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

Filing 288

Joint Filing of Amended Settlement Agreements and Exhibits Thereto by Samuel Michael Keller (Attachments: #1 Exhibit 1, #2 Exhibit 2, #3 Exhibit 3, #4 Exhibit 4, #5 Exhibit 5)(Carey, Robert) (Filed on 7/24/2014) Modified on 7/25/2014 (cpS, COURT STAFF).

EXHIBIT 2

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Steve W. Berman (Pro Hac Vice)
HAGENS BERMAN SOBOL SHAPIRO LLP
1918 Eighth Avenue, Suite 3300
Seattle, Washington 98101
Telephone: [phone]
Facsimile: [phone]
[e-mail]
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]
[e-mail]
[e-mail]
Counsel for Plaintiffs

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION
SAMUEL MICHAEL KELLER, et al., on behalf
of themselves and all others similarly situated,

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Plaintiffs,

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v.

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

Case No. 4:09-cv-1967 CW
AMENDED CLASS ACTION
SETTLEMENT AGREEMENT AND
RELEASE
Judge: Hon. Claudia Wilken
Courtroom: 2, 4th Floor
Complaint Filed: May 5, 2009

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I.

PARTIES TO THE SETTLEMENT AGREEMENT

This Amended Class Action Settlement Agreement and Release, including Exhibits A - D

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hereto (“Settlement Agreement” or “Agreement”), is entered into by, between, and among the

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Keller Right of Publicity Named Plaintiffs, on behalf of themselves and the Settlement Class, and

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the Settling Defendant (collectively, the “Parties”), as defined below. This Settlement Agreement

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amends and replaces in its entirety the Parties’ earlier settlement agreement filed with the Court on

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June 30, 2014 (the “June 30, 2014 Agreement”). Upon execution of this Settlement Agreement by

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all Parties as provided in Paragraph 129, the June 30, 2014 Agreement shall have no further force

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or effect.

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A. Keller Right of Publicity Named Plaintiffs
Keller Right of Publicity Named Plaintiffs: Samuel Michael Keller, Bryan Cummings,

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LaMarr Watkins, and Bryon Bishop (collectively “Keller Named Plaintiffs” or “Keller Right of

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Publicity Named Plaintiffs”). The Keller Right of Publicity Named Plaintiffs enter into this

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Agreement on behalf of themselves and the Settlement Class as defined below.

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B. Settling Defendant

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Defendant National Collegiate Athletic Association (“NCAA”) may be referred to as the

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“NCAA” or “Settling Defendant.” Defendants Electronic Arts (“EA”) and the Collegiate

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Licensing Company LLC (“CLC”) are not Parties to this Agreement, and nothing in this

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Agreement shall be construed as waiving any right, cause of action, or claim by the Keller Named

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Plaintiffs, the Settlement Class, or the Released Parties against EA, CLC, or their respective

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affiliates, agents, representatives, successors, or assigns.

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C. Lawsuits

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

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with prejudice of all claims that were, could have been, or should have been brought against the

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NCAA in the following actions: Keller v. Electronic Arts, Inc. et al., Case No. 4:09-cv-01967-CW,

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and Bishop v. Electronic Arts, Inc., et al., 4:09-cv-04128-CW (collectively, the “Lawsuits”).

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This Agreement is intended to fully and finally compromise, resolve, discharge, and settle

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the Released Claims, as defined and on the terms set forth below, and to the full extent reflected

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herein, subject to the approval of the Court.

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II.

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RECITALS

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

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

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

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

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appears on a virtual player in the software;

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WHEREAS, on July 21, 2009, Plaintiff Edward C. O’Bannon Jr. filed O’Bannon v.

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National Collegiate Athletic Association, et al., No. 4:09-cv-03329-CW (N.D. Cal.), against the

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

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

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complaint to add EA as a defendant;

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WHEREAS, on September 4, 2009, Plaintiff Bryon Bishop filed Bishop v. Electronic Arts,

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Inc., et al., 4:09-cv-04128-CW, in the Northern District of California against EA, CLC, and the

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NCAA on behalf of himself and a proposed class of all NCAA football and basketball players

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

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produced by EA, and whose assigned jersey number appears on a virtual player in the software;

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

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In re NCAA Student-Athlete Name and Likeness Licensing Litigation (“NCAA Likeness

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Litigation”), Case No. 09-cv-01967-CW (NC) (N.D. Cal.), on January 15, 2010, and all cases

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subsequent to Keller and O’Bannon with claims related to Keller or O’Bannon were also

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consolidated in NCAA Likeness Litigation, including the following:

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Newsome v. National Collegiate Athletic Association, et al., Case No. 4:09-cv-04882-CW
(N.D. Cal.);
Jacobson v. National Collegiate Athletic Association, et al., Case No. 4:09-cv-05372-CW
(N.D. Cal.);
Rhodes v. National Collegiate Athletic Association, et al., Case No. 4:09-cv-05378-CW
(N.D. Cal.)
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Anderson v. National Collegiate Athletic Association et al, Case No. 4:09-cv-05100-CW
(N.D. Cal.);
Wimprine v. National Collegiate Athletic Association, et al., Case No. 4:09-cv-05134-CW
(N.D. Cal.);
Thrower, et al. v. National Collegiate Athletic Association, et al., Case No. 4:10-cv-00632CW (N.D. Cal.);
Robertson, et al. v. National Collegiate Athletic Association, et al., Case No. 4:11-cv00388-CW (N.D. Cal.); and
Russell v. National Collegiate Athletic Association, et al., Case No. 4:11-cv-04938-CW
(N.D. Cal.);
WHEREAS, some cases with claims similar to those consolidated in NCAA Likeness

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Litigation were dismissed and were not part of the consolidated NCAA Likeness Litigation,

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including

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Nuckles, et al. v. National Collegiate Athletic Association, et al., Case No. 2:09-cv-00235RLJ (E.D. Tenn.) (removed from Case No. 27864) (dismissed Dkt. 34); and

