licensees to
participate in TCE. Please visit
http://www.thecollegiateexchange.com to view terms and
conditions specific to TCE.
The Collegiate Exchange’s website in turn indicates that retailers can purchase hundreds of
licensed products for sale, including “Highlight Tapes/DVDs.”

20
479. The NCAA also recently entered into yet another venture with a for-profit entity to
21
22

sell DVDs. On January 20, 2009, the NCAA announced the release of its DVD titled “NCAA

23

March Madness: The Greatest Moments of the NCAA Tournament,” with a suggested retail

24

price of $19.95. The NCAA’s business partners in this venture are a for-profit entity called

25

Genius Products LLC, as well as Thought Equity. In a press release, the three entities described

26
27

the DVD as “the first DVD officially produced and branded by the NCAA to feature the
greatest moments from more than 70 years of tournament action.” In the partners’ press release,

28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 146 -

1

Thought Equity is described as “the world leader in providing access to high quality film, video

2

and music content. The company’s forward-thinking approach to digital video has produced an

3

array of products and services to meet the exploding demand of new media.”

4
480. NCAA DVDs also are available through myriad other outlets. For example,
5
6

hundreds of NCAA DVDs are available from CBS Sports’ “Online DVD Store.” On

7

Amazon.com, more than 1,600 NCAA sports DVDs are for sale. NCAA DVDs also are for sale

8

via myriad other outlets, such as, for example, walmart.com, the NBC network’s sports website,

9

FantasyPlayers.com’s website, Barnes & Noble’s website, and the Big Ten Network’s website.

10
11

481. Additionally, hundreds of NCAA games and highlight films are available for rental
from Blockbuster Video and Netflix, including via their websites.

12
13
14

482. No valid and lawful releases with informed consent from Antitrust Class members
have been obtained for the use of their images, likenesses and/or names in DVDs and on-

15

demand delivery formats, and any purported transfer of former student-athletes’ rights relating

16

to this usage is the product of the anticompetitive agreement described herein.

17
18

483. Only through the discovery process will Plaintiffs be able to ascertain the true
scope of sales, in terms of outlets, license agreements, and sales volume of DVD products

19
containing the images of class members.
20
21
22

c. The NCAA’s New “Vault” Website Operated in Connection with TEM.

484.

On March 3, 2010, The New York Times reported on the debut of a new

23

NCAA commercial venture with Thought Equity called “The Vault” in an article titled

24

“N.C.A.A. Tournament Goes Online, Clip by Clip” as follows:

25
26
27
28

With its tournament approaching, the N.C.A.A. has found a way to
exploit a portion of its men’s basketball tournament archive by
ceding a significant amount of clip selection to fans. Through a
deal with the N.C.A.A., Thought Equity Motion has digitally diced
every tournament game this decade from the Round of 16 forward
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 147 -

1
2
3
4
5
6
7
8

into all of its notable plays, and assigned a Web address to each of
them. It lets fans watch any of the games, or thin slices of them, and
link to social networking sites like Facebook or Twitter or to their
blogs.
The NCAA Vault, at NCAA.com/vault, is making its formal debut
Wednesday after finishing its beta phase.

“Fans want basketball content, and we wanted to find a way to get
people to connect to it,” said Kevin Schaff, chief executive of
Thought Equity Motion, which digitizes and stores video archives.
. ..

10

Schaff added, “People want to consume the moment and discuss it.”
He said that the site’s goal was to extend
the tournament’s mania beyond its natural period.

11

...

12

The site, which is advertiser-supported, breaks games into small bits
and divides them into packaged sections like dunks, great shots and
great blocks. But it also lets fans choose clips from each game’s
play-by-play log.

9

13
14
15
16
17

One Tweeter called it “the answer to all hoops junkies problems,”
while another said he was “going to lose hours of time watching
games.”
...

18
19
20
21
22
23
24

Gregg Winik, the chief executive of CineSport, an online highlights
provider for local media Web sites, and a former executive at NBA
Entertainment, said that the mixture of video and social network
had created a “big and bold step” in the evolution of sports video
archives.
“The old idea in the industry was to protect the archive and drive
fans to the broadcasts,” he said. “Now, people are saying, ‘Internet
video is a real business.’ ”
485. In a trade publication published by the Sports Video Group (“SVG”), an

25
organization formed “to bring the entire sports industry closer together so that it can more
26
27
28

effectively share information about best practices and new technologies that impact the
industry,” SVG, in connection with an interview with Thought Equity’s Dan Weiner, Vice
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 148 -

1

President of Marketing and Product, explained in unvarnished terms the explicit commercial

2

nature of the enterprise. Specifically, Sports Video Group reported the following on March 3,

3

2010:

4

7

TEM began its work with the NCAA across all of its sports, turning
shelves of videotapes into a centralized, digitized historical archive.
In addition to serving as a backup, the archive can be searched and
accessed by schools and alumni for commercialization and revenue
opportunities.

8

...

9

11

The vault contains every full-length basketball game from the
Sweet Sixteen round through the championship of every NCAA
Tournament from 2000 to ’09. (Additional games are already in the
works).

12

...

13

“Over time, it’s not about this one site that we built,” Weiner says.
“It’s about being able to go to SI, ESPN, USA Today, and anyone
else who can get the specs for the API and create a licensing deal
with the NCAA. The Web-development team at ESPN or SI can
take their own NCAA page and build their own version of this
Vault, hooking up our video into their player without having to deal
with a video file or do editing.”

5
6

10

14
15
16
17
18
19
20
21
22
23

Everyone from Web publishers to iPhone-app creators can work
through this API to build applications, providing new opportunities
for monetization and ad revenue for the NCAA. For this year,
however, the Vault is part of the NCAA site and the existing
advertising-support model on that site.
“This is something that we see as a leading-edge development in
sports-rights development,” Weiner says. “This unlocks the archive
and brings it to life. Rather than creating a bunch of DVDs, you
bring the content forward, bring it to life, make it very easy to
publish and access.”

24
25
26
27

...
The next steps for this Vault will be to expand it beyond the Sweet
Sixteen round, and beyond the last decade. Additional games will
be added to the Vault as soon as this year’s tournament is complete,
with more on the horizon.

28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 149 -

1

“We’re talking with the NCAA about expanding this to other sports
of theirs as well,” Weiner says. That means that a NCAA baseball
or soccer vault could soon be on the way.

2
3

486. No valid and lawful releases with informed consent from Antitrust Class members

4
have been obtained for the use of their images, likenesses and/or names in this new vault
5
6
7

website, and any purported transfer of former student-athletes’ rights relating to this usage is the
product of the anticompetitive agreement described herein.

8
d. Video-Clip Sales to Corporate Advertisers and Others.
9
487. Via another of TEM’s websites, there are more than 12,000 NCAA related clips

10
11

spanning several decades offered for sale as “stock footage.” The overwhelming majority of

12

them are from NCAA Division I men’s basketball games. The clips run for varying time

13

periods, generally ranging from 10 seconds to several minutes. Many of them indicate that the

14
15

full game for which from which the clips were culled, as well as related highlight films, also are
available for sale via TEM. For many items, prices are not shown, and prospective buyers are

16
17
18
19

asked to contact the company for pricing. One interview clip appeared to cost approximately
$150.
488. In a brochure describing its partnership with the NCAA, TEM makes clear the

20

unmistakable pecuniary purpose of its venture with the NCAA. For example, Thought Equity

21

touts its role in “[d]elivering value through the preservation and monetization of the NCAA’s

22

footage assets.” Thought Equity further states that “[i]n 2005, the NCAA was searching for a

23
partner to preserve and manage the vast NCAA content library with two primary directives in
24
25

mind: 1. Preservation of historic footage and current content [and] 2. Accessibility to the entire

26

NCAA footage library to drive revenue generation.” TEM goes on to state that “[a]s the

27

NCAA’s exclusive licensing agent, Thought Equity drives revenue through the licensing of

28

NCAA sports content for use in films, commercials, corporate productions, documentaries and
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 150 -

1

emerging media applications.” TEM further states that it has assisted the NCAA in being

2

“among the first-to-market with innovative ways to monetize their video assets across the entire

3

spectrum of emerging media.” TEM claims that it “is committed to the continued growth of

4
this amazing library, enhancing its value through the preservation and monetization of the
5
6
7
8
9
10
11

NCAA’s valuable footage assets, [and] providing the premiere online destination” for NCAA
footage.
489. TEM further states that “[y]ear over year, Thought Equity Motion has grown
licensing revenue by nearly 100%.” Kevin Schaff, TEM’s founder and CEO is quoted as
stating that its NCAA collection “is one of the most unique and valuable content collections in
the world.”

12
13
14

490. TEM also stresses its cost-saving function as follows: “Thought Equity also staffs
the functions of receiving and fulfilling all footage requests, including research and technical

15

support – costs that previously added to the NCAA national office overhead.” TEM further

16

states that it provides services including restoration, digitizing content, and making content

17

available on-line “at no charge to the NCAA.”

18

491. TEM further notes that “[t]o date, Thought Equity has digitized and brought online

19
nearly 7,000 hours of NCAA sports action and manages more than 20,000 hours of content in
20
21
22

the NCAA library.” TEM further notes that “[n]ew NCAA content is continually added to
ensure the online library is a timely resource for NCAA content.”

23

492. TEM additionally states that “NCAA footage is sought-after content for

24

advertisers, corporations and entertainment producers as it delivers all the action, drama and

25

emotion unique to athletic competition.” TEM further states that “[b]ringing the NCAA content

26

online has been a key component to unlocking the value of the library.” TEM also states that its

27
online platform has “help[ed] drive revenue growth by making purchasing content easy and
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 151 -

1
2
3

fast.”
493. TEM further states that “NCAA Corporate Champions and Partner companies as
diverse as Coca-Cola, AT&T, State Farm Insurance, and Lowe’s have tapped the NCAA library

4
to create messaging to inform and inspire their audiences.” TEM further states that it has
5
6

“licensed NCAA content for use in hundreds of television programs, films, commercials and

7

corporate productions.” Moreover, Thought Equity states that “[l]ooking to the future,

8

exploding growth in emerging media such as online and mobile advertising and entertainment

9

translates to significant new revenue streams for footage licensing and programming

10
11

opportunities.”
494. TEM further states that its library can be utilized to allow NCAA member

12
13
14
15
16
17
18

institutions to create other revenue centers, e.g., “to create original programs and promotions
such as coaches’ shows, Hall of Fame and museum exhibits, web sites and entertainment
featured on in-venue video boards.”
495. TEM further states that it “brings value to the NCAA by continually creating
innovative ways to leverage their video assets,” and touting its “ability to drive revenue
employing its deep licensing expertise.”

19
496. TEM further states that “[a]ny use of NCAA content featuring individuals or
20
21

brands must be cleared for use,” and that it “brings deep expertise to navigating the

22

complexities of clearing NCAA student athletes, individual’s licenses and institutional

23

trademarks, protecting both amateur status and rights.”

24
25
26

497. No valid rights from Antitrust Damages Class members have been obtained by the
NCAA, its members or its licensees for the use of those class members’ images, likenesses
and/or names in video clips for sales to corporate advertisers and others, and any purported

27
transfer of former student-athletes’ rights relating to this usage is the product of the
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 152 -

1

anticompetitive agreements described herein.

2

e. Premium Content on Websites.

3

498. Numerous NCAA schools and conferences make available, or plan to make

4
available, streaming on-demand video content available to users for one-time and/or
5
6

subscription fees. This video content utilizes the images of Antitrust Damages Class members.
499. On July 27, 2009, Sports Business Daily reported that the Southeastern Conference

7
8

and XOS Technologies were teaming to form the SEC Digital Network that will "aggregate all

9

sports content and distribute it in a centralized model.”

10
11

500. Similarly, CSTV’s website indicates that CSTV.com “includes a network of
approximately 215 official college athletic websites.” CSTV further states that it “was founded

12
13
14

in 1999 by Brian Bedol and Stephen D. Greenberg, co–founders of Classic Sports Network, and
Chris Bevilacqua, a former Nike executive. CSTV officially launched in April 2003 from the

15

network's New York City based Chelsea Piers Studio, the Field House. In January 2006, CSTV

16

was purchased by CBS Corporation and became the 24–hour college sports network from CBS

17

Sports.”

18

501. No valid rights from Antitrust Damages Class members have been obtained by the

19
NCAA, its members or its licensees for the use of those class members’ images, likenesses
20
21

and/or names in premium website content, and any purported transfer of former student-

22

athletes’ rights relating to this usage is the product of the anticompetitive agreements described

23

herein.

24
25
26

f. Photos.
502. Replay Photos, LLC (“Replay Photos”) operates “The Official NCAA Photo
Store” in conjunction with the NCAA through which photographs of Class members are

27
available for purchase, as well as a separate website, through which additional photographs of
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 153 -

1

Class members are available for purchase. Thousands of photographs from postseason

2

tournaments in numerous sports are offered for sale.

3

503. In February of 2009, the NCAA and The Associated Press announced a three-year

4
partnership and in a press release stated the following:
5
6
7
8
9
10
11

The NCAA and The Associated Press this week announced a three-year
content partnership making AP the worldwide distributor of NCAA
Championship photography and creating the largest collection
anywhere of collegiate sports photos. Under the agreement, AP Images
will serve as the NCAA’s exclusive photo licensing agent, including
retail sales of archival photos, for all NCAA Championships and
events.
...

15

“In partnership with Rich Clarkson and Associates, the NCAA has
compiled an archive of photos representing the greatest moments in
NCAA Championship history,” said Greg Weitekamp, NCAA director
of broadcasting. “Combine the history of the NCAA photo archives
with the depth of photos compiled by AP Images over the last 100
years, and the NCAA and the AP Images partnership will create the
single greatest collection of collegiate sports photos.”

16

...

17

The new agreement between the NCAA and AP Images will allow the
NCAA to include NCAA photos in the AP Images archives, where they
will then be made available for editorial and commercial use. In
addition, the partnership will provide the NCAA with access to AP
Images’ archive of NCAA photography.

12
13
14

18
19
20
21
22
23

The partnership with the NCAA, headquartered in Indianapolis, will
also include a consumer outlet at NCAA.com, where consumers will be
able to purchase photos. NCAA Championship photos will be available
on the APImages.com site.
504. Replay Photo also has entered into contractual arrangements with at least 62

24
universities by which it offers for sale thousands of photographs of current and former student25
26

athletes. Framed versions of the photographs can cost up to several hundred dollars. The list of

27

available sports include at least the following: men’s and women’s basketball; football;

28

baseball; crew; men’s and women’s cross country; golf; gymnastics; men’s and women’s
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 154 -

1

soccer; softball; men’s and women’s swimming and diving; men’s and women’s tennis; men’s

2

and women’s track and field; men’s and women’s volleyball; water polo; and wrestling.

3

505. No valid rights from Antitrust Damages Class members have been obtained by the

4
NCAA, its members or its licensees for the use of those class members’ images, likenesses
5
6

and/or names in the aforementioned photos, and any purported transfer of former student-

7

athletes’ rights relating to this usage is the product of the anticompetitive agreements described

8

herein.

9
10
11

g. Action Figures, Trading Cards, and Posters.
506. On April 27, 2009, Sports Business Daily reported that certain former college
football players will be paid a royalty for the sale of action figures depicting them in their

12
13
14
15
16
17
18

college uniforms, and that their former schools also will be paid a royalty. Specifically, Sports
Business Daily stated the following:
Phoenix-based McFarlane Toys has been producing action figures
of professional athletes for more than a decade, but never before has
the company tapped the college market. That will change later this
year with the release of six action figures that portray NFL stars in
their college gear, including Tom Brady in his Michigan uniform
and Peyton Manning in his Tennessee garb.

22

“There’s not much out there on the college market that’s playercentric,” said founder Todd McFarlane, whose businesses include
everything from comics to toys and film animation. “If a guy had a
decent career, let’s see if the fans are still fond of him.”
Tennessee’s Peyton Manning is one of three SEC alumni in the sixfigure set.

23

...

24

Now he’s going to put some of those professional stars in their
college football gear to tap into the passion of the college fan. In
addition to Brady and Manning, the company will produce action
figures representing Adrian Peterson (Oklahoma), JaMarcus Russell
(LSU), Ray Lewis (Miami) and Hines Ward (Georgia).

19
20
21

25
26
27

...
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 155 -

1

To obtain the license, McFarlane went through IMG’s Collegiate
Licensing Co., the licensing agent for those schools. He’ll also pay
the players a royalty. Current college players are not allowed to be
featured in commercial endeavors such as this, according to NCAA
guidelines, which is why McFarlane went with the professionals.

2
3
4

“There’s two pieces to the deal,” McFarlane said. “You pay for the
uniform, which goes to the school, and you pay the player. That
beefs up the money going out, so you have to make sure you have a
model that works.”

5
6
7
8
9

11

These 6-inch-tall action figures will sell for about $10 each and hit
stores such as Wal-Mart, Target and Toys “R” Us, as well as the
local specialty stores that sell collectibles, by August, just in time
for the start of a new football season.

12

...

13

Fathead also is thought to be considering a line of posters that
would feature NFL stars in their college uniforms.

10

14

...

15
16
17
18

507. The above information is significant. The NCAA’s licensing arm, Defendant
CLC, has participated in a deal which expressly recognizes that former college players should
be paid a royalty when their image is utilized for profit.

19

508. No valid rights from Antitrust Damages Class members have been obtained by the

20
21
22

NCAA, its members or its licensees for the use of those class members’ images, likenesses
and/or names in the aforementioned items, and any purported transfer of former student-

23

athletes’ rights relating to this usage is the product of the anticompetitive agreements described

24

herein.

25
26

h. Video Games.
509. The images and likenesses of college student-athletes and former student-athletes

27
also appear in video games devoted to NCAA college basketball and football. The NCAA has
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 156 -

1

executed a license for video games with Defendant EA, a global interactive software company.

2

EA identifies itself as “the world's leading interactive entertainment software company” and

3

states that it “develops, publishes, and distributes interactive software worldwide for video

4
game systems, personal computers, cellular handsets and the Internet.”
5
6

510. EA and the NCAA enjoy a unique relationship. For example, on the NCAA’s

7

“Official Licensee List as of April 2011,” available on the NCAA’s website, EA is nearly the

8

only non-apparel manufacturer listed, and the others make items such as chairs and basketball

9

hoops. EA appears to be the only listed NCAA official licensee using images of current or

10
11

former players in products. EA further is unique in that it is the only NCAA licensee or
business partner that is making brand-new products, not based on pre-existing actual content

12
13
14

such as filmed images or photographs, that utilizes the images of current and former studentathletes. This explains in part, as detailed below, the yearly meetings involving the NCAA, EA

15

and CLC regarding the product approval process. The relationship thus is exceptionally close,

16

and different from that involving other third parties.

17
18

511. EA markets a wide variety of sports-based video games under the label EA
Sports. EA Sports describes their video games as including “simulated sports titles with

19
realistic graphics based on real-life sports leagues, players, events and venues.” Their
20
21

advertising taglines - “If it’s in the game, it’s in the game,” subsequently shortened to “It’s in

22

the game” - expressly and openly makes a major selling point out of the fact that all aspects of

23

the real-life games appear in their video games. EA Sports releases new iterations of most of

24

their games annually, three of which are titled “NCAA Football,” “NCAA Basketball” and

25

“NCAA Basketball: March Madness Edition.”

26

512. EA’s NCAA football games consistently have enjoyed sales of more than one

27
million units per year, and currently sales are estimated at more than two million units per year.
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 157 -

1

On EA’s website, NCAA Football 10 for the Playstation 3 game platform is offered for sale at

2

$59.95 per unit. In 2008, with respect to its basketball games, EA stated that “[t]he market

3

leader in basketball videogame sales, EA SPORTS basketball franchises (NBA LIVE, NBA

4
STREET and NCAA March Madness) have combined generated more than $1 billion in retail
5
6
7

sales over the past 10 years.” On EA’s website, NCAA Basketball 09 is currently listed with a
manufacturers’ suggested retail price of $59.95 per unit.

8

513. EA has acknowledged that its NCAA games are among its major revenue drivers.

9

For example, in an SEC Form 10-K, EA stated that “[f]or fiscal year 2008, net revenue in North

10
11

America was $1,942 million, driven by Rock Band, Madden NFL 08, and NCAA Football 08.”
514. Additionally, in its 2010 SEC Form 10-K, EA advised investors that “[i]f we are

12
13
14

unable to maintain or acquire licenses to include intellectual property owned by others in our
games, or to maintain or acquire the rights to publish or distribute games developed by others,

15

we will sell fewer hit titles and our revenue, profitability and cash flows will decline.

16

Competition for these licenses may make them more expensive and reduce our profitability. . . .

17

Competition for these licenses may also drive up the advances, guarantees and royalties that we

18

must pay to licensors and developers, which could significantly increase our costs and reduce

19
our profitability.”
20
21

515. The photorealistic nature of EA’s NCAA College Football and NCAA College

22

Basketball video games has been noted. Legal Affairs magazine reported the following in 2006

23

regarding EA’s NCAA Football 06, which is instructive for its description of the game’s use of

24

player images, as well as the interaction among the NCAA and Defendants CLC and EA:

25
26
27
28

THE BEST PLAYER IN COLLEGE FOOTBALL THIS SEASON
is arguably the quarterback at the University of Southern California.
He is a senior, listed at 6-foot-5 inches and 225 pounds. He wears
number 11. His name is Matt Leinart. The best player in the wildly
popular video game called "NCAA Football 06" also happens to be
a quarterback at USC. He, too, is a senior, listed at 6-foot-5 inches
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 158 -

1
2
3
4
5
6
7
8
9
10
11

and 225 pounds. And, not coincidentally, he wears number 11. His
name, however, is QB #11.
You don't have to know a PlayStation from a train station to get
what's going on. QB #11 is the digitized analogue of Leinart; he
resembles the living version right down to the mop of dark hair on
his head. So why doesn't the game from Electronic Arts use
Leinart's name? National Collegiate Athletic Association
regulations prohibit companies from profiting off a student-athlete's
likeness, so EA does this two-step - with the NCAA's blessing. In
exchange for a cut of revenues from the video game, the association
has granted the software company the right to reproduce the
stadiums, uniforms, and mascots of schools that are members of the
NCAA, and the game-makers do so with almost photographic
accuracy. Under the current regulations, the only thing off-limits is
the use of players' names and recognizable facial features. The
NCAA doesn't want member-schools marketing their studentathletes for commercial purposes, and, in order to prohibit them
from doing that, it has to restrain itself as well.

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

Even though QB #11 is not identified by name, however, EA and
the NCAA might struggle to keep straight faces when they claim
that he is not supposed to represent Leinart for the purpose of
making a profit. EA is the North Star of a burgeoning sports video
game industry, which made revenues of $1.9 billion in 2004, and
the company's hallmark is precise, nay obsessive, attention to detail.
EA's slogan boasts, "If it's in the game, it's in the game." That
means nailing the little stuff, capturing nuances like a player's
wristband placement and facemask style. In its annual iterations of
"NCAA Football," the software company makes the game as
lifelike as possible, within the constraints marked by the NCAA. A
quick survey of the rest of the players for USC's 2005-2006 Trojans
reveals that everyone has a digitized doppelganger that's dead on.
Tight end Dominique Byrd -- pardon, TE#86 -- sports braids like
his real-life model's. The height and weight of backup defensive
end Rashaad Goodrum, aka DE #44, are as true as Leinart's, though
Goodrum played just a few downs during the 2004-2005 season.
"NCAA Football 06" has pinpoint-accurate rosters for all 117
Division 1-A football programs (which engage in the highest level
of collegiate competition), not to mention graphics so advanced that
you can see the stadium reflected in a quarterback's helmet, the face
paint on a cheerleader's cheeks, the Nike swoosh on a tailback's
cleats, and the haze around the lights during a night game at the
University of Florida's stadium, the Swamp. For all these reasons,
the omission of players' names seems little more than a formality,
done with a wink and a nudge in order to keep the NCAA satisfied.

28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 159 -

1
2
3
4
5
6
7
8
9
10
11

Especially since an owner of the video game can change QB #11 to
Matt Leinart by fiddling with a few buttons. Once the owner inputs
a player's name, it appears on the back of the player's jersey and can
be shouted by the virtual announcers who do the play-by-play for
the games within the game. Game owners can also adjust a virtual
player's facial hair, adding, say, a goatee to match the real player's
face, since players are known to change their looks from time to
time. Although not approved by the NCAA, memory cards for
automatically uploading each school's roster are available from
independent manufacturers. Oddly, the main difference between
the players and their video facsimiles are their hometowns, which in
the game are intentionally off by a few suburbs (QB #11's
"hometown" of La Habra, Calif., is 15 miles from Leinart's native
Santa Ana). But the point is, in EA's hyper-detailed world, video
game characters now have hometowns. The NCAA's amateurism
regulations, originally designed to guard against things like posters
and trading cards featuring individual athletes, likely never
contemplated a day when an amateur's digital likeness could fetch a
profit.

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

...
A key player in managing that distinction is the Collegiate
Licensing Company or CLC, which handles product licensing for
collegiate sports organizations like bowl games committees, athletic
conferences, and the NCAA. CLC performs two tasks for the
association: protecting the amateur standing of its members' athletes
and obtaining for members the most lucrative licensing deals. Last
summer, an NCAA subcommittee on amateurism invited Pat Battle,
the president of CLC, and athletic directors and athletes from
Division I-A schools to a meeting—the one at which Brand
spoke—about licensing and promotion issues.
At that meeting, Battle suggested something Brand probably didn't
want to hear: that revenues for the NCAA would increase if the
association's limits on video games were eased. He indicated that
game manufacturers were growing frustrated with the restrictions,
and that the NCAA needed to address that frustration or risk
diminishing a valuable source of revenue. "It's a concern, and I
stand by that," Battle said recently. "A failure to keep up with
technology and take full advantage from a consumer standpoint
may make the NCAA [video game] titles less valuable."
...

“I think EA will continue to push for more leeway," said CLC's
Battle. EA seems to think it will, too. "This has been an ongoing
discussion: 'O.K., how far can we go?' " EA spokeswoman Jennifer
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 160 -

1

Gonzalez told The Indianapolis Star earlier this year.

2

Since it started making "NCAA Football," EA has gained
substantial concessions from the NCAA. The early versions of the
game weren't nearly as accurate as the latest ones in terms of the
height, weight, or skin color of the athletes. But the NCAA may
balk at going further: It's unlikely that EA will ever be allowed to
include player names.

3
4
5
6
7
8
9
10
11

THIS IS NOT THE FIRST TIME that the NCAA's rules about
amateurism have struggled to address new licensing opportunities.
About 15 years ago, college-apparel sales exploded into a
substantial source of revenue for major athletic programs, and one
of the touchiest issues involved replica jerseys. They featured a star
player's number and school colors, but not his name, even though
every fan knew whose jersey he was buying. Replica jerseys are
still big business: Every Saturday, Matt Leinart looks up to see
USC's stands swelling with a sea of maroon No. 11 jerseys, which
sell for about $50 each online and at the campus bookstore.

12
13
14
15

The jerseys were green-lighted under the NCAA's rules for the
same reason that "NCAA Football" was approved: The association
considers a jersey number a step removed from a player's identity.
"I see nothing wrong with selling jerseys with just numbers on
them," Brand said at last summer's meeting. "But I would draw the
line at selling the names."

16
17
18
19
20
21
22
23

The argument can be made that the video game industry deserves
more leeway than apparel makers, because games ostensibly
promote entire teams—even if those teams feature a few superstars.
"The jerseys are centered around one or two players, whereas the
video game features every player on the team," CLC's Battle
explained. "If the video games wanted to use the name and likeness
of one or two players, that would be impossible. But if we're
looking at a situation where the entire team is being promoted, it
may change the discussion." EA would argue that the video games
are similar to television broadcasts, which are obviously filled with
plenty of highlights and interviews with individual players, yet are
licensed by the NCAA for big bucks and regarded as innocuous
staples of Americana.

24
25

516. EA has expressly incorporated the likenesses of Antitrust Damages Class members

26

into its games. As one example, NCAA Basketball 09 has a “Classic Teams” feature in which

27

game players can choose to play with “classic teams.” These “classic teams” expressly use the

28

likenesses of Class members, in a fashion identical to that described above. A post on EA’s
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 161 -

1

game forum website dated March 12, 2009 identifies the roster of each of these classic teams,

2

and provides the players’ name; position; uniform number; type of t-shirt worn underneath a

3

jersey; sock length; and use of ankle braces, knee braces, wrist taping. The post further

4
specifically identifies the following “classic teams” as being incorporated into the game: 2008
5
6

Kansas Jayhawks; 2007 Florida Gators; 2006 George Mason Patriots; 2005 North Carolina

7

Tarheels; 2005 Illinois Fighting Illini; 2004 Connecticut Huskies; 2003 Syracuse Orangemen;

8

2002 Maryland Terrapins; 2001 Duke Blue Devils; 1999 Connecticut Huskies; 1997 Arizona

9

Wildcats; 1996 University of Massachusetts Minutemen; 1996 Kentucky Wildcats; 1995 Wake

10
11

Forest Demon Deacons; 1995 UCLA Bruins; 1994 Arkansas Razorbacks; 1993 North Carolina
Tarheels; 1993 Michigan Wolverines; 1992 Duke Blue Devils; 1991 UNLV Runnin’ Rebels;

12
13
14

1991 Georgetown Hoyas; 1991 Arkansas Razorbacks; 1990 LSU Tigers; 1990 Loyola
Marymount Lions; 1990 Georgia Tech Yellow Jackets; 1989 Syracuse Orangemen; 1989

15

Michigan Wolverines; 1988 Kansas Jayhawks; 1987 Indiana Hoosiers; 1986 Navy

16

Midshipmen; 1986 Louisville Cardinals; 1986 Duke Blue Devils; 1985 Villanova Wildcats;

17

1985 St. John’s Redmen; 1984 Georgetown Hoyas; 1983 North Carolina State Wolfpack; 1983

18

Houston Cougars; 1982 North Carolina Tarheels; 1981 Virginia Cavaliers; 1981 Indiana

19
Hoosiers; 1980 Louisville Cardinals; 1979 Michigan State Spartans; and 1979 Indiana State
20
21
22

Sycamores.
517. All of EA’s NCAA-related video games use photographic-like realism in the

23

depiction of all aspects of the visual presentation, including the player uniforms, school logos,

24

stadiums and mascots. While not identifying them by name, EA also uses likenesses of

25

numerous specific former student-athletes in their games. The players on the virtual college

26

teams in the games correspond exactly to their real-life counterparts in many characteristics,

27
such as position, jersey number, race, size, height, weight and home state. Even uniquely
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 162 -

1

identifiable idiosyncratic characteristics of real-life players appear in their video game virtual

2

counterparts.

3

518. Each year, the NCAA games sold by EA feature the likenesses of players,

4
including ones that no longer are NCAA athletes. For example, NCAA Football 09 and NCAA
5
6

Basketball 09 are currently for sale, and feature substantial numbers of former NCAA players.

7

Additionally, versions based on prior years are also for sale. For example, “March Madness

8

06,” “March Madness 07,” and “March Madness 08” are all listed for sale via Electronic Arts’

9

website, which also notes that the games are available via retailers. These games also feature

10
11

the likenesses of substantial numbers of former players.
519. On April 23, 2009, EA announced that former college players Michael Crabtree,

12
13
14

Brian Johnson, Brian Orakpo and Mark Sanchez “will be featured on platform exclusive covers
of EA SPORTS NCAA® Football 10, available in stores July 14th” and that “[e]ach cover

15

athlete led his team on a memorable run toward the BCS National Championship, helping to

16

shape the competitive landscape of college football in 2008.” Electronic Arts further stated that

17

“[d]eveloped in Orlando, Florida by EA Tiburon, and licensed by The Collegiate Licensing

18

Company, NCAA Football 10 will be available on the Xbox 360® video game and

19

entertainment system, the PlayStation®2 and PLAYSTATION®3 computer entertainment

20
21

systems, and the PSP® (PlayStation®Portable).” On EA’s website, the players’ mentioned

22

above appear in mock-ups of packaging covers for the game, as well as sample screen shots

23

from the game, in their college team uniforms. The cover of NCAA Basketball 09 features the

24

likeness of former UCLA basketball player Kevin Love in his collegiate uniform. It appears

25

that licensing deals have been struck with the players depicted on the covers.