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Maze, et al v. National Collegiate Athletic Association, et al., Case No. 3:10-cv-05569-MEJ
(N.D. Cal.) (dismissed Dkt. 4);

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WHEREAS, Bryan Kegans and Ian Smetona filed a lawsuit (Kegans, et al. v. National

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Collegiate Athletic Association, et al., Case No. 1:14-cv-00444 (M.D. Pa.)), with claims similar to

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the right of publicity and antitrust claims consolidated in NCAA Likeness Litigation, but Kegans

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was not consolidated in NCAA Likeness Litigation;

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

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LLP and Hausfeld LLP as “Interim Co-Lead Counsel” in the NCAA Likeness Litigation, with

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Hagens Berman having “primary responsibility” for claims related to the allegations made in

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Keller, and Hausfeld LLP having primary responsibility for claims related to the allegations made

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in O’Bannon;

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WHEREAS, on March 10, 2010, the Keller Named Plaintiffs filed a Consolidated

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Amended Complaint (Dkt. No. 175), which amended the complaint to include LaMarr Watkins,

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Bryon Bishop, and Bryan Cummings and, among other things, re-define the proposed class as

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

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

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appears on a virtual player in the software, and (2) all persons whose photographed image was

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included in any NCAA-related interactive software produced by EA;
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WHEREAS, on May 16, 2011, Plaintiff O’Bannon filed a Second Consolidated Amended

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Complaint (Dkt. 327), adding claims against EA and making other modifications to the antitrust

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claims, but not altering the Keller right of publicity claims;

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WHEREAS, on July 18, 2013, Plaintiff O’Bannon filed a Third Consolidated Amended

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Complaint (“TCAC”), adding certain plaintiffs and making other modifications to the antitrust

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claims, but not altering the Keller Right of Publicity Claims;

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WHEREAS, the right of publicity and antitrust claims were deconsolidated in NCAA

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Likeness Litigation on May 23, 2014 (Dkt. 1092), and all right of publicity claims consolidated in

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NCAA Likeness Litigation were deconsolidated into Keller, leaving Keller and Bishop

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consolidated;
WHEREAS, the Keller Right of Publicity Named Plaintiffs allege generally that the

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NCAA, EA, and CLC misappropriated NCAA football and basketball players’ rights of publicity

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by using student-athletes’ names, images, and likenesses in EA’s NCAA-Branded Videogames;

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that the NCAA breached alleged contracts with the student-athletes; that the NCAA conspired with

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EA and CLC; and that the Keller Named Plaintiffs and all putative Settlement Class Members were

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harmed by Defendants’ conduct;

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WHEREAS, the NCAA denies the allegations in the Lawsuits; denies that it has engaged in

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any wrongdoing; denies that any name, image, photograph, or likeness of any NCAA student-

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athlete was used in any EA NCAA-Branded videogame; denies that it breached any alleged

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contract with any Settlement Class Member; denies that it participated in any conspiracy with EA,

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CLC, or anyone else; denies that it committed any act or omission giving rise to any liability;

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denies that it has violated any laws, rules of any regulatory body, or the NCAA’s Rules and

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Bylaws; denies that Settlement Class Members have been harmed in any way; denies that

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Settlement Class Members are entitled to any relief; denies that any payment pursuant to the

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Settlement to any Settlement Class Member is a payment for the use or misappropriation of any

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Settlement Class Member’s name, image, photograph, and/or likeness, or a payment for the athletic

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performance or persona of any Settlement Class Member; denies that Plaintiffs’ allegations state

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valid claims; denies that California or Indiana law applies to Settlement Class Members who reside
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outside of those respective states; denies that a litigation class could properly be certified in the

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Lawsuits; and states that it is entering into this Settlement Agreement solely to eliminate the

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uncertainties, burden, expense, and delay of further protracted litigation;

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WHEREAS, the Parties engaged the services of the Honorable Edward A. Infante (Ret.) to

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assist in their negotiations, and also attended multiple mediation sessions with Judge Nathanael

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Cousins before agreeing to the terms of this arm’s-length Settlement;

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WHEREAS, the Keller Named Plaintiffs and Class Counsel believe that the Settlement

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provides a favorable recovery for the Settlement Class, based on the claims asserted, the evidence

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developed, and the damages that might be proven against the NCAA in the Lawsuits. The Keller

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Named Plaintiffs and Class Counsel further recognize and acknowledge the expense and length of

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continued proceedings necessary to prosecute the Lawsuits against the NCAA through trial and

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appeals. They have also considered the uncertain outcome and the risk of any litigation, especially

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in complex litigation such as these cases, as well as the difficulties and delays inherent in any such

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litigation. They are also mindful of the inherent challenges of proof and the strength of the

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defenses to the alleged claims, and therefore believe that it is desirable that the Released Claims be

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

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WHEREAS, the Keller Named Plaintiffs and Class Counsel have examined the benefits to

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be obtained under the terms of this Settlement Agreement, have considered the risks associated

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with the continued prosecution of the Lawsuits and the likelihood of success on the merits of the

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Lawsuits, and believe that, after considering all the circumstances, the proposed Settlement set

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forth in this Agreement is fair, reasonable, adequate, in the best interests of the Keller Named

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Plaintiffs and the Settlement Class, and confers substantial benefits upon the Settlement Class;

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

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the terms in the Agreement, and any documents filed in support of the Settlement shall not

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constitute, or be offered, received, or construed as, an admission, finding, or evidence of

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(i) wrongdoing, (ii) violation of any statute or law, (iii) liability on the claims or allegations in the

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Lawsuits on the part of any Released Parties, or (iv) the propriety of certifying a litigation class in

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the Lawsuits or any other proceeding, and shall not be used by any Person for any purpose
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whatsoever in any legal proceeding, including but not limited to arbitrations, other than a

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proceeding to enforce the terms of the Agreement;

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

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been, could have been, or should have been brought against the NCAA in the Lawsuits, but nothing

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in this Agreement shall be construed as waiving, compromising, or extinguishing any issues or

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claims, including those currently pending or previously dismissed, that have been brought or could

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have been brought by the Keller Named Plaintiffs, the Settlement Class, or the Released Parties

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against EA, CLC, or their respective affiliates, agents, representatives, successors, or assigns in the

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Lawsuits or any related lawsuits;

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WHEREAS, a settlement was reached by the plaintiffs, EA, and CLC in the NCAA Player

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Likeness Litigation, originally filed with the Court on May 30, 2014, with amended papers filed on

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July 23, 2014, and is currently pending preliminary approval by the Court (the “EA Settlement”);

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and

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WHEREAS, the Parties agree they shall endeavor in good faith to coordinate with the

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parties to the EA Settlement regarding all aspects of the two settlements that will facilitate fairer

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and more efficient settlement procedures, to the extent such coordination is consistent with the

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Parties’ rights and obligations under this Agreement;

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

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AGREED, by the Keller Named Plaintiffs, for themselves and on behalf of the Settlement Class,

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and by the NCAA that, subject to the approval of the Court, the Lawsuits shall be settled,

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compromised, and dismissed, on the merits and with prejudice, and the Released Claims shall be

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finally and fully compromised, settled, and dismissed as to the Released Parties, in the manner and

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upon the terms and conditions hereafter set forth in this Agreement.

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III.

ADDITIONAL DEFINITIONS

In addition to the terms defined elsewhere in this Agreement, the following terms, used in
this Settlement Agreement, shall have the meanings specified below:
1. “Authorized Claimant” means any Settlement Class Member who submits a valid and
timely Claim that qualifies for a payment under the terms of this Settlement Agreement.
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2. “Bar Date” is the final date by which a Claim Form must be postmarked or submitted
online in order for a Settlement Class Member to be eligible to receive a First Payment
or a Second Payment, as set forth in this Settlement Agreement. The Bar Date shall be
specifically identified and set forth in the Preliminary Approval Order and the Class
Notice.

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

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4. “Claim Form” means the claim form without material variation from Exhibit D.

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5. “Class Counsel” means Hagens Berman Sobol Shapiro LLP and The Paynter Law Firm.

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

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

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8. “District Court Final Approval Order” means the final Judgment and order, which will
be agreed to by the Parties, that is entered by the Court finally approving the Settlement
and this Settlement Agreement in all respects, as further set forth in Paragraph 50.
9. “Effective Date” means the date after which both of the following events have occurred:
(a) the District Court Final Approval Order has been entered and (b) the District Court
Final Approval Order and Judgment have become Final.
10. “Escrow Account” means the bank account maintained by the Escrow Agent into which
the Settlement Fund shall be deposited, pursuant to the Escrow Agreement, which shall
be agreed to by the Parties.
11. “Escrow Agent” means the entity to be mutually agreed upon by the NCAA and Class
Counsel to maintain the Escrow Account, into which the Settlement Fund shall be
deposited in accordance with the terms of this Agreement.
12. “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 Paragraphs 99-105), or (b) request to be excluded from
the Settlement (pursuant to the Preliminary Approval Order and Paragraphs 91-98).
The Exclusion/Objection Deadline shall be sixty (60) days after the Mailed Notice Date,
and shall be specifically identified and set forth in the Preliminary Approval Order and
the Class Notice.
13. “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, finally approved by the Court.
14. “Fee and Expense Award” means the attorneys’ fees and expenses as awarded by the
Court, as further provided in Paragraph 58.
15. “Final,” when referring to a judgment order, means that (a) the judgment is a final,
appealable judgment; and (b) either (i) no appeal has been taken from the judgment as
of the date on which all times to appeal therefrom have expired, or (ii) an appeal or
other review proceeding of the judgment having been commenced, such appeal or other
review is finally concluded and no longer is subject to review by any court, whether by
appeal, petitions for rehearing or re-argument, petitions for rehearing en banc, petitions
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for writ of certiorari, or otherwise, and such appeal or other review has been finally
resolved in such manner that affirms the judgment order in its entirety.
16. “Incentive Award” means any participation awards to the Keller Right of Publicity
Named Plaintiffs, as further described in Paragraph 57.
17. “Judgment” means the judgment to be entered in the Lawsuits on final approval of this
Settlement, pursuant to Paragraph 50 and elsewhere in this Agreement.
18. “Keller Right of Publicity Claims” means the Right of Publicity Causes of Action First
– Seventh of the TCAC, and their associated allegations and prayer for relief, as
identified by the Court in its Order deconsolidating the Keller and O’Bannon actions
(Dkt. 1092)—i.e., paragraphs 1-6, 18-21, 25-28, 237-239, 248-336, 558-594, and the
sections of the TCAC entitled “Right of Publicity Prayer for Relief” and “Right of
Publicity Jury Demand.”
19. “Keller Right of Publicity Settlement Class” means all Division I NCAA football and
men’s basketball players (1) listed on a roster published or issued by a school whose
team was included in an NCAA-Branded Videogame originally published or distributed
during the Keller Right of Publicity Settlement Class Period, and (2) whose assigned
jersey number appears on a virtual player in the software, or whose photograph was
otherwise included in the software. Excluded from the Settlement 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 immediate family members; and the judicial officers and associated
court staff assigned to the Lawsuits and their immediate family members.
20. “Keller Right of Publicity Settlement Class Period” or “Settlement Class Period” means
the period from May 4, 2003 through the Preliminary Approval Date.
21. “Legally Authorized Representative” means an administrator/administratrix, personal
representative, or executor/executrix of a deceased Settlement Class Member’s estate; a
guardian, conservator, or next friend of an incapacitated Settlement Class Member; or
any other legally appointed Person responsible for handling the business affairs of a
Settlement Class Member.
22. “Mailed Notice Date” means the date that the initial mailing of the Notice of Settlement
of Class Action to potential Settlement Class Members, as provided in Paragraph 66, is
completed.
23. “NCAA-Branded Videogame” means every edition of NCAA Football, NCAA
Basketball, and NCAA March Madness (on any videogame platform) originally
published or distributed by EA during the Keller Right of Publicity Settlement Class
Period.
24. “Net Settlement Fund” means the Settlement Fund less any attorneys’ fees and costs,
Fee and Expense Award, Incentive Awards, expert fees, escrow fees, costs, Taxes, and
expenses (including, but not limited to, any cost and expenses paid out of the Notice
and Administration Fund, and any estimated future costs and expenses approved by the
Court) approved by the Court, as further provided in this Agreement.
25. “Notice and Administration Fund” means the fund consisting of $1,000,000 advanced
by the NCAA from the Settlement Amount to the Escrow Account to be used by the
Notice and Claims Administrator at the direction of Class Counsel to pay the costs of
notifying the Settlement Class Members, soliciting the filing of Claims by Settlement
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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, as further described in this Agreement. The
monies in the Notice and Administrative Fund are part of the Settlement Amount to be
paid by the NCAA. 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 the NCAA, in accordance with the terms of
the Escrow Agreement, and as further provided in Paragraphs 72 and 88.
26. “Notice and Claims Administrator” means the neutral, third-party settlement
administrator appointed by the Court.
27. “Notice of Settlement of Class Action” means the long-form Court-approved notice,
without material variation from Exhibit B.
28. “Opt-Out List” means the Court-approved list of all Persons who timely and properly
requested exclusion from the Settlement Class, as further provided in Paragraph 50(g).
29. “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.
30. “Plan of Allocation” means the plan for allocating the Net Settlement Fund between and
among Settlement Class Members as approved by the Court, as further set forth in
Paragraph 62.
31. “Preliminary Approval Order” means the Order that the Keller Named Plaintiffs and the
NCAA will seek from the Court, without material variation from Exhibit A. Entry of
the Preliminary Approval Order shall constitute preliminary approval of the Settlement
Agreement.
32. “Preliminary Approval Date” means the date that the Preliminary Approval Order is
entered.
33. “Released Claims” means any and all past, present, and future claims, liabilities, or
causes of action, known or unknown, existing or potential, expected or unexpected,
pursuant to any theory of recovery (including but not limited to those based in contract
or tort, common law or equity, federal, state, or local law, statute, ordinance, or
regulation, and for claims for compensatory, consequential, punitive or exemplary
damages, statutory damages, penalties, interest, attorneys’ fees, costs, or disbursements,
including but not limited to those incurred by Class Counsel or any other counsel
representing the Keller Named Plaintiffs or any Settlement Class Members, other than
those expressly awarded by the Court in the Fee and Expense Award authorized by this
Agreement), arising out of, involving, or relating to the alleged use of any name, image,
photograph, or likeness in EA’s production, manufacture, sale, distribution, or
publication of NCAA-Branded Videogames, or the alleged use of or failure to
compensate for the alleged use of any NCAA student-athlete’s name, image,
photograph, or likeness in connection with EA’s NCAA-Branded Videogames by the
NCAA, EA, CLC, or any Person, that have been, could have been, or should have been
asserted in the Lawsuits, including but not limited to any claims based in any way on
alleged rights of publicity or name, image, and likeness rights under the law of any state
or the United States, whether recognized now or hereafter, including any rights
recognized in court decisions or statutes. Notwithstanding the prior sentence, nothing in
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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 EA or CLC. The Released Claims
described in this Paragraph are released only with respect to Released Parties.