26

520. In an interview dated September 21, 2005, Mike Mahar, the producer of EA’s

27
NCAA March Madness 06 game, stated the following about the 39 All-Time Teams in that
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 163 -

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

year’s game:
There are 14 new All-time teams to the game this year. Highlights
include All-Georgia (Dominique Wilkins), All-Gonzaga (we have
such depth now we can start compiling all time teams for the best
'mid-majors'), All-NC State (David Thompson), and All-Time
teams for the ACC, Big East, Big Ten, Big 12, SEC, PAC 10, and
CUSA.....basically the best players ever from each of the 'major
conferences.
We select a wide range of players from each school/conference
using websites and the respective Hall of Fame. From there we
send the list out to as many basketball experts as possible.....for
example I asked Kenny Smith who he thought should be on the
All-Time Carolina team when he was recording here last year.
Occasionally, player’s names are passed by Dick Vitale, we use
existing lists such as the ACC Top 50 players of all time...etc.
After we have the short list we look at the ratings, historical stats,
and achievements as well as players who will be popular with our
consumers and we come up with the bench and the starting 5.
521. In a November 12, 2008 interview, Novell Thomas, EA’s Associate Producer for
NCAA Basketball 09 stated the following:
However, rather than talking about the 2008-2009 teams, I'm going
to take you back to the past and talk about classic teams.
...
The Tournament of Legends is a customizable, 64 team, single
elimination tournament. Top teams from the 50's, 60's, 70's, 80's,
90's and 2000's are selectable. Coming up with and nailing down
the legendary teams was not an easy process. A lot of time was
spent researching the best teams and players from the various eras.
Some of the factors we looked at were: championships won,
win/loss records, team personnel and memorable team and player
performances. To ensure that we had the correct teams selected, we
leveraged our partners and contacts at ESPN and Blue Ribbon. We
also got Basketball Hall of Fame contributor, Dick Vitale's
thoughts and recommendations - after all, he's been around college
basketball for years and has seen all of these teams and players
first hand.
Here's a breakdown of the various players and teams throughout
the various eras. I apologize in advance for not being able to
include names:
50's....One of the best players of all time played during this era.
The University of San Francisco’s center, #6, is arguably one of
the best players to play that position. He won two championships
and many many more at the professional level. Any player who
averages 20 points and 20 rebounds per game during his college
career, is definitely worth playing with. However, you can't forget
about 1957 Kansas' center #13 (who averaged 30pts and 18rpg in
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 164 -

1

college) or 1954 LaSalle's ball handling big man.

2

60's....The center #11, from Ohio State was one of the greats from
this era. He was an unbelievable rebounder, scorer and passer
(24ppg/17rpg). But we all know that this era belongs to UCLA's
center, #33. It's tough to argue that he's not the #1 player of all
time. He won 3 National Championships and awarded 3Tournament MOP honors. The only thing that stopped him from
getting four of each was perhaps the rule which deemed freshmen
ineligible.

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

70's....there were some great players from this era but I've got to
start off with the guy nicknamed "Pistol" who averaged 44 points
per game. He wore #23 and played point guard for LSU and
averaged 44 points per game. Did I say that he averaged 44 ppg.
That's unbelievable. The 70's started off with a bang and ended off
with an even bigger bang. Two of college basketball's greatest
players, in Indiana States forward #33 and Michigan State's
Magician #33. They went head to head for the national
championship in 1979 and this game is said to have changed
basketball forever and very few disagree.
80's....The talent level and number of elite players continued to
pour in during this era. Indiana's point guard #11 dazzled the
competition with his smooth controlling style; Houston's center
#34 and small forward #22, members of Phi Slama Jama were
great to watch with their up-tempo style; North Carolina's shooting
guard #23 (aka. "the great one") needs no introduction and #52
their power forward was also known for having a few ‘Big Games'
of his own; there was also the center from Navy, "the Admiral"
who brought some excitement to that program; and you can't forget
about the center from Georgetown #33. These were college
basketballs' best during this time and now members of the NBA's
greatest 50 players of all time. With all of these great players there
were definitely some great games and upsets. NC State over
Houston and Villanova over Georgetown were two upsets during
this era which people still talk about to this day.
90's....The talent continued to pour into college basketball during
this era. The style of play changed drastically and the up-tempo
style really took over (make sure you check out the Producer
Diaries for Game Tempo). You had teams pushing the ball in
transition, pressing and trapping in the full court and really
increasing the entertainment value in college basketball. My
favorite team during the early 90's was definitely UNLV. They had
guys who could GO and the athleticism amongst their
forwards/centers was second to none. The ameba defense they use
to play still gives me chills and those lob passes and screams were
the icing on the cake. You can't forget about Duke. The Blue
Devils had some great players who made big plays at big times.
However, 1996 Kentucky raised the bar to an entirely new level.
The talent level was off the charts and 4-5 players could play
multiple positions on the court. They had big guys (6'8 and taller)
constantly shooting threes, guards throwing down sick dunks...that
roster had so many future NBA stars (I believe 7 of them ended up
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 165 -

1

playing in the association), which further emphasizes how talented
they were. But the most talented player probably came from the
ACC's Wake Forest, "the Big Fundamental" - a true big man who
had a great feel for the game. He knew when to kick it out and
when to go to work in the post.

2
3
4

2000's....2005 Illinois and 2005 North Carolina had some future
NBA talent as well but nothing during this era was bigger than the
Florida Gators back to back championships. 4 out of their 5 starters
are now in the NBA but for them to win back to back
championships during this day and age, when parity is at an all
time high, is really impressive. There weren't too many people who
believed it could be done but they proved us all wrong.

5
6
7
8

There were a ton of teams and players who I did not mention but as
you can tell, we've now granted users the ability to determine who
the best legendary teams of all time are. I encourage all of you to
load up the Tournament of Legends mode and take your favorite
team to the winners circle. Or better yet, try to win the
championship with a team from each era and see the difference in
the various teams styles of play.

9
10
11
12

I really enjoy these legendary teams and everything that comes
along with them: the classic team logos, the classic jerseys, old
school sneakers (ie. Chuck Taylors) and overall look, will
definitely get you in that "old school" realm.

13
14

Here's a list of all the teams in the ESPN Classic Tournament of
Legends:

15
16

Arizona

1997

17

Arkansas

1991, 1994

18

Cal

1959

19

Cincinnati

1962

20

Connecticut

2004, 1999

21

Duke

2001, 1986, 1992

22

Florida Gators

2007

23

George Mason

2006

24

Georgetown

1991, 1984

25

Georgia Tech

1990

26

Houston

1983

27

Houston

1968

28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 166 -

1

Illinois

2005

2

Indiana

1981, 1976, 1987

3

Indiana State

1979

4

Kansas

1952, 1957, 1988, 2008

5

Kentucky

1996, 1978, 1954

6

LaSalle

1954

7

Louisville

1980, 1986

8

Loyola Maramount

1990

9

LSU

1970, 1990

10

Marquette

1977

11

Maryland

2002

12

Michigan

1993, 1989

13

Michigan State

1979

14

Navy

1986

15

North Carolina

1957, 1982, 1993, 2005

16

North Carolina State

1974, 1983

17

Ohio State

1960

18

San Francisco

1956

19

St. John's

1985

20

Syracuse

1989, 2003

21

Texas Western

1966

UCLA

1968, 1967, 1972, 1975,
1995

Umass

1996

UNLV

1991

Villanova

1985

Virginia

1981

Wake Forest

1995

22
23
24
25
26
27
28

FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 167 -

1
2
3
4

West Virginia

1959

522. Numerous athletes featured on the covers of EA’s various games have made
telling admissions about the use of their likenesses in the games. For example, in a November
21, 2005 interview with Raymond Felton, former point guard for the University of North

5
Carolina men’s basketball team, Mr. Felton stated:
6
7
8
9

I usually play the sports games like March Madness, NBA Live,
Madden, and MVP Baseball. We used to play in the dorms all the
time last year, but I never played as North Carolina. I'm not the
type of person who really likes to play as himself. I always check
out what I look like, but I don't want to spend time working on my
jumper in the game when I can work on it in real life.

10
11

523. In an interview dated June 23, 2006, Adam Morrison, former Gonzaga University

12

men’s basketball player and a player featured on the cover of EA’s March Madness 07, stated:

13

““Everyone always thinks they should be faster. You look at what your overall rating is, and on

14

the EA college basketball game last year, if you had that three-point icon under your feet, you

15
16

were happy.”
524. In an interview dated June 16, 2009, former Oklahoma University men’s

17
18
19
20

basketball player Blake Griffin, who appears on the cover of EA’s NCAA Basketball 10, stated:
“It's crazy how much it looks like the guys on our team.”
525. Kevin Love, who played college basketball at UCLA, said in a 2008 ESPN

21

interview about EA’s NCAA Basketball ’09 video game that “[y]ou go into the replay and

22

zoom in and it looks exactly like me. It’s incredible.”

23

526. EA’s representative regularly attend practices for NCAA teams with the

24
permission of NCAA member schools to study in detail the physical attributes and playing
25
26

characteristics of players.

27

527. There is rampant commercialization within the context of EA’s games. A

28

multitude of non-player individuals and corporations are featured in the game, all presumably
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 168 -

1

pursuant to lucrative contractual arrangements with EA. Each year, more and more third parties

2

participate in revenue derived from and relating to EA’s games, and each year, class members

3

are entirely excluded from such participation. With respect to various items of athletic-related

4
gear and apparel, as described below, class members are being used as walking-billboards for
5
6
7

corporate interests without compensation.
528. For example, in EA’s NCAA Basketball 09, video game players can make various

8

shoe selections to have players choose among at least the Nike, Adidas and Reebok brands, all

9

of which are identified by name as well as by their logos on the shoes. Those logos additionally

10
11

appear on team uniforms.
529. The box cover for NCAA Basketball 09 prominently notes that the game is

12
13
14
15

“Featuring ESPN.” Dick Vitale, a prominent announcer on the ESPN television network,
serves as a game announcer in EA’s game, and his image appears on posters in crowds.
530. Moreover, there are numerous references to arenas with corporate sponsorships.

16

As just a few examples, Ohio State’s Value City Arena, the University of Colorado’s Coors

17

Event Center, and DePaul University’s Allstate Arena are all featured.

18

531. In 2008, EA announced a deal with the National Association of Basketball

19
Coaches, a group representing NCAA Division I and other basketball coaches. Pursuant to the
20
21

deal, coaches’ names and likenesses began appearing in EA’s NCAA Basketball 10, released in

22

December of 2009. In NCAA Basketball 09, Kansas Coach Bill Self is featured to provide an

23

introduction to the game.

24

532. With respect to EA’s NCAA Football 09, the commercialization is even more

25

prevalent. There are a myriad of branding options per player, including an option to select

26

Riddell Revolution, Adams or Schutt helmets and facemasks. For visors, there are options for

27
video game players to select options for at least the Nike, Under Armour, and Oakley brands.
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 169 -

1

For shoes, there are options to select at least the Nike and Adidas brands. Those corporate

2

logos also appear on player jerseys. There is an additional option to select Nike gloves.

3

533. During the process of loading the game, there is a prominent full-screen devoted to

4
the Coca-Cola Company’s “Coke-Zero Season Showdown” promotion. A pre-game weather
5
6
7
8
9
10
11

report is sponsored by The Weather Channel / Weather.com, and game players can also select a
“live-feed” from the Weather Channel.
534. There also is substantial ESPN branding. ESPN college football announcers Kirk
Herbstreit and Lee Corso are utilized, and ESPN personality Erin Andrews provides side-line
reports. There also is a Lee Corso “Ask Corso” default setting for assistance in choosing which
play to run that appears along with an image of him.

12
13
14

535. An EA press release dated September 11, 2008, in which EA announced the
release of NCAA Basketball 09, also stated that “NCAA Basketball 09 will feature Division I

15

coaches in-game for the first time. Each coach will provide real time instruction and feedback,

16

helping gamers control the tempo by executing their team’s offense and defense to perfection.”

17

It appears that licensing deals have been struck with these coaches for use of their likenesses.

18

536. EA has a unique partnership with the NCAA with respect to the development of

19
electronic video games featuring the images and likenesses of current and former student20
21

athletes who play or have played Division I college football and basketball. EA has unrivaled

22

access to the highest levels of the NCAA’s hierarchy that it has used to advocate and obtain

23

agreement on making its NCAA-themed videogames as photorealistic as possible, all the while

24

knowing and agreeing with the NCAA’s position that student-athletes would receive no

25

remuneration for the use of their enhanced images and likenesses. Indeed, EA and the NCAA

26

have had extensive discussions about the use of the names of student-athletes in its videogames

27
and EA reached agreement with the NCAA to propose amendments to the NCAA’s bylaws that
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 170 -

1

would accomplish just that. The timeline of EA’s recent involvement and agreements with the

2

NCAA may be summarized as follows.

3

537. EA has entered into three licensing agreements with CLC, on behalf of the NCAA

4
and NCAA member institutions, in connection with its NCAA-themed video games: (a) a 20055
6

11 football agreement, (b) a 2005-10 basketball agreement, and (c) a 2008-11 EA football

7

license agreement. Each of these agreements constitutes an overt act in furtherance of the

8

conspiracy alleged herein. In each of these contracts, EA expressly agreed to abide by the

9

NCAA’s rules with respect to student-athletes. As described in this Complaint, those rules

10
11

prohibited EA from offering any student-athlete compensation for the use of the athlete’s name,
image or likeness in its NCAA-themed video games. EA further agreed to extend its agreement

12
13
14

with the NCAA, prohibiting compensation to student-athletes, to former student-athletes.
538. The NCAA, as well as individual schools and conferences, benefits financially

15

from the NCAA’s license agreement with EA. For example, the Des Moines Register recently

16

reported that one school alone, Iowa State University, has received royalties from football and

17

basketball video games averaging $17,600 a year in the last two years. It was further reported

18

that for the University of Iowa, “such [video game royalty] allocations come from the Big Ten

19
Conference as part of a package that includes television and other licensing revenue.”
20
21

539. The NCAA also had a license with 2K Sports, a subsidiary of Take-Two

22

Interactive Software, Inc., for video games rights for college basketball. 2K Sports has

23

produced several iterations of their college basketball video game between 2005 and 2008

24

(College Hoops 2K6, College Hoops 2K7, and College Hoops 2K8.) which they still market

25

and sell. 2K Sports discontinued the series and the NCAA subsequently granted EA the

26

exclusive license for college basketball.

27
540. The NCAA News, on June 21, 2004, provided detail on discussions involving the
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 171 -

1

NCAA, CLC, and EA, and also served as a conduit to further communicate the message to the

2

NCAA’s members the importance of video game licensing revenues. Specifically, The NCAA

3
4

News reported that the NCAA’s Agents and Amateurism Subcommittee of its Academics /
Eligibility / Compliance Cabinet met on June 9th and 10th, 2004; Pat Battle of the Defendant

5
6

CLC made a presentation to the group, which as well as the following panelists: Ohio State

7

University Athletics Director Andy Geiger, University of Connecticut Athletics Director Jeff

8

Hathaway, Miami (Ohio) University Athletics Director Brad Bates and University of Notre

9

Dame Associate Athletics Director Bill Scholl. The NCAA News specifically stated the

10

following:

11

The CLC's Battle, however, indicated interest in seeing the NCAA
allow more latitude in the marketing areas, specifically in video
games. His concerns centered on the risk of losing business rather
than gaining it, though he did project that licensing revenues would
increase dramatically under more flexible rules. Battle said video
game manufacturers appear to be more and more frustrated with
NCAA restrictions, especially since the technology exists to
produce a much more realistic version -- and thus a much more
attractive and marketable version – of college football and
basketball games.

12
13
14
15
16
17
18
19
20

CLC’s and EA’s message to the NCAA and its members was heeded and agreed to.
541.

The Madden Nation blog site reported on a June 2005 interview with a member

of EA’s Development Team for NCAA College Football 06 video game where the interviewee
stated that EA wanted to put student-athlete names in future editions of the video game and was

21
“working with the NCAA on this matter....”
22
23
24
25

542. Legal Affairs further reported the following in its January / February 2006 issue:
Last summer, an NCAA subcommittee on amateurism invited Pat
Battle, the president of CLC, and athletic directors and athletes
from Division I-A schools to a meeting—the one at which Brand
spoke—about licensing and promotion issues.

26
27
28

At that meeting, Battle suggested something Brand probably didn't
want to hear: that revenues for the NCAA would increase if the
association's limits on video games were eased. He indicated that
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 172 -

1

4

game manufacturers were growing frustrated with the restrictions,
and that the NCAA needed to address that frustration or risk
diminishing a valuable source of revenue. "It's a concern, and I
stand by that," Battle said recently. "A failure to keep up with
technology and take full advantage from a consumer standpoint
may make the NCAA [video game] titles less valuable."

5

...

6

"I think EA will continue to push for more leeway," said CLC's
Battle. EA seems to think it will, too. "This has been an ongoing
discussion: 'O.K., how far can we go?' " EA spokeswoman Jennifer
Gonzalez told The Indianapolis Star earlier this year.

2
3

7
8
9
10
11

Since it started making "NCAA Football," EA has gained
substantial concessions from the NCAA. The early versions of the
game weren't nearly as accurate as the latest ones in terms of the
height, weight, or skin color of the athletes.

12
13
14

543. The above information regarding the ongoing discussions between Defendants
NCAA, CLC, and EA is significant. Each agreed to allow more and more realistic depictions of

15

player likeness including former players, to act as if they had the rights to do so, and to not

16

tender any compensation to former players for doing so.

17
18

544. In a GameTrailers.com interview conducted in 2007, Sean O’Brien, the producer
of EA’s NCAA Basketball 08 video game, when asked about real players in the game, said that

19
that was “[s]omething that we are constantly exploring and continuing to explore with the
20
21

NCAA. I think we have made a lot of progression so I hope to be there one day soon."

22

545. In an interview conducted in 2008, O’Brien, who was then the producer of EA’s

23

NCAA Basketball 09 video game, talked about how “[h]aving the partnership with the NCAA

24

gives us the opportunity to work directly with all of the partners that are part of the NCAA....”

25

With respect to the inclusion of actual student-athlete names and likenesses in EA’s NCAA-

26

themed video games, O’Brien said that he would like to see those in the games and that the

27
NCAA “know[s] how we feel....The NCAA knows we want it and they’re investigating it for
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 173 -

1

us.” In another interview from 2008 disseminated by IGN, O’Brien defended EA’s making

2

available college team rosters for use in NCAA Basketball 09, O’Brien stated that “[i]t's all

3

above board to add names to rosters and post them for other gamers to use....It's above board

4
with the NCAA and it's perfectly legal – 100 percent count on having rosters with names
5
6
7

available for all schools shortly after release.”
546.

In an Operation Sports interview conducted in 2010, Ben Haumiller, designer of

8

EA’s NCAA Football 10 said that EA has a "laundry list" of topics that are discussed with the

9

NCAA every year including: (1) player names, (2) coaches, and (3) playoffs. EA would create

10
11

"pitches" for the NCAA to review to incorporate certain items into the videogame.
547.

EA and the NCAA have also colluded to allow third parties to use the names of

12
13
14
15
16
17
18
19

student-athletes in connection with televised presentations of EA video games without
compensation. A 2008 article reported as follows:
The broadcasting crew represented in EA Sports annual NCAA
Football 09 are ESPN’s “College Game Day” broadcasters: Brad
Nessler, Kirk Herbstreit, and Lee Corso (“Sportcasters”). One can
assume the Sportcasters receive compensation for the use of their
likenesses in NCAA Football 09. Followers of college football are
well acquainted with this crew. They are seen live on Saturdays
throughout college football season on ESPN’s College Game Day
coverage. The College Game Day set travels to the location of the
biggest NCAA football games of each week.

20
21
22
23
24
25
26
27
28

During College Game Day coverage, Sportcaster commentary is
regularly combined with simulated game action featuring NCAA
Football 09 video game representations. The student-athlete
counterparts to the video game representations play for their
member institutions in NCAA football games appearing live on
ESPN coverage later that day. It is a unique and innovative way to
market both NCAA football games and NCAA football video
games to the marketers’ most desired demographic. However, while
the individual student-athletes’ video game representation is being
displayed and broadcast on ESPN, the Sportscasters refer to the
video game representation by speaking the name of the studentathlete counterpart, thereby publishing the linked identity of the two
entities. This activity blatantly violates that student-athlete’s
property right, the right of publicity, as well as the NCAA – EA
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 174 -

1

Sports Licensing Agreement.

2

Specific examples of concurrent video-game student-athlete
representation and television broadcast with vocal reference
include: Tim Tebow, a Heisman Trophy winning quarterback for
the University of Florida, on September 6, 2008, promoting the
game between the University of Florida and the University of
Miami; Knowshon Moreno, the star running back for the then
number one ranked Georgia Bulldogs, on September 17, 2008,
promoting the game between the University of Georgia and Arizona
State University; and Sam Bradford and Colt McCoy, the starting
quarterbacks for Oklahoma University and the University of Texas,
respectively, on October 9, 2008, promoting the annual Red River
Rivalry, a game between the OU and Texas.

3
4
5
6
7
8
9
10
11

548. The same article notes that EA and the NCAA have mutually condoned or
collusively participated in internet marketing of EA’s NCAA-themed video games that makes

12
13
14
15
16
17
18
19
20
21
22

use of student-athletes’ names without compensation:
The ESPN website provides similar examples of commercial use of
the student-athletes’ identity, including: replayable videos featuring
vocal commentary which links the student-athlete to NCAA
Football ‘09 counterpart by name and articles discussing and
reviewing NCAA Football 09 written by ESPN contributors.
The NCAA Football 09 Top 25 Countdown is [a] replayable
preaseason poll production identifying the top rated teams in
NCAA Football 09. The NCAA Football 09 Top 25 Countdown
features NCAA Football 09 video game representations in action
accompanied by announcer commentary. The announcer
commentary includes reference to prominently displayed NCAA
Football 09 video game representations by the spoken name of the
student-athlete counterpart. The NCAA Football 09 Top 25
Countdown utilizes this method for all twenty-five NCAA member
institution football teams featured.

23
24
25
26
27
28

The ESPN website contains articles discussing and reviewing
NCAA Football 09. Many such examples illustrate the instantly
recognizable nature of the video game representations to their
student-athlete counterparts. An interesting example explains EA
Sports attribute rating system concerning the video game
representations and refers to the representations by the written name
of the student-athlete counterpart. This article contains a statement
demonstrating bad faith on the part of both EA Sports and ESPN in
their dealings with the NCAA and its student-athletes; “[w]hile the
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 175 -

1
2

in-game players go nameless because of NCAA regulations -- well,
at least until someone fills up their EA Locker with a roster – we’ve
got the real names here, so you don't have to think.”

3
4

549. Similarly, EA and the NCAA have colluded to purposefully and knowingly allow

5

third parties to create and market modifications to the NCAA video games which allow players

6

to upload complete roster information for various teams, including player names. The NCAA

7

and CLC have allowed this because it benefits them financially by increasing the popularity of

8
EA’s NCAA games, thereby increasing the royalty payments to the NCAA. As explained in an
9
10
11
12
13
14
15
16
17

article in the website abovethelaw.com:
So, game publishers like Electronic Arts, essentially, cheat. If you
pick up the copy of a college sports game, you’ll see all the
players, with their accurate numbers, positions, player attributes,
pretty much everything except the players’ actual names. Luckily,
you can change the names of players, and every year hundreds of
users sit there and change all of the names of all the players to their
real life counterparts. Then people like me pay for the “updated
rosters” (back in the day) or simply download them for free.
And everybody is happy. Except, of course, the college athletes.
Especially the college athletes that have only a limited chance of
going pro but are very popular college athletes and want to get a
little more than a diploma out of it.

18
550. In 2009, EA went even further, developing and launching on its website its
19
20

“TeamBuilder” page that lets users create and upload profiles of current and former NCAA

21

football players to be incorporated into EA’s games. On the page, EA states “Create Your

22

School On-Line” and “Play with Your School on Your Console” and “Share your teams –

23

upload your creations to a shared library for everyone to enjoy.” The page further features

24

official logos of CLC and the NCAA and links to those entities’ webpages.

25

551. The profiles expressly state the player’s name, number, position, year in school,

26
height, weight, have an avatar of a player reflecting racial characteristics, and have fully
27
28

developed player profiles featuring ratings in dozens of categories. For example, on May 12,
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 176 -

1

2011, a full profile was on EA’s website for current Stanford quarterback Andrew Luck as a

2

part of the 2009 Stanford Cardinal team, as well as a full profile for former player Auburn

3

quarterback Cam Newton as a part of the Auburn Tigers 2010 team.

4
552. In its “Terms of Service” on the site, EA states that “ EA respects the intellectual
5
6

property rights of others. You must have the legal right to upload Content to EA Services. You

7

may not upload or post any Content on EA Services that is protected by copyright, trademark or

8

other intellectual property rights unless (i) you are the owner of all of those rights; or (ii) you

9

have the prior written consent of the owner(s) of those rights to make such use of that Content.

10
11

EA may, without prior notice to you and in its sole judgment, remove Content that may
infringe the intellectual property rights of a third party. If you are a repeat infringer of EA's or a

12
13
14
15
16
17
18

third party's intellectual property rights, EA may terminate your Account without notice to
you.” On information and belief, EA has not invoked any of these provisions with respect to
the use of current and former collegiate players on its website.
553. EA further states that “[i]n exchange for EA enabling your contribution of
Content, when you contribute Content to an EA Service, you expressly grant to EA a nonexclusive, perpetual, worldwide, complete and irrevocable right to quote, re-post, use,

19
reproduce, modify, create derivative works from, syndicate, license, print, sublicense, distribute,
20
21

transmit, broadcast, and otherwise communicate, and publicly display and perform the Content,

22

or any portion thereof, in any manner or form and in any medium or forum, whether now

23

known or hereafter devised, without notice, payment or attribution of any kind to you or any

24

third party.” EA thus expressly takes the rights to this content on its website.

25
26

554. EA has continued to seek to further collude with the NCAA to deprive current and
former student-athletes of rights with respect to EA’s video-games. In 2010, the NCAA’s

27
Amateurism Cabinet presented Proposal 2010-26, which would have modified NCAA Bylaw
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 177 -

1

12.5.1.1 to formalize the ability of commercial entities to use student-athletes’ names and

2

likenesses. EA was a big supporter of this proposal and, on information and belief, was

3

instrumental in getting the NCAA to present it for consideration. Minutes of the NCAA

4
Division I Student-Athlete Advisory Committee meeting held in Indianapolis, Indiana on
5
6

November 19-21, 2010, at which Proposal 2010-26 was discussed, indicate that

7

“[r]epresentatives from EA Sports gave a presentation to the committee regarding the NCAA

8

College Football video game and answered questions regarding the use of student-athletes'

9

likeness in the game.” According to EA’s interrogatory responses in this action, Joel Linzer,

10
11

EA’s Executive Vice-President for Business and Legal Affairs, and Todd Sitrin, EA’s Group
Vice-President of Marketing, attended this meeting. After Antitrust Plaintiffs indicated that they

12
13
14

would move to enjoin the implementation of Proposal 2010-26, the NCAA shelved it, at least
for the present.

15

555. Other indicia of conspiratorial activity involving the NCAA, CLC and EA and

16

marked departures from other practices include the fact that neither the NCAA nor CLC has

17

brought any legal action, or encouraged any member school or CLC client, or current or former

18

student-athlete, to stop EA’s use of player images and likenesses in EA’s NCAA-themed

19
games. The NCAA and CLC, on behalf of CLC’s school clients, aggressively enforce
20
21
22

intellectual property and contractual rights in a myriad of other contexts.
556. No valid rights from Antitrust Class members have been obtained by the NCAA,

23

its members, or its licenses for the use of their images, likenesses, and/or names in video games,

24

and any purported transfer or usage of student-athletes’ rights relating to this usage is the

25

product of the anticompetitive agreements described herein.

26

i. Rebroadcasts of Classic Games.

27
557. In 1997, the ESPN cable television network acquired the Classic Sports Network
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 178 -

1

for an amount reported to be between $175 and $200 million, and renamed it “ESPN Classic.”

2

ESPN Classic replays games from a variety of sports and seasons that are considered to be

3

“classics” in some way. ESPN describes ESPN Classic as follows:

4
5
6
7
8
9
10
11

ESPN Classic is a 24-hour, all-sports network devoted to
telecasting the greatest games, stories, heroes and memories in the
history of sports. ESPN Classic presents programming from the
NFL, NBA, MLB, NHL, NASCAR, boxing (including the ESPN
Big Fights Library), tennis, golf, college football and basketball,
Olympics and others. ESPN Classic is a wholly owned subsidiary
of ESPN, The Worldwide Leader in Sports.
558. As indicated above ESPN Classic has acquired the rights to rebroadcast various
“classic” college basketball and football games, and does so. These rebroadcasts feature and
utilize the images of Damages Class Members.

12
13
14

559. Various conferences and universities also run their own networks that replay
classic games. For example, the Big Ten Network states the following on its website:

15

Big Ten's Greatest Games

16

They are epic sports battles that are etched in hearts and minds of
Big Ten fans across the nation. They are unforgettable moments
that stir passion and pride. They are echoes of both triumphant
victories and devastating defeats.

17
18
19
20
21
22
23
24
25
26
27
28

Throughout the winter, college football fans will have the
opportunity to relive the best of those match-ups on the Big Ten
Network series, "The Big Ten's Greatest Games." The Big Ten
Network will also televise classic games throughout the basketball
season. Use the list to the right to find full season listings.
Our "Greatest Games" schedule features five Big Ten national
championships, including Indiana's title games in 1981 and 1987,
Michigan's championship game in 1989 and Michigan State's titles
in 1979 and 2000. Additional games from the NCAA Elite Eight
and Sweet 16 will air throughout the winter, as will memorable
regular season classics.
Northwestern's 2005 overtime victory against Iowa premiered on
Dec. 1 and the Illinois' 2004 ACC-Big Ten Challenge win against
Wake Forest debuted on Dec. 8. Both games will re-air several
times during the course of the season.
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 179 -

1
2
3
4

If there's a game that you want to see on "Greatest Games," use the
form below to drop us a line. Our "Greatest Games" crew wants to
hear from you!
560. The Big Ten Network’s “Season 1” of classic men’s basketball games, which was

5

broadcast in late 2007 and early 2008, featured 36 games ranging from 1983 to 2007 featuring

6

the following teams: Connecticut, Duke, Georgetown, Georgia Tech, Illinois, Indiana, Iowa,

7

Kentucky, LSU, Michigan, Michigan State, Minnesota, North Carolina, Northwestern, Ohio

8
State, Penn State, Purdue, Texas, and Wisconsin.
9
10

561. It appears that by the next season, The Big Ten Network had reached an agreement

11

to show NCAA tournament games. Whereas the first season’s offerings did not appear to be

12

NCAA tournament games, nearly all games shown in the next season were from the NCAA

13

tournament. The Big Ten Network’s “Season 2” of classic men’s basketball games, which was

14
15

broadcast in late 2008 through March of 2009, featured 16 games ranging from 1979 to 2008
featuring the following teams: Arizona, Florida, Illinois, Indiana, Indiana State, Iowa, Kansas,

16
17
18

Kentucky, Maryland, Michigan State, Minnesota, North Carolina, Northwestern, Ohio State,
Oklahoma, Purdue, Seton Hall, St. John’s University, Syracuse, Wake Forest, and Wisconsin.

19

The games included NCAA tournament championship games, and games from the NCAA

20

tournament’s “Sweet Sixteen,” “Elite Eight” and “Final Four” rounds.

21
22

562. The Big Ten Network had similar numbers of offerings for men’s football games.
In Season 1, it rebroadcast approximately 30 different games ranging from the 1990 to 2006

23
seasons, and in Season 2 it rebroadcast a similar number of games ranging from the 1981 to
24
25
26
27
28

2006 seasons.
563. As another example, the Brigham Young University cable television network,
available via cable systems around the country such as the Comcast network in the San
Francisco Bay Area, runs the “BYU Television” cable television network, on which it
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 180 -

1

rebroadcasts various games. For example, on May 30, 2009, the network was scheduled to run

2

a “BYU Classic Sports” presentation of a 2002 men’s basketball game between BYU and Utah,

3

followed by a 1988 game between BYU and Hawaii. Later that day, the network was scheduled

4
to rebroadcast a 1986 football game between BYU and the University of New Mexico.
5
6

564. No valid rights from Antitrust Damages Class members have been obtained by the

7

NCAA, its members, or its licensees for the use of their images, likenesses and/or names in

8

rebroadcasts of “classic” games , and any purported transfer of former student-athletes’ rights

9

relating to this usage is the product of the anticompetitive agreements described herein.

10
11

j. Jerseys, T-Shirts and Other Apparel.
565. Defendants and their co-conspirators, through the release process described herein,

12
13
14

also have allowed former players’ indicia of identity, namely, their uniform numbers and
names, to be utilized in connection with sales of replica and actual jerseys and other apparel

15

offered for sale. In addition to featuring sometimes current players, replica jerseys also are sold

16

featuring the numbers and names of former players.

17
18

566. For example, the University of Connecticut, through its online athletics store, sells
a replica basketball jersey bearing the number 4. This number clearly corresponds to former

19
star player Ben Gordon, who played for three years at UConn before turning professional in
20
21
22
23

2004. Indeed, many other websites sell similar jerseys and specifically reference Mr. Gordon
and his number 4.
567. The NCAA’s President, Myles Brand, was referenced in a 2004 article in The New

24

York Times in connection with jersey sales featuring current players as follows: “Even Myles

25

Brand, the President of the N.C.A.A. said he had ethical concerns about the marketing of star

26

players’ numbers, although he ruled out permitting athletes to make money from the sale of

27
replicas of their uniforms.” The article further stated that “[p]layers’ number are a meaningful
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 181 -

1
2
3

substitute for their names . . .”
568. The NCAA, in fact, has examined, and blessed, its members’ use of players’
uniform numbers for replica jersey sales. As a 2008 article on CNBC.com stated, “For years,

4
the NCAA has turned a blind eye to the fact that its member institutions give the [apparel
5
6

companies] of the world specific numbers that match up to their best players. The schools

7

know the reality of the situation, which is that numbers that correspond to the stars will sell

8

better than a generic No. 1. And just because the NCAA forbids the selling of the jerseys with

9

the names on the back doesn't mean you can cut the player out of the equation. Everyone

10
11

knows what's going on.”
569. The New York Times further reported that “[j]erseys like these are also sold around

12
13
14

the country in Wal-Mart, Sears and other stores under agreements with manufacturers and the
[Defendant] Collegiate Licensing Company, which oversees licensing, marketing and

15

distribution of royalties for the N.C.A.A. and nearly 200 universities, said Derek Eiler, the

16

company’s chief operating officer.”