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34. “Released Parties” or “Releasees” means (a) the NCAA and its past, present, and future
parents, subsidiaries, divisions, affiliates, and member institutions (including its
members schools and their athletic conferences), and (b) the past present, and future
agents, employees, and independent contractors (in each case to the extent of acts and
omissions within the scope and course of their agency, employment, or engagement),
officers, directors, members, insurers, attorneys, legal representatives, successors, and
assigns of the entities in Part (a) of this Subparagraph. Notwithstanding the prior
sentence, EA and CLC, and their present, former, and future officers, directors,
employees, agents, attorneys, insurers, insurance agents and brokers, independent
contractors, successors, assigns, parents, subsidiaries, and affiliates (other than the
NCAA and its member institutions) are not Released Parties or Releasees.
35. “Season Roster Appearance” shall have the meaning in Paragraph 62(b). No Settlement
Class Member shall have more than one Season Roster Appearance for any given
edition (year) of an NCAA-Branded Videogame.
36. “Season Roster Appearance Point” shall have the meaning in Paragraph 62(c).
37. “Settlement” means the settlement of the Lawsuits between and among the Keller
Named Plaintiffs, the Settlement Class Members, and Settling Defendant, as set forth in
this Settlement Agreement.
38. “Settlement Amount” means Twenty Million Dollars ($20,000,000.00).
39. “Settlement Class” means the Keller Right of Publicity Settlement Class.

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40. “Settlement Class Member” shall mean any Keller Right of Publicity Settlement Class
Member.

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41. “Settlement Class Period” means the Keller Right of Publicity Settlement Class Period.

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42. “Settlement Fund” means the Settlement Amount.

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43. “Summary Notice of Settlement of Class Action” means the form of summary notice,
without material variation from Exhibit C.

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IV.
SUBMISSION OF THE SETTLEMENT AGREEMENT
TO THE COURT FOR PRELIMINARY AND FINAL APPROVAL

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44.

Promptly upon execution of this Settlement Agreement, the Keller Named Plaintiffs

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shall submit to the Court a motion for preliminary approval of the Settlement. The motion for

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preliminary approval shall include a proposed plan for the sending of the Notice of Settlement of
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Class Action to Settlement Class Members within one hundred twenty (120) days after the

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Preliminary Approval Date (the “Mailed Notice Date”), and establishing a period of sixty (60) days

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from the Mailed Notice Date within which any Settlement Class Member may (a) request exclusion

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from the Settlement Class, (b) object to the proposed Settlement, or (c) object to Class Counsel’s

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request for attorneys’ fees and costs and for incentive awards to the Keller Named Plaintiffs (the

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Exclusion/Objection Deadline). The motion for preliminary approval shall also request that any

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hearing on final approval of the Settlement and any determination on the request for attorneys’

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fees, costs, and incentive awards (the “Fairness Hearing”) be set for no earlier than twenty-one (21)

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days after the Exclusion/Objection Deadline; that Class Counsel shall file a petition for awards of

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attorneys’ fees and costs and incentive awards at least twenty-one (21) days before the

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Exclusion/Objection Deadline; and that any reply briefs on such motions and petitions be filed

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fourteen (14) days before the Fairness Hearing.