17
18

570. The New York Times further reported in 2004 that “[w]hile sales figures are hard to
acquire, N.C.A.A. officials estimated that Division I universities that sell the most T-shirts and

19
other team apparel each generate about $6 million to $7 million a year in sales. About 6 percent
20
21
22

of those revenues, or perhaps $360,000, involves the sale of replica jerseys.”
571. In addition to replica jersey sales, dozens of the NCAA’s members sell the actual

23

jerseys worn by former players to the operators of websites such as www.collegejersey.com,

24

which then offers the jerseys for sale, typically for prices ranging from several hundred dollars

25

up to $1000 or more. These jerseys often bear the players’ names on the back. For example, on

26

June 16, 2009, there were more than 30 former UCLA football players’ jerseys offered for sale

27
that bear players’ names on the back. Additional information is supplied regarding the year the
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 182 -

1

jersey was worn, and often additional details on the particular player, such as the position that

2

he played. In the UCLA example, the players played between 1995 and 2004.

3

572. Additionally, certain schools sell “game worn” uniforms directly. For example, as

4
of June 16, 2009, Ohio State University was offering for sale via its online memorabilia store
5
6

approximately 30 “game worn” jerseys from the 2005 season bearing various uniform numbers.

7

Each one is offered at $200. The complete player roster from that season, which lists player

8

names and uniform numbers, is readily available on-line from websites such as scout.com.

9
10
11

573. No valid rights from Antitrust Damages Class members have been obtained by the
NCAA, its members, or its licensees for the use of their images, likenesses and/or names in
apparel sales, and any purported transfer of former student-athletes’ rights relating to this usage

12
13
14
15

is the product of the anticompetitive agreements described herein.
D.

The Reality for Players After College.

574. There is a vast amount of information available that documents the realities of

16

student-athlete life in the Division I revenue producing sports, i.e., men’s basketball and

17

football. Those athletes typically do not enjoy an academic experience anything like that of

18

“regular” students. Such athletes frequently are required by the university to devote more than

19

40 hours a week to their sports, can have enormous travel demands placed upon them, are often

20
spoon-fed a curriculum of athlete-friendly classes that are nothing like those experienced by the
21
22

general student population, and their graduation rates frequently are abysmal.

23

575. Two Michigan State University law professors, Robert A. McCormick and Amy

24

Christian McCormick, recently conducted a study regarding Division I athletes in the revenue

25

generating sports, and concluded that those athletes “daily burdens and obligations not only

26
27

meet the legal standard of employee, but far exceed the burdens and obligations of most
university employees.”

28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 183 -

1
2
3

576. After they spend their college years juggling athletic and academic requirements,
many student-athletes wind up substantially in debt because their scholarships did not fully
cover the basic necessities of life. A recent study illustrated that so-called “full scholarships”

4
can leave student-athletes with as much as $30,000 in normal student expenses uncovered over
5
6
7

the course of their collegiate athletic careers.
577. Moreover, many former student-athletes have continuing medical bills and

8

treatments resulting from their participation in intercollegiate athletics. These medical

9

treatments and attendant financial responsibility can continue long after the conclusion of a

10
11

student-athlete’s collegiate sports career. On July 16, 2009, The New York Times, in an article
titled “College Athletes Stuck With the Bill After Injuries,” reported the following:

12
13
14
15

After years of concerns about inadequate health coverage for
college athletes, the National Collegiate Athletic Association
started requiring universities to make sure their athletes had
insurance before competing.

19

But the association never established clear standards for that
coverage when it introduced the rule four years ago, leaving
colleges to decide for themselves. While some colleges accept
considerable responsibility for medical claims, many others
assume almost none, according to a review of public documents
from a cross section of universities and interviews with current and
former athletes, trainers, administrators and N.C.A.A. officials.

20

...

21

Other athletes discover their financial problems long after their
bodies have healed. An Ohio University football player,
temporarily paralyzed during a workout, learned that he still owed
$1,800 in unpaid medical bills when he went to buy a car six years
after his injury.

16
17
18

22
23
24
25
26
27

Many students, whether athletes or not, have medical insurance
through their parents. But these plans often exclude varsity sports
injuries, limit out-of-state treatment or do not cover much of the
bill. Some colleges buy secondary policies to fill the gaps,
although even these plans have holes. And only players hurt badly
enough to require extensive care can turn to the N.C.A.A. for

28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 184 -

1

coverage. Its catastrophic insurance carries a $75,000 deductible,
which will increase to $90,000 next year.

2

...

3

Even scholarship athletes in major sports can end up in similar
situations.

4
5

Jason Whitehead, a former football player at Ohio University, was
so badly injured during a workout in 2001 that he had to be
airlifted to a hospital. He was temporarily paralyzed.

6
7

“The next day, when I woke up, the doctor came in and informed
me that surgery went well, but this was a career-ending injury,” he
said. “You’re a 19-year-old kid. It took awhile to sink in.”

8
9

He said he took the bills not covered by his father’s insurance to
the Ohio University trainers. His father’s insurance and Ohio
University refused to pay the claims.

10
11
12

Whitehead lost his scholarship one academic year after being
medically disqualified by a team physician, per university policy.
University officials declined to comment on his situation, citing
their commitment to student privacy. They also said they would
not pay bills for procedures that occurred more than a year earlier.

13
14
15

But Whitehead, now a 28-year-old district manager for Frito Lay
in the Cleveland area, said he discovered he owed roughly $1,800
in unpaid medical bills while reviewing paperwork to buy his first
car about six years after his injury.

16
17
18

“The coach says: ‘You’re on full scholarship. If you ever get hurt,
we’ll make sure to take care of you,’ ” he said. “There’s a lot of us
out there that get used.”

19
20

578. The overwhelming majority of players do not turn professional, and those that do
21
22

turn professional typically do not remain professionals for very long. Those that do become

23

professionals often emerge from universities totally unprepared to manage their finances, and

24

thus frequently fall prey to financial predators, as a recent expose in Sports Illustrated magazine

25

documented.

26
27

579. The rare player who reaches the top professional ranks in basketball and is drafted
at least likely will have a guaranteed contract for a few years; in the National Football League,

28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 185 -

1

the rare player who reaches the professional ranks does not have a guaranteed contract and can

2

be cut from the team at any time due to injury or non-performance.

3

580. Whatever the realities of student-athlete life may be, the NCAA is not entitled to

4
abridge those student-athletes’ economic rights in perpetuity.
5
ANTITRUST ALLEGATIONS

6
7

581. Defendants’ contract, combination, and conspiracy described herein consisted of a

8

continuing horizontal and vertical agreement, understanding, and concert of action among the

9

Defendants and their co-conspirators, the substantial terms of which were to artificially fix,

10
11

depress, maintain, and/or stabilize prices received by Antitrust Plaintiffs and Antitrust Class
members for use and sale of their images, likenesses and/or names at zero dollars in the United

12
13
14
15
16
17
18

States, its territories and possessions.
582. Defendants’ and their co-conspirators’ actions also can be understood as a group
boycott/ refusal to deal.
583. Defendants CLC, EA and various co-conspirators facilitated the contract,
combination and conspiracy described herein, and benefited financially from its operation.
584. In formulating and effectuating the contract, combination, or conspiracy,

19
Defendants and their co-conspirators did those things that they unlawfully combined and
20
21
22
23
24
25

conspired to do, including, among other things:
a. agreeing to artificially fix, depress, maintain, and/or stabilize prices paid to
Antitrust Plaintiffs and Antitrust Class members for use and sale of their
images, likenesses and/or names;
b. agreeing to limit output of the use or sale of the images, likenesses and/or
names of Antitrust Plaintiffs and Antitrust Class Members;

27

c. agreeing to boycott and refuse to deal with Antitrust Plaintiffs and Antitrust
Class members regarding compensation for the use and sale of their images,
likenesses and/or names; and

28

d. implementing and monitoring the conspiracy among cartel members.

26

FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 186 -

1
2
3

585. The activities described above have been engaged in by Defendants and their coconspirators for the purpose of effectuating the unlawful agreement to fix, depress, maintain
and/or stabilize prices paid to Antitrust Plaintiffs and Antitrust Class members for the sale and

4
use of their images, likenesses and/or names.
5
6

586. Defendants’ actions constitute an unreasonable restraint of trade.

7
8

KELLER RIGHT OF PUBLICITY CAUSES OF ACTION

9

FIRST CAUSE OF ACTION

10

(Deprivation of Rights of Publicity, Violation of Indiana Code § 32-36-1-1)
(As Against Electronic Arts)

11

587. Right of Publicity Plaintiffs incorporate by reference the allegations in the above
12
13
14

paragraphs as if fully set forth herein.
588. Right of Publicity Plaintiffs and class members’ names, voices, signatures,

15

photographs, images, likenesses, distinctive appearances, gestures, and mannerisms have

16

commercial value. For commercial purposes, EA has used and continues to use Right of

17
18

Publicity Plaintiffs’ and class members’ names, images, likenesses and distinctive appearances
without their consent in connection with and for the purposes of advertising, selling and

19
20
21
22

soliciting purchases of its videogames, including its NCAA Football, NCAA Basketball and
NCAA March Madness franchises.
589. Specifically, EA has used Right of Publicity Plaintiffs’ names, images, likenesses

23

and distinctive appearances by incorporating such items into its virtual players in its NCAA

24

Football videogames that are sold in Indiana. It has used these items in creating and crafting its

25

games by gathering information in Indiana that is used to model the content of its NCAA-

26
related games. The use of Right of Publicity Plaintiffs’ rights of publicity increases the realism
27
28

of the games by including, among other things, literal depictions of Plaintiffs and class
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 187 -

1
2
3

members in the game. This allows EA to increase sales and profits.
590. EA never received Right of Publicity Plaintiffs’ or class members’ consent, written
or otherwise, to use their likenesses, images, names, or other distinctive appearances.

4
591. EA’s actions are pursuant to, and in furtherance of, its unlawful conspiracy with
5
6
7
8
9
10
11

the NCAA and CLC to misappropriate Right of Publicity Plaintiffs’ and class members’ names,
images, likenesses and distinctive appearances for commercial purposes.
592. Defendants have willfully and intentionally used and continued to use Right of
Publicity Plaintiffs’ and class members’ rights of publicity.
593. Defendants undertook actions in furtherance of their conspiracy within the State of
Indiana. Specifically, Defendant NCAA is located in Indiana and all conduct of the NCAA

12
13
14
15
16
17
18

alleged herein took place or was ratified in Indiana. In addition, NCAA has hosted meetings in
Indiana, contracted in Indiana, and NCAA’s decisions and approvals for the use of player
names and likenesses arose in and emanated from Indiana.
594. Likewise, EA has solicited, advertised, and sold its games in Indiana directly to
Indiana consumers, and developed information in Indiana to be used in its games’ development.
Upon information and belief, EAs has sold thousands of games to Indiana consumers during the

19
class periods via its website, and has sold tens of thousands of games through retailers.
20
21
22
23
24
25
26
27

595. As a result of Electronic Arts’ conduct, Plaintiffs have been injured.
SECOND CAUSE OF ACTION
(Deprivation of Rights of Publicity Violation of California Civil Code § 3344)
(As Against EA)
596. Right of Publicity Plaintiffs incorporate by reference the allegations in the above
paragraphs as if fully set forth herein.
597. EA has knowingly and intentionally utilized and continue to utilize the names and
likenesses of Right of Publicity Plaintiffs and class members in videogames produced by EA

28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 188 -

1

without the consent of Right of Publicity Plaintiffs and class members. This conduct has

2

occurred in and emanated from California, specifically EA’s headquarters.

3

598. EA has used and continues to use Right of Publicity Plaintiffs’ and class members’

4
names and likenesses for the purposes of advertising, selling and soliciting purchases of
5
6

Electronic Arts’ videogames, including its NCAA Football, NCAA Basketball and NCAA

7

March Madness franchises. Most decisions and policy relating to this conduct has occurred in

8

and emanated from California, specifically Electronic Arts’ headquarters.

9
10

599. As a result of EA’s misappropriation of their publicity rights, Right of Publicity
Plaintiffs and class members have been injured.

11
12
13
14

THIRD CAUSE OF ACTION
(Violation of Rights of Publicity California Common Law)
(As Against EA)
600. Right of Publicity Plaintiffs incorporate by reference the allegations in the above

15
paragraphs as if fully set forth herein.
16
17

601. Pursuant to its unlawful conspiracy, EA has utilized and continues to utilize the

18

names, likenesses and identities of Plaintiffs and class members in Electronic Arts’ videogames

19

without their consent and for their own commercial advantage.

20
21

602. As a result of EA’s misappropriation of their publicity rights Right of Publicity
Plaintiffs and class members have been injured.

22
FOURTH CAUSE OF ACTION
(Civil Conspiracy)
(As Against All Defendants)

23
24
25
26
27

603. Right of Publicity Plaintiffs incorporate by reference the allegations in the above
paragraphs as if fully set forth herein.
604. On information and belief, Defendants, and each of them, have conspired and

28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 189 -

1

combined with each other, and possibly with third parties, to use class members’ likenesses

2

without permission, and have achieved a meeting of the minds, through either express or tacit

3

agreement, on an object or course of action of the conspiracy, including depriving class

4
members of their right to protect their names, likenesses and rights to publicity and their
5
6

contractual, property rights.
605. Defendants have formed and operated a civil conspiracy with each other,

7
8

performing as a part of the conspiracy numerous overt acts in furtherance of the common

9

design, including one or more unlawful acts which were performed to accomplish a lawful or

10
11

unlawful goal, or one or more lawful acts which were performed to accomplish an unlawful
goal.

12
13
14

606. As a result of the conduct of Defendants and the conspiracy, Right of Publicity
Plaintiffs and class members have been damaged as described above.

15

FIFTH CAUSE OF ACTION

16

(Violation of the Unfair Competition Act,

17
18
19
20

California Business & Professions Code § 17200, et seq.)
(As Against EA)
607. Right of Publicity Plaintiffs incorporate by reference the allegations in the above
paragraphs as if fully set forth herein.

21

608. EA’s conduct and unlawful conspiracy, as alleged above, constituted and

22

constitutes unfair, unlawful and fraudulent business practices in violation of Section 17200, et

23

seq. of the California Business and Professions Code. The conduct is unfair, unlawful, and

24
fraudulent because among other things it violates California Civil Code § 3344.
25
26

609. EA’s conduct has further caused and is causing damage and irreparable injury to

27

Plaintiffs and class members. Plaintiffs and class members are accordingly entitled to

28

disgorgement of EA’s profits and injunctive relief, plus interest and attorneys’ fees, pursuant to
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 190 -

1

California Code of Civil Procedure § 1021.5 and request the following injunctive relief: (a) that

2

EA be ordered to cease and desist from continuing to unlawfully utilize Right of Publicity

3

Plaintiffs and class members names and likenesses and (b) that EA disgorge all its profits

4
obtained from the utilization of Right of Publicity Plaintiffs and class members names and
5
6

likenesses.

7

SIXTH CAUSE OF ACTION

8

(Breach of Contract)
(As Against NCAA)

9
10
11
12
13
14

610. Defendant NCAA entered into uniform or substantially similar contracts (which
are identical in material terms) with class members. See Exhibit A.
611. Right of Publicity Plaintiffs and class members are required to enter into the
contract attached as Exhibit A. The contract prohibits the student-athlete from using his name,
picture or likeness for commercial purposes, but authorizes and licenses the NCAA, and certain

15
authorized representatives, to use the student-athletes’ name or picture to promote NCAA
16
17
18

championships or other NCAA events, activities or programs.
612. Likewise, the contract prohibits the NCAA from using Right of Publicity

19

Plaintiffs’ and class members’ names, pictures and likeness for commercial purposes, but grants

20

a limited license to the NCAA, and certain authorized representatives, to use the student-

21
22

athletes’ name or picture to promote NCAA championships or other NCAA events, activities or
programs.

23
24
25
26
27

613. In consideration for the above disclosures, waivers, affirmations and limited
license, the NCAA agrees to grant players eligibility to participate in Division I athletics.
614. EA is not an authorized NCAA representative under the contract, and in fact EA is
contractually prohibited from using player names and likenesses.

28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 191 -

1
2
3

615. The NCAA videogames produced by EA do not promote NCAA events, activities,
programs or championships, as contemplated by the contract.
616. The NCAA videogames produced by EA are for commercial purposes only.