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45.

The Parties hereby stipulate to certification under Rules 23(a) and 23(b)(3) of the

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Federal Rules of Civil Procedure, for settlement purposes only, of the Settlement Class. Each Party

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agrees that this stipulation shall not be used by any Person for any purpose whatsoever in any legal

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proceeding, including but not limited to arbitrations, other than a proceeding to enforce the terms

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of the Agreement, as further set forth in this Agreement.

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46.

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

Final Approval Order approving the Settlement.
47.

The Parties have agreed to submit to the Court for its consideration this Settlement

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Agreement, including all Exhibits: Preliminary Approval Order (Exhibit A), Notice of Settlement

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of Class Action (Exhibit B), Summary Notice of Settlement of Class Action (Exhibit C), and Claim

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Form (Exhibit D).

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48.

Solely for purposes of implementing this Agreement and effectuating the proposed

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Settlement, the Parties stipulate that the Court may enter the Preliminary Approval Order, without

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material variation from Exhibit A, preliminarily approving the Settlement and this Agreement.

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Among other things, the Preliminary Approval Order shall preliminarily certify the Settlement

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Class for settlement purposes only; approve the Keller Named Plaintiffs as class representatives,
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AMENDED CLASS ACTION SETTLEMENT AGREEMENT AND RELEASE

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appoint Class Counsel to represent the Settlement Class, and appoint the Notice and Claims

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Administrator; approve the Notice of Settlement of Class Action, the Summary Notice of

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Settlement of Class Action, the Claim Form, and the Class Notice plan, and approve them as

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consistent with Federal Rule of Civil Procedure 23 and due process; set out the requirements for

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objecting to the Settlement, excluding Settlement Class Members from the Settlement Class, and

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submitting Claims, all as provided in this Agreement; provide that certification and all actions

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associated with certification are undertaken on the condition that the certification and other actions

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shall be automatically vacated if this Agreement is terminated, as provided in this Agreement;

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preliminarily enjoin all Settlement Class Members and their Legally Authorized Representatives,

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unless and until they submit a timely request for exclusion pursuant to the Settlement Agreement,

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from filing or otherwise participating in any other suit based on the Released Claims, or from

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attempting to effect an opt-out of a group, class, or subclass of individuals; and schedule the

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Fairness Hearing.

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49.

The EA Settlement does not purport to resolve any claims against NCAA, and this

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Settlement Agreement does not purport to resolve any claims against EA or CLC. The NCAA,

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EA, and CLC have reached an agreement to resolve potential claims between them relating to this

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Settlement and the EA Settlement. The NCAA shall inform the Court of the existence of that

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confidential agreement and be prepared to submit in camera to the Court, at the Court’s request, a

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copy of the confidential agreement.

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50.

At the Fairness Hearing, the Keller Named Plaintiffs shall request entry of a District

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Court Final Approval Order and a Judgment, to be agreed upon by the Parties, the entry of which is

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a material condition of this Settlement Agreement, and that, among other things:

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a. finally approves the Settlement as fair, reasonable, and adequate, within the meaning
of Rule 23 of the Federal Rules of Civil Procedure and due process, and directs its
consummation pursuant to the terms of the Settlement Agreement;
b. finds that Class Counsel and the Keller Named Plaintiffs adequately represented the
Settlement Class for the purpose of entering into and implementing the Agreement;
c. re-confirms the appointment of the Notice and Claims Administrator and finds that
the Notice and Claims Administrator has fulfilled its duties under the Settlement;

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AMENDED CLASS ACTION SETTLEMENT AGREEMENT AND RELEASE

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d. finds the Settlement is in good faith pursuant to federal law and California Code of
Civil Procedure 877.6, including that the amount to be paid in the Settlement is in
accord with the Keller Named Plaintiffs’ and the Settlement Class Members’
potential total recovery and the NCAA’s potential liability, that the allocation of the
Settlement is fair, that the Settlement is not meant to be the equivalent of liability
damages, that the Settlement considers the relevant financial circumstances of the
NCAA, and that the Settlement is not the product of and does not evince collusion,
fraud, or tortious conduct aimed to injure the interests of defendants other than the
NCAA;
e. finds that the Class Notice (i) constituted the best practicable notice; (ii) constituted
notice that was reasonably calculated, under the circumstances, to apprise Settlement
Class Members of the pendency of the Lawsuits, and their right to exclude
themselves from or object to the proposed settlement and to appear at the Fairness
Hearing; (iii) was reasonable and constituted due, adequate, and sufficient notice to
all persons entitled to receive notice; and (iv) met all applicable requirements of
Federal Rule of Civil Procedure 23, due process, and any other applicable rules or
law;
f. finds that the CAFA Notice sent by the NCAA complied with 28 U.S.C. § 1715 and
all other provisions of the Class Action Fairness Act of 2005;
g. approves the Opt-Out List and determines that the Opt-Out List is a complete list of
all Settlement Class Members who have timely requested exclusion from the
Settlement Class and, accordingly, shall neither share in nor be bound by the District
Court Final Approval Order and Judgment;
h. approves the striking and dismissal with prejudice of the Keller Right of Publicity
Claims in the TCAC;
i. dismisses the NCAA from the Lawsuits on the merits and with prejudice, and
without fees or costs except as provided in this Agreement;
j. finds under Federal Rule of Civil Procedure 54(b) that there is no just reason for
delay and directs that the District Court Final Approval Order and Judgment of
dismissal as to the NCAA shall be final and entered forthwith;
k. without affecting the finality of the District Court Final Approval Order and
Judgment, reserves jurisdiction over the Keller Named Plaintiffs, the Settlement
Class, and the NCAA as to all matters concerning the administration, consummation,
and enforcement of this Settlement Agreement;
l. adjudges that, as of the Effective Date, the Keller Named Plaintiffs, and all
Settlement Class Members who have not been excluded from the Settlement Class as
provided in the Opt-Out List approved by the Court, and their heirs, estates, trustees,
executors, administrators, principals, beneficiaries, representatives, agents, assigns,
and successors, and/or anyone claiming through them or acting or purporting to act
for them or on their behalf, regardless of whether they have received actual notice of
the proposed Settlement, have conclusively compromised, settled, discharged, and
released all Released Claims against the NCAA and the Released Parties, and are
bound by the provisions of this Agreement, as further provided in Paragraphs 74-78;
m. declares this Agreement and the District Court Final Order and Judgment to be
binding on, and have res judicata and preclusive effect in, all pending and future
lawsuits or other proceedings encompassed by the Released Claims maintained by or
on behalf of the Keller Named Plaintiffs, and all other Settlement Class Members
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AMENDED CLASS ACTION SETTLEMENT AGREEMENT AND RELEASE

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who have not been excluded from the Settlement Class as provided in the Opt-Out
List approved by the Court, and their heirs, estates, trustees, executors,
administrators, principals, beneficiaries, representatives, agents, assigns, and
successors, and/or anyone claiming through them or acting or purporting to act for
them or on their behalf, regardless of whether the Settlement Class Member
previously initiated or subsequently initiates individual litigation or other
proceedings encompassed by the Released Claims, and even if such Settlement Class
Member never received actual notice of the Lawsuits or this proposed Settlement;
permanently bars and enjoins the Keller Named Plaintiffs, and all other Settlement
Class Members who have not been excluded from the Settlement Class as provided
in the Opt-Out List approved by the Court, from (i) filing, commencing, prosecuting,
intervening in, or participating (as class members or otherwise) in any other lawsuit
or administrative, regulatory, arbitration, or other proceeding in any jurisdiction
based on the Released Claims and (ii) organizing Settlement Class Members into a
separate group, class, or subclass for purposes of pursuing as a purported class action
any lawsuit or administrative, regulatory, arbitration, or other proceeding (including
by seeking to amend a pending complaint to include class allegations, or seeking
class certification in a pending action) based on the Released Claims;
n. orders that EA, CLC, and any other Party or Person who may assert a claim against
any Released Party or Releasee based upon, relating to, or arising out of the Released
Claims, the Lawsuits, any EA NCAA-Branded Videogame, or the Settlement are
barred, enjoined, and permanently restrained from instituting, commencing,
pursuing, prosecuting, or asserting any claim against the Released Parties for
contribution, indemnity (with the exception of contractual indemnity claims to the
extent that any may exist), or otherwise denominated (including but not limited to
any other claim that arises out of, involves, or relates to any potential or actual
liability owed to the Keller Named Plaintiffs and/or the Settlement Class, and/or for
related costs or fees in connection with that asserted liability), as claims, crossclaims, counterclaims, or third-party claims in any court, arbitration, administrative
agency, or forum, or in any other manner, including but not limited to a request for
offset. All such claims are hereby extinguished, discharged, satisfied, and
unenforceable, and nothing in this Paragraph shall be deemed to imply that EA, CLC,
or any Party or Person has a right to contribution or indemnity against any of the
Released Parties;
o. determines that the Agreement and the Settlement provided for herein, and any
proceedings taken pursuant thereto, are not, and should not in any event be offered,
received, or construed as evidence of, a presumption, concession, or an admission by
any Party of liability or non-liability or of the certifiability or non-certifiability of a
litigation class, or of any misrepresentation or omission in any statement or written
document approved or made by any Party; provided, however, that reference may be
made to this Agreement and the Settlement provided for herein in such proceedings
as may be necessary to effectuate the provisions of this Agreement, as further set
forth in this Agreement;
p. orders that the certification of the Settlement Class and final approval of the
proposed Settlement, and all actions associated with them, are undertaken on the
condition that they shall be vacated if the Settlement Agreement is terminated or
disapproved in whole or in part by the Court, or any appellate court and/or other
court of review, or if any of the Parties invokes the right to withdraw from the
settlement as provided in Paragraphs 86-87 in which event the Agreement and the
fact that it was entered into shall not be offered, received, or construed as an
admission or as evidence for any purpose, including but not limited to an admission
by any Party of liability or non-liability or of any misrepresentation or omission in
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AMENDED CLASS ACTION SETTLEMENT AGREEMENT AND RELEASE

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any statement or written document approved or made by any Party, or of the
certifiability of a litigation class, as further provided in Paragraphs 89-90;

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q. authorizes the Parties, without further approval from the Court, to agree to and adopt
such amendments, modifications, and expansions of this Agreement, including all
Exhibits hereto, as (i) shall be consistent in all material respects with the District
Court Final Approval Order and (ii) do not limit the rights of Settlement Class
Members; and
r. contains such other and further provisions consistent with the terms of this
Settlement Agreement to which the Parties expressly consent in writing.
51.

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

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Counsel will also request approval of the Plan of Allocation set forth in Paragraph 62. Any

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modification to the Plan of Allocation by the Court shall not (i) affect the enforceability of the

10

Settlement Agreement, (ii) provide any of the Parties with the right to terminate the Settlement

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Agreement, or (iii) impose any obligation on the Settling Defendant to increase the consideration

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paid in connection with the Settlement.

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52.