4
617. The NCAA sanctions, facilitates and profits from EA’s commercial use of
5
6
7
8
9
10
11

student-athletes’ names, pictures and likenesses despite contractual obligations prohibiting such
conduct.
618. Additionally, the contracts impose specified duties on Defendant NCAA and
require it to fulfill certain obligations to class members, including a duty to deal fairly and in
good faith with Plaintiffs and class members.
619. In furtherance of the unlawful conspiracy alleged above and with the knowledge

12
13
14

and consent of CLC and EA, the NCAA breached its contracts with class members by, among
other things, (1) seeking to accomplish indirectly through its relationship and agreements with

15

Defendant Electronic Arts that which it could not do directly (profit from class members’

16

likenesses); (2) failing to insure and protect class members’ rights of when it established

17

contractual relationships with the other Defendants; (3) permitting the other Defendants to use

18

Right of Publicity Plaintiffs and class members’ names and likenesses – such as when it

19
expressly permitted EA to utilize players’ names and likenesses; (4) purposely ignoring that the
20
21

other Defendants were using class members’ likenesses, despite the fact that class members

22

only gave Defendant NCAA limited publicity rights and for NCAA events; and (5) not abiding

23

by the terms of its own contracts.

24
25

620. As a proximate result of Defendants’ conduct, Right of Publicity Plaintiff and class
members have been injured.

26
27
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 192 -

1

SEVENTH CAUSE OF ACTION

2

(Unjust Enrichment)
(As Against EA and CLC)

3

621. Right of Publicity Plaintiffs incorporate by reference the allegations in the above
4
5
6

paragraphs as if fully set forth herein.
622. To the detriment of Right of Publicity Plaintiffs and class members, Defendants

7

EA and CLC have been and continue to be unjustly enriched as a result of the unlawful and/or

8

wrongful conduct alleged herein. EA and CLC have been unjustly benefited through the sale of

9
10

videogames that utilize the names and likenesses of Plaintiffs and Class Members.
623. Between Defendants EA/CLC and Right of Publicity Plaintiffs/class members, it

11
12
13

would be unjust for Electronic Arts and CLC to retain the benefits attained by their wrongful
actions. Accordingly, Right of Publicity Plaintiffs and class members seek full restitution of

14

EA’s and CLC’s enrichment, benefits and ill-gotten gains acquired as a result of the unlawful

15

and/or wrongful conduct alleged herein.

16
17

ANTITRUST CASE CAUSES OF ACTION

18
19

FIRST CLAIM FOR RELIEF

20

Violation of Section 1 of the Sherman Act – 15 U.S.C. § 1

21

Unreasonable Restraint of Trade

22

(Against All Defendants)

23
24
25
26
27

624. Plaintiffs incorporate and re-allege each allegation set forth in the preceding
paragraphs dealing with the claims of the Antitrust Class.
625. Defendants and their co-conspirators, by and through Defendants’ and coconspirators’ officers, directors, employees, agents, or other representatives, have entered into a

28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 193 -

1

continuing horizontal and vertical contract, combination, and conspiracy in restraint of trade to

2

artificially depress, fix, maintain, and/or stabilize the prices paid (specifically, depressing,

3

fixing, maintaining and stabilizing them at zero dollars) to Antitrust Class members for the use

4
of, and to limit supply for, licensing and sale of their images, likenesses and/or names in the
5
6

United States and its territories and possessions, in violation of Section 1 of the Sherman Act

7

(15 U.S.C. § 1). If Plaintiffs and Antitrust Class members were free to license and sell the rights

8

to their images, likenesses and/or names, many more licenses would be sold. This output

9

restriction also has the effect of raising the prices charged by the NCAA and CLC for licensing

10
11

rights.
626. Defendants’ unlawful conduct deprived Antitrust Plaintiffs and Class members of

12
13
14

compensation for the use of their names, images, and likenesses—property rights with
economic value. This unreasonable restraint on competition has artificially limited supply and

15

depressed prices paid by Defendants and their co-conspirators to Antitrust Plaintiffs and the

16

members of the Antitrust Class for use of their images, likenesses and/or names after cessation

17

of participation in intercollegiate sports.

18

627. Antitrust Plaintiffs and the members of the Antitrust Class received less than they

19
otherwise would have received for the use of their images, likenesses and/or names in a
20
21
22

competitive marketplace, were thus damaged, and seek to recover for those damages.
628. On information and belief, the NCAA always conditioned eligibility to play

23

NCAA Division I college or university men’s basketball or NCAA Football Bowl Subdivision

24

(formerly known as Division I-A until 2006) men’s football on the perpetual relinquishment to

25

the NCAA and its members by the student-athlete of all rights to his image, likeness and/or

26

name associated with the playing of those sports.

27
629. Defendants and their co-conspirators’ total abridgment of compensation rights for
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 194 -

1

current and former student-athletes are not connected to any legitimate non-commercial goal.

2

Defendants’ actions are solely to enhance revenue for themselves and their for-profit business

3

partners, by cutting costs, i.e., eliminating the need to pay any compensation for the continuing

4
commercial exploitation of their images, likenesses and/or names. Defendants’ actions have no
5
6
7

relationship to any alleged goal of “amateurism,” or pro-educational purposes,. Thus, the
NCAA’s actions directly regulate a commercial market and therefore are illegal.
630. Defendant CLC has facilitated this illegal scheme, and has financially benefited

8
9

from it.

10
11

631. Defendant EA has participated in this illegal scheme, and has financially benefited
from it.

12
13
14

632. As a direct and proximate result of Defendants’ scheme, Antitrust Plaintiffs and
the members of the Antitrust Class have been injured and financially damaged in amounts

15

which are presently undetermined. Antitrust Plaintiffs’ and Antitrust Class members’ injuries

16

consist of receiving lower prices for use of their images than they would have received absent

17

Defendants’ conduct. Antitrust Plaintiffs’ and Antitrust Class members’ injuries are of the type

18

the antitrust laws were designed to prevent and flow from that which makes Defendants’

19
conduct unlawful.
20
21

633. Defendants’ and their co-conspirators’ have collectively conspired to illegally limit

22

and depress the compensation of current and former student-athletes for continued use of their

23

images to zero. This anticompetitive and illegal scheme has unreasonably restrained trade.

24

634. The anticompetitive effects of Defendants’ scheme substantially outweigh any

25
26

alleged procompetitive effects that may be offered by Defendants, including that their collusive
conduct is shielded by its concept of “amateurism.” Reasonable and less restrictive alternatives

27
are available to Defendants’ current anticompetitive practices.
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 195 -

1

635. Antitrust Plaintiffs and Antitrust Class members are entitled to a declaratory

2

judgment declaring as void and unenforceable all forms that purport to grant, transfer, or

3

convey the rights of former student-athletes in the use of their images.

4
636. Antitrust Plaintiffs and the Antitrust Class are entitled to a permanent injunction
5
6

that terminates the ongoing violations alleged in this Complaint.

7

SECOND CLAIM FOR RELIEF

8

Violation of Section 1 of the Sherman Act – 15 U.S.C. § 1

9

Unreasonable Restraint of Trade – Group Boycott / Refusal to Deal

10

(Against All Defendants)

11
12
13
14

637. Antitrust Plaintiffs incorporate and re-allege each allegation set forth in the
preceding paragraphs dealing with the claims of the Antitrust Class.
638. Defendants and their co-conspirators, by and through Defendants’ and co-

15

conspirators’ officers, directors, employees, agents, or other representatives, entered into a

16

continuing horizontal and vertical contract, combination, and conspiracy in restraint of trade to

17

effectuate a horizontal group boycott of Antitrust Class Members. Defendants’ group boycott /

18
refusal to deal encompasses Defendants’ concerted refusal to compensate Antitrust Class
19
20

Members for use of their images, likenesses and/or names and to otherwise concertedly act to

21

prevent Class Members from being compensated for use of their images, likenesses and/or

22

names, in the United States and its territories and possessions, in violation of Section 1 of the

23

Sherman Act (15 U.S.C. § 1).

24
25

639. Defendants’ group boycott / refusal to deal includes Defendants’ concerted action
to require all current student-athletes to sign forms each year that purport to require each of

26
27
28

them to relinquish all rights in perpetuity for use of their images, likenesses and/or names. This
concerted action is in effect a refusal to deal with Antitrust Class members on future postFOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 196 -

1

competition compensation rights issues, and forecloses them from access to the market.

2

Defendants use the eligibility rules as a threat of a boycott to force all student-athletes to sign

3

the forms.

4
640. Defendants’ group boycott / refusal to deal also includes Defendants’ ongoing
5
6

concerted action to deny Antitrust Class Members compensation in the form of royalties for the

7

continued use of their images, likenesses and/or names for profit, including, but not limited to,

8

through restrictions in the Bylaws.

9
10
11

641. Plaintiffs and the members of the Antitrust Class received less than they otherwise
would have received for the use of their images in a competitive marketplace, were thus
damaged, and seek to recover for those damages.

12
642. On information and belief, the NCAA always conditioned eligibility to play

13
14

NCAA Division I college or university men’s basketball or NCAA Football Bowl Subdivision

15

(formerly known as Division I-A until 2006) men’s football on the perpetual relinquishment to

16

the NCAA and its members by the student-athlete of all rights to his image, likeness and/or

17

name associated with the playing of those sports.

18

643. Defendants and their co-conspirators’ total abridgment of compensation rights for

19
current and former student-athletes are not connected to any legitimate non-commercial goal.
20
21

Defendants’ actions are solely to enhance revenue for themselves and their for-profit business

22

partners, by cutting costs, i.e., eliminating the need to pay any compensation for the continuing

23

commercial exploitation of their images, likenesses and/or names. Defendants’ actions have no

24

relationship to any alleged goal of “amateurism,” or pro-educational purposes, as former

25

student-athletes by definition are no longer members of athletic teams under the NCAA’s

26

control. Thus, the NCAA’s actions directly regulate a commercial market and therefore are

27
illegal.
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 197 -

1
2
3

644. CLC has facilitated this illegal group boycott/refusal to deal, and has financially
benefited from it.
645. Defendant EA has participated in this illegal scheme, and has financially benefited

4
from it.
5
6

646. As a direct and proximate result of Defendants’ group boycott, Antitrust Plaintiffs

7

and the members of the Antitrust Class have been injured and financially damaged in amounts

8

which are presently undetermined. Antitrust Plaintiffs’ and Antitrust Class members’ injuries

9

consist of denial of compensation for use of their images, likenesses and/or names. Antitrust

10
11

Plaintiffs’ and Antitrust Class members’ injuries are of the type the antitrust laws were designed
to prevent and flow from that which makes Defendants’ conduct unlawful.

12
13
14
15
16
17
18

647. Defendants’ and their co-conspirators’ have collectively conspired to illegally
deny compensation to former student-athletes for continued use of their images, likenesses
and/or names in unreasonable restraint of trade.
648. The anticompetitive effects of Defendants’ group boycott substantially outweigh
any alleged pro-competitive effects that may be offered by Defendants, including that their
collusive conduct is shielded by its concept of “amateurism” or pro-educational purpose.

19
Reasonable and less restrictive alternatives are available to Defendants’ current anticompetitive
20
21
22

practices.
649. Antitrust Plaintiffs and the Antitrust Class are entitled to a permanent injunction

23

that terminates the ongoing violations alleged in this Complaint.

24

THIRD CLAIM FOR RELIEF

25

Unjust Enrichment

26

(Against All Defendants)

27

650. Antitrust Plaintiffs incorporate and re-allege each allegation set forth in the

28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 198 -

1
2
3

preceding paragraphs dealing with the claims of the Antitrust Class.
651. Defendants have been unjustly enriched as a result of the unlawful conduct
detailed herein at the expense of Antitrust Plaintiffs and Antitrust Class members. Under

4
common law principles of unjust enrichment, Defendants should not be permitted to retain the
5
6
7
8
9
10

benefits conferred upon them via their wrongful conduct, and it would be unjust for them to be
allowed to do so.
652. Antitrust Plaintiffs seek disgorgement of all Defendants’ profits resulting from the
wrongful conduct described herein and establishment of a constructive trust from which
Antitrust Plaintiffs and the Class members may seek restitution.

11

FOURTH CLAIM FOR RELIEF

12
Accounting

13

(Against All Defendants)

14
15
16
17
18

653. Antitrust Plaintiffs incorporate and re-allege each allegation set forth in the
preceding paragraphs dealing with the claims of the Antitrust Class.
654. As a result of the illegal conduct alleged herein, Defendants have received
licensing revenues in various forms and amounts, including both licensing fees and royalty

19
payments. As an alternative to their damage claims, Antitrust Plaintiffs and the members of the
20
21
22
23

Antitrust Class seek to recover a share of these revenues generated from the exploitation of their
likenesses and images, likenesses and/or names.
655. Upon a determination of liability, an accounting of the licensing revenues that

24

Defendants have wrongfully diverted to themselves and other entities will be required in order

25

to determine damages in the form of each Antitrust Plaintiff’s and Antitrust Class members’

26

share of these licensing revenues.

27
656. These licensing revenues are collected by Defendants as a result of numerous
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 199 -

1

licensing agreements among many different entities, including the Defendants and their co-

2

conspirators, and likely thousands of companies that license, manufacture, market and sell

3

various products and services bearing the likenesses and images of Antitrust Plaintiffs and the

4
members of the Antitrust Class. The structure of the many relationships between these entities
5
6
7

and terms of the various agreements governing the licensing transactions are not known to
Antitrust Plaintiffs and the members of the Antitrust Class.

8

657. Antitrust Plaintiffs and the members of the Antitrust Class cannot identify at this

9

time, among other things; (a) all of the entities that have entered into licensing and/or royalty

10
11

agreements with the Defendants and their co-conspirators, (b) how the licensing revenue due to
the Defendants and their co-conspirators from each of those agreements is calculated, (c) the

12
13
14

amount of that revenue, and (d) which members of the Antitrust Class’ images, likenesses
and/or names are associated with which agreements. Antitrust Plaintiffs seek to recover for

15

themselves and the members of the Antitrust Class a percentage of the revenue from Defendants

16

and their co-conspirators for every unlawful licensing and/or royalty agreement involving their

17

image, likenesses, and/or names; this percentage and amount is ascertainable and will be

18

decided by this Court upon a determination of liability.

19
658. The amount of licensing revenue generated from the exploitation of these images,
20
21

likenesses and/or names, including the tracing the revenue resulting from each transaction,

22

requires a full and complete accounting. This is so because determining the amounts due will

23

involve a fuller understanding and accounting of the various transactions, agreements, parties

24

and revenues involved.

25
26

659. Calculation of the amounts due to Antitrust Plaintiffs and Antitrust Class members
may well be complex. Industry accounting standards may need to be determined, understood

27
and applied, revenues may need to be traced through the various Defendants and their co28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 200 -

1

conspirators and parties involved in the transactions, and tax consequences may also be

2

considered.

3

HART/ALSTON RIGHT OF PUBLICITY CAUSES OF ACTION

4
FIRST CAUSE OF ACTION
(New Jersey Common Law Right of Publicity)
(As to EA only)

5
6
660.

7
8

above paragraphs as if fully set forth herein.

9
10
11

Plaintiffs Hart and Alston incorporate by reference all relevant allegations in the

661.

The Hart/Alston Right of Publicity class members’ names, voices, signatures,

photographs, images, likenesses, distinctive appearances, biographical data, gestures, and
mannerisms have commercial value.

12
662.

13
14

For commercial purposes, EA has used and continues to use Plaintiffs and

Hart/Alston class members’ names, images, likenesses, biographical data, and distinctive

15

appearances without their consent in connection with and for the purposes of advertising, selling,

16

and soliciting purchases of its videogames, including its NCAA Football, NCAA Basketball and

17

NCAA March Madness franchises.

18

663.

Specifically, EA has used Plaintiffs’ name, image, likeness, biographical data, and

19
distinctive appearance by incorporating such items into a virtual player in NCAA Football
20
21

videogames sold in New Jersey. Plaintiffs’ name, image, likeness, biographical data, and

22

distinctive appearance increases the realism of the games. This allows EA to increase sales and

23

profits.

24
25
26

664.

The use of Plaintiffs’ and Hart/Alston class members’ names, images, likenesses,

biographical data, and distinctive appearance is not merely incidental to the total presentation, but
rather the sum and substance of the game. EA wants the game to be as realistic as possible, with

27
as little variation from actual NCAA rosters as humanly possible. The inclusion of Plaintiffs’ and
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 201 -

1

Hart/Alston class members’ names, images, likenesses, biographical data, and distinctive

2

appearance is a necessary component of the game.

3

665.

EA never received Plaintiffs’ or Hart/Alston class members’ consent, written or

4
otherwise, to use their likenesses, images, names, or other distinctive appearances, and neither
5
6
7

Plaintiffs nor the Class consented to such use.
666.

EA has willfully and intentionally used and continued to use Plaintiffs’ and

8

Hart/Alston class members’ rights of publicity. Indeed, EA admits it uses “all the attributes and

9

jersey numbers of the players.” EA also facilitates the use of Plaintiffs and Hart/Alston class

10
11

members’ names by updating rosters on a weekly basis so that players injured or “dominating in
real life” would have their attributes “pumped up” to reflect real life success.

12
13
14

667.

EA has solicited, advertised, sold, and caused to be sold NCAA football and

basketball games in New Jersey directly to New Jersey consumers, and upon information and

15

belief, developed information in New Jersey to be used in its game’s development. Upon

16

information and belief, EA has sold thousands of games to New Jersey consumers during the

17

class period via its website, and has sold tens of thousands of games through retailers.

18

668.

As a result of EA’s conduct, Plaintiffs and Hart/Alston class members have been

19
injured.
20
SECOND CAUSE OF ACTION
(New Jersey Common Law Unjust Enrichment)
(As to EA only)

21
22
23
24
25
26

669.

Plaintiff incorporates by reference the allegations in the above paragraphs as if

fully set forth herein.
670.

To the detriment of Plaintiffs and Hart/Alston class members, EA has been and

continues to be unjustly enriched as a result of the unlawful and/or wrongful conduct alleged

27
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 202 -

1

herein. EA has been unjustly benefited through the sale of videogames that utilize the names,

2

images, and likenesses of Plaintiffs and Hart/Alston class members.

3

671.

The NCAA and CLC represent and purport to protect Plaintiffs and Hart/Alston

4
putative class members when entering into contracts with commercial entities such as EA. EA
5
6
7
8
9
10
11

contractually agrees to abide by NCAA rules, to include the rules and regulations prohibiting the
use of student-athlete names and likenesses for commercial purposes.
672.

If Plaintiffs and Hart/Alston class members knew that EA was intentionally using

student-athlete names and likenesses in contravention of NCAA rules, regulations, and
contractual obligations, they would have expected remuneration given that the NCAA and CLC
condone such acts despite rules protecting student-athletes from commercial exploitation.

12
13
14

673.

Between EA and Plaintiffs/ Hart/Alston class members, it would be unjust for EA

to retain the benefits attained by its wrongful actions. Accordingly, Plaintiffs and Hart/Alston

15

class members seek full restitution of EA’s enrichment, benefits and ill-gotten gains acquired as a

16

result of the unlawful and/or wrongful conduct alleged herein.

17
18
19

KELLER RIGHT OF PUBLICITY PRAYER FOR RELIEF
WHEREFORE, Plaintiffs prays for judgment against Defendants as follows:
A.

Certification of the action as a Class Action pursuant to the Federal Rules of Civil

20
21
22
23
24
25
26
27

Procedure, and appointment of Right of Publicity Plaintiffs as the Class Representatives and their
counsel of record as Class Counsel;
B.

A declaration by this Court that Defendants’ conduct constituted a conspiracy, and

that they are each jointly and severally liable for the conduct of or damage inflicted by any other
defendant;
C.

Actual damages, statutory damages, punitive damages, and such other relief as

provided by the statutes cited herein;

28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 203 -

1
2

D.

containing the likenesses of Plaintiffs and class members;

3

E.

6
7

10

unenforceable any contractual provisions or NCAA rules purporting to limit the rights of
Plaintiffs and class members to receive compensation for their injuries;
G.

Seizure and destruction of all copies of any videogames in the possession, custody

or control of Defendants or third parties (to the extent permitted by law ) that infringe upon Right
of Publicity Plaintiffs’ and class members’ rights of publicity;

11

H.

The costs of bringing this suit, including reasonable attorneys’ fees; and

I.

12
13

Equitable relief in enjoining future use of the names or likenesses of Right of

Publicity Plaintiffs and class members in videogames, and declaring null, void and/or

8
9

Prejudgment and post-judgment interest on such monetary relief;

F.

4
5

Disgorgement of all profits earned by Defendants from the sale of videogames

All other relief to which Plaintiffs and class members may be entitled at law or in

equity.

14
15

X. ANTITRUST PRAYER FOR RELIEF
WHEREFORE, Plaintiffs prays as follows:

16

a. That the Court determine that this action may be maintained as a

17
18

class action under Rule 23 of the Federal Rules of Civil Procedure and certify

19

the Antitrust Declaratory and Injunctive Relief Class and the Antitrust

20

Damages Class;
b. That the contract, combination, or conspiracy, and the acts done in

21
22
23

furtherance thereof by Defendants and their co-conspirators, be adjudged to
have been in violation of Section 1 of the Sherman Act (15 U.S.C. § 1);

24

c. That judgment be entered for members of the Antitrust Damages

25
26

Class against Defendants for three times the amount of damages sustained by

27

the Antitrust Damages Class as allowed by law with respect to the license or

28

sale of names, images, and/or likeness in connection with game footage or
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 204 -

1

videogames licensed or sold by Defendants, their co-conspirators, or their

2

licensees from July 21, 2005 and continuing until a final judgment in this

3

matter, together with the costs and expenses of this action, including

4
reasonable attorneys’ fees;
5
d. That Defendants be ordered to disgorge all profits earned via the

6
7

wrongful license or sale of Antitrust Damages Class members’ images,

8

likenesses and/or names in connection with game footage or videogames

9

licensed or sold by Defendants, their co-conspirators, or their licensees from

10

July 21, 2005 and continuing until a final judgment in this matter;

11

e. That Antitrust Damages Class members be awarded any available

12
13

prejudgment and post-judgment interest;
f.

14

That Antitrust Plaintiffs and Antitrust Class members are entitled to

15

Declaratory relief declaring as void and unenforceable any releases that

16

purport to have caused Antitrust Plaintiffs and Class member to relinquish

17

rights to compensation for use of their names, images, and/or likenesses, and

18

further declaring as void and unenforceable all NCAA and member license

19
agreements that purport to represent that Antitrust Class members have
20
21

released future compensation rights for the use of their images;
g. That Defendants, their affiliates, successors, transferees, assignees,

22
23

and the officers, directors, partners, agents, and employees thereof, and all

24

other persons acting or claiming to act on their behalf, be permanently enjoined

25

and restrained from, in any manner, continuing, maintaining, or renewing the

26

contract, combination, or conspiracy alleged herein, or from engaging in any

27
other contract, combination, or conspiracy having a similar purpose or effect,
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 205 -

1

and from adopting or following any practice, plan, program, or device having a

2

similar purpose or effect;

3

h. That Antitrust Plaintiffs and Antitrust Declaratory and Injunctive

4
Relief Class members are further entitled to equitable relief permanently
5
enjoining the future use of the release forms described herein, and enjoining

6
7

Defendants and their co-conspirators from selling, licensing or using current

8

and former student-athletes’ rights that Defendants do not own; and
i.

9
10

That Antitrust Plaintiffs and Antitrust Class members have such

other, further, and different relief as the case may require and the Court may

11

deem just and proper under the circumstances.

12
Y. HART/ALSTON RIGHT OF PUBLICITY PRAYER FOR RELIEF

13
14
15

WHEREFORE, Plaintiffs prays for judgment against Defendants as follows:
A.

Certification of the action as a Class Action pursuant to the Rules of Civil Procedure

16
and appointment of Plaintiffs Ryan Hart and Shawne Alston as Class Representatives and their

17
18
19

counsel of record as Class Counsel;
B.

Actual damages, compensatory damages, punitive damages and such other relief

20

permitted by law;

21

C.

22

Disgorgement of all profits earned by Defendant EA from the sale of videogames

containing the identities and likenesses of Plaintiff and Class Members;

23

D.

Prejudgment and post-judgment interest on such monetary relief;

24

F.

Equitable relief in enjoining future use of the identities or likenesses of Plaintiff and

25
26

Class Members in video games, and declaring null, void and/or unenforceable any contractual
provisions or NCAA rules purporting to limit the right of Plaintiff and Class Members to receive

27
compensation for their injuries;

28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 206 -

1

G.

Seizure and destruction of all copies of any NCAA Football and NCAA Basketball

2

video games in the possession, custody or control of Defendant EA or third parties (to the extent

3

permitted by law) that infringe upon plaintiffs and Class Members' rights of publicity;

4

H.

The costs of bringing this suit, including reasonable attorneys’ fees; and

I.

All other relief which Plaintiffs and Hart/Alston Class Members may be entitled at

5
6
7

law or in equity.

8
9
10
11

Z. KELLER RIGHT OF PUBLICITY

12

JURY DEMAND

13
Right of Publicity Plaintiffs demand a jury trial, pursuant to Federal Rule of Civil

14
15

Procedure 38(b), of all triable issues.

16

ANTITRUST JURY DEMAND

17

Antitrust Plaintiffs demand a jury trial, pursuant to Federal Rule of Civil Procedure 38(b),

18
of all triable issues.
19
AA.

20

HART/ALSTON RIGHT OF PUBLICITY
JURY DEMAND

21
// Hart/Alston Right of Publicity Plaintiffs demand a jury trial, pursuant to Federal Rule of

22
23

Civil Procedure 38(b), of all triable issues.

24
25

//

26

//

27

//

28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 207 -

1

//

2

//

3

//

4
//
5
6

Dated: May __, 2014

7

HAGENS BERMAN SOBOL SHAPIRO LLP

HAUSFELD LLP

8

/s/ Robert B. Carey__________________

/s/ Michael P. Lehmann_________________

9

Robert B. Carey (pro hac vice)
Leonard W. Aragon (pro hac vice)
11 West Jefferson
Suite 1000 Phoenix, AZ, 85003
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
[e-mail]

Michael P. Lehmann (Cal. Bar No. 77152)
Arthur N. Bailey, Jr. (Cal. Bar No. 248460)
44 Montgomery Street, 34th Floor
San Francisco, CA 94104
Tel: [phone]
Fax: [phone]
Email: [e-mail]

10
11
12
13
14

[e-mail]
Steve W. Berman WSBA #12536 (pro hac vice)
HAGENS BERMAN SOBOL SHAPIRO LLP
1918 Eighth Avenue, Suite 3300
Seattle, Washington 98101
Telephone: [phone]
Facsimile: [phone]
E-Mail: [e-mail]

20

Michael D. Hausfeld (pro hac vice)
Hilary K. Scherrer (Cal. Bar No. 209451)
Sathya S. Gosselin (Cal. Bar No. 269171)
HAUSFELD LLP
1700 K Street, NW, Suite 650
Washington, DC 20006
Tel: [phone]
Fax: [phone]
Email: [e-mail]
[e-mail]

21

Plaintiffs’ Interim Co-Lead Class Counsel

15
16
17
18
19

Plaintiffs’ Interim Co-Lead Class Counsel

22
23
24
25
26
27
28

By
______________
Keith McKenna, Esq. (pro hac vice pending)
96 Park Street
Montclair, New Jersey 07042
Telephone: [phone]
Facsimile: 973-509-3580
[e-mail]
Dennis J. Drasco, Esq. (pro hac vice pending)
Arthur M. Owens, Esq. (pro hac vice pending)
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 208 -

1

4

Lum, Drasco & Positan LLC
103 Eisenhower Pkwy
Roseland, New Jersey, 07068
Telephone: [phone]
Facsimile: 973-403-9021
[e-mail]
[e-mail]

5

Hart/Alston Class Counsel

2
3

6
7

Additional Counsel for Right of Publicity and
Related Claims:

8
9
10
11
12

Shana E. Scarlett (Cal. Bar No. 217895)
HAGENS BERMAN SOBOL SHAPIRO LLP
715 Hearst Avenue, Suite 202
Berkeley, CA 94710
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

Stuart M. Paynter (Cal. Bar. No. 226147)
THE PAYNTER LAW FIRM PLLC
1200 G Street N.W., Suite 800
Washington DC 20005
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

13
14
15
16
17
18
19
20
21
22
23

Steven A. Asher
David H. Weinstein
Mindee J. Reuben
Jeremy S. Spiegel
WEINSTEIN KITCHENOFF & ASHER LLC
1845 Walnut Street, Suite 1100
Philadelphia, Pennsylvania 19103
Telephone: [phone]
Email: [e-mail]

Howard J. Sedran
Austin B. Cohen
LEVIN FISHBEIN SEDRAN & BERMAN
Suite 500
510 Walnut Street
Philadelphia, PA 19106
Phone: [phone]
Fax: [phone]
Email: [e-mail]
[e-mail]

27

Michael Ram
Karl Olson
RAM & OLSON
555 Montgomery Street, Suite 820
San Francisco, California 94111
Phone: [phone]
Email: [e-mail]

28

Joseph C. Kohn
Robert J. LaRocca
KOHN SWIFT & GRAF, P.C.
One South Broad Street, Suite 2100
Philadelphia, Pennsylvania 19107
Phone: [phone]
Email: [e-mail]

Roberta D. Liebenberg

24
25
26

FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

Gerald J. Rodos
Jeffrey B. Gittleman
- 209 -

1
2
3
4
5
6
7
8
9

Donald L. Perelman
FINE, KAPLAN AND BLACK, R.P.C.
1835 Market Street, Suite 2800
Philadelphia, Pennsylvania 19103
Phone: [phone]
Email: [e-mail]

BARRACK RODOS & BACINE
3300 Two Commerce Square
2001 Market Street
Philadelphia, Pennsylvania 19130
Phone: [phone]
Email: [e-mail]

Howard J. Sedran
Austin B. Cohen
LEVIN, FISHBEIN, SEDRAN & BERMAN
510 Walnut Street, Suite 500
Philadelphia, Pennsylvania 19106
Phone: [phone]
Email: [e-mail]
Additional Counsel for Antitrust and Related
Claims:

10
11
12
13
14
15

Renae Steiner
Vincent J. Esades
HEINS MILLS & OLSON, P.L.C.
310 Clifton Avenue
Minneapolis, MN 55403
Tel: [phone]
Fax: [phone]
Email: [e-mail]
[e-mail]

Steven J. Greenfogel
LITE DEPALMA GREENBERG, LLC
1521 Locust Street, 7th Floor
Philadelphia, PA 19102
Tel: [phone]
Email: [e-mail]

16
17
18
19
20
21
22
23
24
25
26
27
28

William A. Isaacson (pro hac vice)
Tanya Chutkan (pro hac vice)
Jack Simms (pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
5301 Wisconsin Avenue, 8th Floor
Washington, DC 20015
Tel: [phone]
Fax: [phone]
Email: [e-mail]
[e-mail]
[e-mail]

John F. Cove, Jr. (Cal. Bar No. 212213)
BOIES, SCHILLER & FLEXNER LLP
1999 Harrison Street, Suite 900
Oakland, CA 94612
Tel: [phone]
Fax: [phone]
Email: [e-mail]

Thomas V. Girardi
Stephen Gerard Larson
GIRARDI & KEESE
1126 Wilshire Boulevlard
Los Angeles, CA 90017
213-977-0211
Fax: [phone]

Jay L. Himes
LABATON SUCHAROW LLP
140 Broadway
New York, NY 10005
Tel: [phone]
Fax: [phone]
Email: [e-mail]

FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 210 -

1
2
3
4
5
6
7

Email: [e-mail]
Daniel S. Mason (Cal. Bar No. 54065)
Jiangxiao Hou (Cal. Bar # 215256)
ZELLE HOFMANN VOELBEL & MASON
LLP
44 Montgomery Street, Suite 3400
San Francisco, CA 94104
Tel: [phone]
Fax: [phone]
Email: [e-mail]
[e-mail]

Bonny E. Sweeney (176174)
Carmen A. Medici (248417)
COUGHLIN STOIA GELLER
RUDMAN & ROBBINS LLP
655 West Broadway, Suite 1900
San Diego, CA 92101
Telephone: [phone]
619/231-7423 (fax)
Email: [e-mail]
[e-mail]

8
9
10
11
12
13
14
15
16
17

Bryan L. Clobes
Ellen Meriwether
Michael Tarringer
Tim Fraser
CAFFERTY FAUCHER LLP
1717 Arch Street, Suite 3610
Philadelphia, PA 19103
Tel: [phone]
Fax: [phone]
[e-mail]

Jonathan W. Cuneo
CUNEO GILBERT & LADUCA LLP
507 C. Street, NE
Washington, DC 20002
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Daniel Cohen
CUNEO GILBERT & LADUCA LLP
106-A S. Columbus Street
Alexandria, VA 22314
Telephone: [phone]
Facsimile: [phone]
[e-mail]

Joseph R. Saveri (State Bar No. 130064)
Kelly M. Dermody (State Bar No. 171716)
Eric B. Fastiff (State Bar No. 182260)
LIEFF, CABRASER, HEIMANN &
BERNSTEIN, LLP
275 Battery Street, 29th Floor
San Francisco, CA 94111
Telephone: [phone]
Fax: [phone]
Email: [e-mail]