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

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

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incentive awards to the Keller Named Plaintiffs. Any such Fee and Expense Award or Incentive

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Award shall be paid exclusively from the Settlement Fund and shall be payable twenty-one (21)

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days after the Effective Date. In no event shall the NCAA otherwise be obligated to pay for any

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attorneys’ fees and expenses or incentive awards. The disposition of Class Counsel’s application

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for a Fee and Expense Award, and for Incentive Awards, is within the sound discretion of the

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

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

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application by the Court shall not (i) affect the enforceability of the Settlement Agreement,

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(ii) provide any of the Parties with the right to terminate the Settlement Agreement, or (iii) impose

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any obligation on the Settling Defendant to increase the consideration paid in connection with the

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Settlement.

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V.
53.

SETTLEMENT CONSIDERATION

The total monetary component of the Settlement is the Settlement Amount

($20,000,000.00). This is an “all in” number which includes, without limitation, all monetary
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AMENDED CLASS ACTION SETTLEMENT AGREEMENT AND RELEASE

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benefits and payments to the Settlement Class, Incentive Awards, Fee and Expense Award, escrow

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fees, Taxes, Tax Expenses, and all other costs and expenses relating to the Settlement (including,

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but not limited to, administration costs and expenses, notice costs and expenses, and settlement

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costs and expenses). Under no circumstances will the NCAA be required to pay anything more

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than the Settlement Amount. In no event shall the NCAA be liable for making any payments under

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this Settlement, or for providing any relief to Settlement Class Members, before the deadlines set

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forth in this Agreement. After the Effective Date, the NCAA shall not have any right to the return

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

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filed or the amounts to be paid to Authorized Claimants from the Settlement Fund, except as

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provided in Paragraph 62(i).
54.

NCAA shall pay into the Escrow Account, for the benefit of the Settlement Class, as

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follows: (1) within twenty-one (21) days of entry of the Preliminary Approval Order, the NCAA

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shall pay into the Escrow Account $1,000,000.00 to be used by the Notice and Claims

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

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

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“Notice and Administration Fund”), according to the terms in Paragraphs63-72; and (2) within

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fourteen (14) days after the Effective Date, the NCAA shall pay into the Escrow Account the

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remaining amount of the Settlement Amount ($19,000,000.00).

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55.

The Settlement Fund shall be deposited, at the times specified in Paragraph 54, into

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an interest-earning Escrow Account agreed to by Class Counsel and the NCAA, and all interest

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

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jurisdiction of the Court, until such time as it is distributed in compliance with the Settlement

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Agreement, Escrow Agreement, and Court order. The Escrow Agent shall invest the Settlement

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Fund exclusively in instruments backed by the full faith and credit of the United States

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Government or fully insured by the United States Government or an agency thereof, including a

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U.S. Treasury Money Market Fund or a bank account insured by the Federal Deposit Insurance

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Corporation (“FDIC”) up to the guaranteed FDIC limit. The Escrow Agent shall reinvest the

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proceeds of these instruments as they mature in similar instruments at their then-current market
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rates. The Parties and the Escrow Agent agree to treat the Settlement Fund as a “qualified

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settlement fund” within the meaning of Treasury Regulation § 1.468B-1, and the Escrow Agent, as

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administrator of the Escrow Account within the meaning of Treasury Regulation § 1.468B-2(k)(3),

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shall be responsible for filing tax returns for the Escrow Account and paying from the Escrow

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Account any and all taxes, including any interest or penalties thereon (the “Taxes”), owed with

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respect to the Escrow Account. In addition, the Escrow Agent shall timely make such elections as

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necessary or advisable to carry out the provisions of this Paragraph, including if necessary the

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“relation-back election” (as defined in Treas. Reg. § 1.468B-1) back to the earliest permitted date.

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Such elections shall be made in compliance with the procedures and requirements contained in

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such regulations. It shall be the responsibility of the Escrow Agent to timely and properly prepare

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and deliver the necessary documentation for signature by all necessary parties, and thereafter to

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cause the appropriate filing to occur.

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56.

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

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(including any Taxes that may be imposed upon the Settling Defendant with respect to any income

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

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

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

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

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

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tax returns (the “Tax Expenses”)), shall be paid out of the Settlement Fund. The NCAA shall not

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have any liability or responsibility for the Taxes or the Tax Expenses. The Escrow Agent shall

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

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

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

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

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

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

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Settlement Fund, and is authorized to withdraw from the Escrow Account amounts necessary to
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pay Taxes and Tax Expenses. The Parties hereto agree to cooperate with the Escrow Agent, each

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

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provisions of this Settlement Agreement. Neither the Parties nor their counsel shall not have any

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responsibility or liability for the acts or omissions of the Escrow Agent.

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57.

The terms of this Agreement relating to the Fee and Expense Award and Incentive

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Awards were not negotiated by the Parties before full agreement was reached as to all other

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material terms of the proposed Settlement, including, but not limited to, any terms relating to the

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relief to the Settlement Class. The NCAA agrees not to oppose a request for an Incentive Award

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for each of the Keller Named Plaintiffs as awarded by the Court, up to a maximum of $5,000 per

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Keller Named Plaintiff. The Keller Named Plaintiffs and Class Counsel agree not to seek an

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Incentive Award in excess of the above amount. The Incentive Awards will be payable from the

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Settlement Fund contained in the Escrow Account twenty-one (21) days after the Effective Date.

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58.

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

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twenty-nine percent (29%) of the Settlement Fund and a maximum of $500,000 in costs (not

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including, but in addition to, costs of administration). The NCAA agrees not to oppose a request

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for attorneys’ fees up to 29% of the Settlement Fund and such costs not exceeding $500,000. Any

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Fee and Expense Award, as awarded by the Court, shall be payable from the Settlement Fund

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contained in the Escrow Account, as ordered, within twenty-one (21) days after the Effective Date.

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VI.

CALCULATING CLAIMS PAYMENTS; PLAN OF ALLOCATION

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59.

This Settlement shall be a claims-made settlement.

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60.

To be considered an Authorized Claimant, a Settlement Class Member or his

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Legally Authorized Representative must timely submit a Claim Form that satisfies the

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requirements of Paragraph 61, must not have submitted a request for exclusion, and must be

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eligible for a payment under the Plan of Allocation in Paragraph 62.