18
19
20
21
22
23

Bruce L. Simon (Cal. Bar. No. 96241)
PEARSON, SIMON, WARSHAW
& PENNY, LLP
44 Montgomery Street, Suite 2450
San Francisco, CA 94104
Tel: [phone]
Fax: [phone]
Email: [e-mail]

24
25
26
27
28

Shawn D. Stuckey (MN Bar No. 0388976)
ZELLE HOFMANN VOELBEL & MASON
LLP
500 Washington Avenue South, Suite 400
Minneapolis, MN 55415
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 211 -

Brian M. Sund
Joshua G. Hauble
Jackson D. Bigham
MORRISON FENSKE & SUND, P.A.
5125 County Road 101, Suite 202

1
2
3

Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
[e-mail]

Minnetonka, MN 55345
Tel: [phone]
Fax: [phone]
Email: [e-mail]
[e-mail]

Eugene A. Spector
Jeffrey J. Corrigan
Jay S. Cohen
Jeffrey L. Spector
SPECTOR ROSEMAN KODROFF & WILLIS,
P.C.
1818 Market Street, Suite 2500
Philadelphia, Pennsylvania 19103
Tel: [phone]
Fax: [phone]
Email: [e-mail]
[e-mail]
[e-mail]
[e-mail]

Jason A. Zweig
KAPLAN FOX & KILSHEIMER
850 Third Avenue, 14th Floor
New York, NY 10022
Tel.: [phone]
Fax: [phone]
[e-mail]

Rosemary M. Rivas
Tracy H. Tien
FINKELSTEIN THOMPSON LLP
100 Bush Street, Suite 1450
San Francisco, CA 94104
Telephone: [phone]
Facsimile: 415-398-8704
Email: [e-mail]

Lee Albert
MURRAY, FRANK & SAILER LLP
275 Madison Avenue
Suite 801
New York, NY 10016
Tel: [phone]
Fax: [phone]
Email: [e-mail]

Richard M. Volin
FINKELSTEIN THOMPSON LLP
1050 30th Street, N.W.
Washington, DC 20007
Tel: [phone]
Fax: [phone]
Email: [e-mail]

Eric L. Cramer
BERGER & MONTAGUE, P.C.
1622 Locust Street
Philadelphia, PA 19103
215-875-3000
Fax: [phone]
Email: [e-mail]

4
5
6
7
8
9
10
11
12
13
14
15

Mary Jane Fait
Adam J. Levitt
WOLF HALDENSTEIN ADLER FREEMAN
& HERZ LLP
55 West Monroe Street
Suite 1111
Chicago, IL 60603
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]

16
17
18
19
20
21
22
23
24
25
26
27
28

Michael J. Flannery
CAREY & DANIS, LLC
8235 Forsyth Boulevard, Suite 1100
St. Louis, MO 63105
Tel: [phone]
Fax: [phone]
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

Joshua P. Davis
LAW OFFICES OF JOSHUA P. DAVIS
437A Valley Street
San Francisco, CA 94131
- 212 -

1

Email: [e-mail]

2

Stephen A. Weiss
SEEGER WEISS LLP
One William Street
New York, NY 10004
Tel: [phone]
Fax: [phone]
Email: [e-mail]

3
4
5
6
7
8
9
10
11
12
13
14

Tel: [phone]
Email: [e-mail]

Harris L. Pogust
POGUST BRASLOW & MILLROOD, LLC
161 Washington Street, Suite 1520
Conshohocken, PA 19428
Tel: [phone]
Fax: [phone]
Email: [e-mail]
Michael E. Criden
Kevin B. Love
CRIDEN & LOVE, P.A.
7301 S.W. 57th Court, Suite 515
South Miami, FL 33143
Tel: [phone]
Fax: [phone]
Email: [e-mail]
Email: [e-mail]

Kendall S. Zylstra
Stephen E. Connolly
FARUQI & FARUQI LLP
2600 Philmont Avenue
Suite 324
Huntingdon Valley, PA 19006
Tel: [phone]
Fax: [phone]
Email: [e-mail]
FARUQI & FARUQI, LLP
2600 Philmont Avenue
Suite 324
Huntingdon Valley, PA 19006
Tel: [phone]
Fax: [phone]
Email: [e-mail]

15
16
17
18
19
20
21

Gordon Ball
BALL & SCOTT, A PROFESSIONAL
ASSOCIATION
550 Main Avenue, Suite 750
Knoxville, TN 37902
Tel: [phone]
Fax: [phone]
Email: [e-mail]

Stanley D. Bernstein
Ronald J. Aranoff
Dana Statsky Smith
BERSTEIN LIEBHARD LLP
10 East 40th Street, 22nd Floor
New York, New York 10016
Tel: [phone]
Fax: [phone]
Email: [e-mail]
[e-mail]

Allan Steyer
D. Scott Macrae
Lucas E. Gilmore
STEYER LOWENTHAL BOODROOKAS
ALVAREZ & SMITH LLP
One California Street, Third Floor
San Francisco, CA 94111
Tel: [phone]
Fax: [phone]

Carl A. Taylor Lopez
LOPEZ & FANTEL
1510 114th Avenue
Seattle, WA 98122-4024
Tel: [phone]
Email: [e-mail]

22
23
24
25
26
27
28

FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

Daniel E. Gustafson
- 213 -

1
2
3
4
5
6
7
8
9
10
11

Email: [e-mail]
[e-mail]
[e-mail]

Jason S. Kilene
David A. Goodwin
GUSTAFSON GLUEK PLLC
650 Northstar East
608 Second Avenue South
Minneapolis, MN 55402
Telephone: [phone]
Fax: [phone]
Email: [e-mail]
[e-mail]

Derek G. Howard
MINAMI TAMAKI LLP
360 Post Street
8th Floor
San Francisco, CA 94108
Tel: [phone]
Fax: [phone]
Email: [e-mail]
Garrett D. Blanchfield, Jr.
REINHARDT WENDORF & BLANCHFIELD
E-1250 First National Bank Building
332 Minnesota Street
St. Paul, MN 55101
Tel: [phone]
Fax: [phone]
Email: [e-mail]

12
13

SALTZ MONGELUZZI BARRETT &
BENDESKY, PC
Simon Paris
Patrick Howard
One Liberty Place
52nd Floor 1650 Market Street
Philadelphia, PA 19103
Telephone: [phone]
Fax: [phone]
Email: [e-mail]

14
15
16
17
18
19
20
21
22
23
24

K.A.D. Camara
Joe Sibley
CAMARA & SIBLEY LLP
2339 University Boulevard
Houston, Texas 77005
Tel: [phone]
Fax: [phone]
Email: [e-mail]
[e-mail]

Dianne M. Nast
RODA NAST, P.C.
801 Estelle Drive
Lancaster, PA 17601
Telephone: [phone]
Fax: [phone]
Email: [e-mail]

Kimberly A. Kralowec
THE KRALOWEC LAW GROUP
188 The Embarcadero, Suite 800
San Francisco, CA 94105
Tel: [phone]
Fax: [phone]
Email: [e-mail]

25
26
27
28

Chris T. Hellums
PITTMAN DUTTON AND HELLUMS, P.C.
2001 Park Place North
Suite 1100
Birmingham, AL 35203
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 214 -

Douglas A. Millen
Robert J. Wozniak
FREED KANNER LONDON & MILLEN
LLC
2201 Waukegan Road, Suite 130
Bannockburn, IL 60015
Tel. [phone]
Fax [phone]
Email: [e-mail]
[e-mail]
Robert G. Eisler
GRANT & EISENHOFER, P.A.

1
2
3
4
5
6
7

Tel: [phone]
Fax: [phone]
Email: [e-mail]

485 Lexington Ave., 29th Floor
New York, NY 10017
Tel: [phone]
Fax: [phone]
Email: [e-mail]

Edgar D. Gankendorff
PROVOSTY & GANKENDORF LLC
650 Poydras Street
Suite 2700
New Orleans, La 70130
Tel: [phone]
Fax: [phone]
Email: [e-mail]

8
9
10
11
12
13

W.B. (Bill) Markovits
Terence (Terry) R. Coates
MARKOVITS, STOCK & DEMARCO, LLC
119 East Court Street, Suite 530
Cincinnati, OH 45202
Tel: [phone]
Fax: [phone]
Email: [e-mail]
[e-mail]

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
FOURTH CONSOLIDATED AMENDED
CLASS ACTION COMPLAINT

Case No. C 09-01967 CW

- 215 -

EXHIBIT F

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

SHAWNE ALSTON, on behalf of himself and a
class of persons similarly situated
Civil Action No.: 3:13-cv-05157-FLW-LHG
Plaintiffs,
-vsELECTRONIC ARTS, INC,

CONSENT ORDER AND STIPULATION
TO STAY PROCEEDING AND REQUEST
FOR
VOLUNTARY
DISMISSAL
PENDING
CLASS
SETTLEMENT
APPROVAL

Defendant.

WHEREAS, Shawne Alston and the putative class filed suit against Defendant, Electronic
Arts, Inc. (“EA”) on August 27, 2009.
WHEREAS, on September 26, 2013, the parties entered into a settlement in principle
resolving all claims asserted in this action, as well as claims against EA filed in Ryan Hart v.
Electronic Arts, Inc., Docket No. 09-CV-05990, s pending in this district and the claims against
EA in the consolidated actions in the Northern District of California: In re NCAA Student-Athlete
Name and Likeness Licensing Ligation, Docket No. 09-cv-1967.
WHEREAS, on February 19, 2004 this matter was stayed by a Letter Order from the
Honorable Freda L. Wolfson, U.S.D.J. (ECF Doc #13). This stay remains in place.
WHEREAS, the parties and counsel have agreed to seek approval of the class action
settlement with EA from Chief Judge Claudia Wilken, United States District Court for the
Northern District of California in the consolidated case In re NCAA Student-Athlete Name and
Likeness Licensing Ligation.

5-12-14 Alston Stip.docx

WHEREAS, the parties and counsel are prepared to move for preliminary approval of the
global settlement with EA in the case In re NCAA Student-Athlete Name and Likeness Licensing
Ligation.
NOW THEREFORE IT IS HEREBY STIPULATED AND AGREED, that the stay of
this action, previously entered on February 19, 2014, shall remain in full force and effect until a
final determination of the certification and approval motion of the proposed class settlement with
EA is reached by the Court in In re NCAA Student-Athlete Name and Likeness Licensing Ligation
.
IT IS FURTHER STIPULATED AND AGREED, that if the Northern District of
California grants final approval of the class action settlement with EA, this action shall be
voluntarily dismissed with prejudice.
IT IS FURTHER STIPULATED AND AGREED, that if the Northern District of
California denies final approval of the class settlement with EA, the stay entered on February 19,
2014 shall be lifted and this action shall proceed in the District of New Jersey. Counsel agrees to
notify this Court of the final result of the motion for approval and certification of the class
settlement in the Northern District of California.

5-12-14 Alston Stip.docx

-2-

It is so stipulated on this __ Day of May 2014.

Pinilis Halpern

McCusker, Anselmi, Rosen & Carvelli, PC

By __________________________

By __________________________

William J. Pinlis, Esq.
Pinlis Halpern
160 Morris Street
Morristown, NJ 07962
Telephone: [phone]
Facsimile: 973-401-1114
[e-mail]

Bruce R. Rosen, Esq.
McCusker, Anselmi, Rosen & Carvelli, PC
210 Park Avenue, STE 301
PO BOX 240
Florham Park, NJ 07932
[phone]
Fax: [phone]
[e-mail]

Robert B. Carey (Pro Hac Vice)
Leonard W. Aragon (Pro Hac Vice)
Hagens Berman Sobol Shapiro LLP
11 West Jefferson Street, Suite 1000
Phoenix, Arizona 85003
Telephone: [phone]
Facsimile: 602-840-3012
Email: [e-mail]
[e-mail]

R. James Slaughter
Robert Van Nest
Keker & Van Nest LLP
633 Battery Street
San Francisco, CA 94111
Telephone: [phone]
Facscimile: 415.397.7188
[e-mail]
ATTORNEYS FOR PLAINTIFF SHAWNE [e-mail]
ALSTON AND THE PROPOSED CLASS
ATTORNEYS FOR
DEFENDANT ELECTRONIC ARTS INC.

SO ORDERED

___________________________________
The Honorable Freda L. Wolfson, U.S.D.J.

5-12-14 Alston Stip.docx

-3-

EXHIBIT G

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

RYAN HART, Individually and on behalf of all
others similarity situated
Civil Action No.: 09-CV-05990-FLW-LHG
Plaintiffs,
-vsELECTRONIC ARTS, INC., a Delaware
Corporation
Defendant.

CONSENT ORDER AND STIPULATION
TO STAY PROCEEDING AND REQUEST
FOR
VOLUNTARY
DISMISSAL
PENDING
CLASS
SETTLEMENT
APPROVAL

WHEREAS, the complaint on behalf of Ryan Hart and the putative class against
Defendant, Electronic Arts, Inc. (“EA”), was removed to this Court on November 11, 2009.
WHEREAS, on September 26, 2013, the parties entered into a settlement in principle
resolving all claims asserted in this action, as well as the claims against EA in Shawne Alston v.
Electronic Arts, Inc., Docket No. 3:13-cv-05157, which is pending in this district and the claims
against EA in the consolidated actions in the Northern District of California: In re NCAA StudentAthlete Name and Likeness Licensing Ligation, Docket No. 09-cv-1967.
WHEREAS, on October 22, 2013, this matter was stayed pursuant to the Order of the
Hon. Freda L. Wolfson, U.S.D.J. (ECF Doc #84), and this stay remains in place and has not been
lifted by the Court.
WHEREAS, the parties and counsel have agreed to seek approval of the class action
settlement with EA from the Hon. Judge Claudia Wilken, U.S.D.J. in the Northern District of
California in the consolidated In re NCAA Student-Athlete Name and Likeness Licensing
Ligation case and that present counsel for Hart shall serve as class counsel for the purposes of the

5-12-14 - Hart Stip (2).doc

settlement along with interim co-lead counsel, previously appointed in In re NCAA StudentAthlete Name and Likeness Licensing Ligation.
WHEREAS, the parties and counsel are prepared to move for preliminary approval of the
global settlement with EA in the In re NCAA Student-Athlete Name and Likeness Licensing
Ligation case.
NOW THEREFORE IT IS HEREBY STIPULATED AND AGREED, that the stay of
this action, previously entered on October 22, 2013 shall remain in full force and effect until such
time as a final determination of the certification and approval motion of the proposed class
settlement with EA is reached by the Court in In re NCAA Student-Athlete Name and Likeness
Licensing Ligation.
IT IS FURTHER STIPULATED AND AGREED, that if the Northern District of
California grants final approval of the class settlement with EA, the above-entitled action shall be
dismissed voluntarily and with prejudice against all defendants in this action, pursuant to the terms
and conditions of the Long Form Settlement Agreement, reached between all parties and counsel
the Orders entered in In re NCAA Student-Athlete Name and Likeness Licensing Ligation
approving the class settlement.
IT IS FURTHER STIPULATED AND AGREED, that if the Northern District of
California denies final approval of the class settlement with EA, the stay entered on October 22,
2013 shall be lifted and this action shall proceed in the District of New Jersey. Counsel agrees to
notify this Court of the final result of the motion for approval and certification of the class
settlement in the Northern District of California.

-25-12-14 - Hart Stip (2).doc

It is so stipulated on this __ Day of May 2014.

The McKenna Law Firm, LLC

McCusker, Anselmi, Rosen & Carvelli, PC

By __________________________

By __________________________

Keith McKenna, Esq.
The McKenna Law Firm, LLC
96 Park Street
Montclair, New Jersey 07042
Telephone: [phone]
Facsimile: 973-509-3580
[e-mail]

Bruce R. Rosen, Esq.
McCusker, Anselmi, Rosen & Carvelli, PC
210 Park Avenue, STE 301
PO BOX 240
Florham Park, NJ 07932
[phone]
Fax: [phone]
[e-mail]

Dennis J. Drasco, Esq.
Arthur M. Owens, Esq.
Lum, Drasco & Positan LLC
103 Eisenhower Pkwy
Roseland, New Jersey, 07068
Telephone: [phone]
Facsimile: 973-403-9021
[e-mail]
[e-mail]
ATTORNEYS FOR PLAINTIFF
HART AND THE PROPOSED CLASS

R. James Slaughter
Robert Van Nest
Keker & Van Nest LLP
633 Battery Street
San Francisco, CA 94111
Telephone: [phone]
Facscimile: 415.397.7188
[e-mail]
RYAN [e-mail]
ATTORNEYS FOR
DEFENDANT ELECTRONIC ARTS INC.

SO ORDERED

___________________________________
The Honorable Freda L. Wolfson, U.S.D.J.

-35-12-14 - Hart Stip (2).doc