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61.

A Claim Form is timely if it is postmarked by the Bar Date and mailed to the Notice

26

and Claims Administrator at the address in the Notice of Settlement of Class Action, or if it is

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submitted online on the settlement website by the Bar Date. The Claim Form must be signed (e-

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signature, if submitted online) under penalty of perjury.
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AMENDED CLASS ACTION SETTLEMENT AGREEMENT AND RELEASE

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62.

2

Plan of Allocation:

3

a.

Class Counsel and the Notice and Claims Administrator shall attempt in good faith
to identify the Authorized Claimants and the amounts to which they are eligible
under this Settlement as follows, including through the use of databases created by
Class Counsel and EA for the EA Settlement.

b.

Determining Season Roster Appearances

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Payments under this Settlement shall be calculated in accordance with the following

1.

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A claimant may be eligible to receive a payment under this Settlement when
that claimant’s name is listed on a roster published or issued by a school
whose team was included in any NCAA-Branded Videogame during the
Settlement Class Period, and his assigned jersey number appears on a virtual
avatar from that same team. Thus, the claimant and the virtual avatar must
match the following criteria:
i.
ii.
iii.

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Academic Institution,
Assigned Jersey Number, and
Sport/Division.

To the extent that there is more than one player with the same jersey number
on the same roster, the Notice and Claims Administrator shall look to the
claimant’s

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iv.

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Position

to determine whether there is a match. To the extent that there is more than
one claimant who matches criteria i-iv above, the Notice and Claims
Administrator shall look to the claimant’s

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v.

Home State

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to determine whether there is a match.

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To the extent that more than one claimant matches criteria i-v, each such
claimant shall be deemed to be a match.

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Satisfaction of the above shall constitute one (1) Season Roster Appearance
for each edition (year) of an NCAA-Branded Videogame.

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2.

A claimant may be eligible to receive one (1) Season Roster Appearance
when that claimant’s name is listed on a roster published or issued by a
school whose team was included in any NCAA-Branded Videogame during
the Settlement Class Period, and his photograph appears in any NCAABranded Videogame. A claimant is eligible for one (1) Season Roster
Appearance Point for each edition (year) in which his photograph appears in
any NCAA-Branded Videogame.

3.

Paragraphs 62(b)(1) & (b)(2) are subject to the proviso that a claimant is
entitled to a maximum of one (1) Season Roster Appearance for each edition
(year) of an NCAA-Branded Videogame (i.e., one Season Roster
Appearance either through Paragraph 62(b)(1), or Paragraph 62(b)(2), but
not both for the same edition (year)).

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c.

Each Season Roster Appearance from May 4, 2005 through the Preliminary
Approval Date (“Post-2005 Videogame Appearance”) shall be worth 6.6 Season
Roster Appearance Points. Each Season Roster Appearance from May 4, 2003
through May 3, 2005 (“Pre-2005 Videogame Appearance”) shall be worth 1.8
Season Roster Appearance Points. The dollar value of one (1) Season Roster
Appearance Point will therefore be the Net Settlement Fund divided by the total
number of Season Roster Appearance Points earned by Authorized Claimants.

d.

To the extent a Settlement Class Member who submits a valid and timely Claim
Form has no Season Roster Appearance Points as calculated above, that Settlement
Class Member shall receive a $100 payment. All other Authorized Claimants shall
be entitled to a pro rata share of the Net Settlement Fund at the time of distribution
of the First Payment (as noted below) based on the number of Season Roster
Appearance Points the Authorized Claimant has.

e.

The Notice and Claims Administrator shall use reasonable efforts to deliver by
First-Class Mail a letter enclosing a check with payment equal to each Settlement
Class Member’s share of the Net Settlement Fund, as calculated in Paragraphs
62(a)-(d) (the “First Payment”), and also explaining the limited right of objection as
set forth in Paragraph 62(g), within sixty (60) days after the Bar Date, but in no
event before the Effective Date. At the same time, the Notice and Claims
Administrator shall send a letter to all other claimants who are not Authorized
Claimants stating that such claimants are not entitled to a payment under this
Settlement, and explaining the limited right of objection as set forth in Paragraph
62(g).

f.

Authorized Claimants will have ninety (90) days from the date on the Notice and
Claims Administrator’s letter accompanying the First Payment checks to cash their
settlement checks. All outstanding, un-cashed checks will become void after ninety
(90) days, and the associated funds will revert to the Net Settlement Fund.

g.

Any claimant who wishes to object to the Notice and Claims Administrator’s
determinations set out in Paragraphs 62(a)-(e) must submit a written objection to the
Notice and Claims Administrator that is postmarked within thirty (30) days of the
date of the Notice and Claims Administrator’s letter. The written objection shall set
forth the basis for the objection, including, to the best of the claimant’s ability,
identifying all Season Roster Appearances claimed by the claimant and the dollar
amount of any additional payment the claimant believes he is eligible for under the
Settlement. If the Notice and Claims Administrator, Class Counsel, and the
claimant cannot agree on the objection within fourteen (14) days of the postmark
date of the written objection, the Notice and Claims Administrator shall send the
claimant a letter so stating. The claimant may submit a written appeal to the District
Court within fourteen (14) days of the date of the letter referred to in the previous
sentence. The District Court, in its sole discretion, may refer the objection to a
Magistrate Judge, special master, or other Person. The decision on these objections
shall be final, binding, and nonappealable. No other objections to Claims decisions
and payments shall be allowed in this Settlement, including but not limited to
objections to the Notice and Claims Administrator’s decisions regarding the
timeliness of any Claims, objections, or appeals, which decisions are final, binding,
and nonappealable. Any additional amounts payable as a result of these objections
or appeals shall be distributed pro rata out of any remaining Net Settlement Fund,
as part of the Second Payment process described in Paragraph 62(h).

h.

If there are any remaining funds in the Net Settlement Fund one hundred (100) days
from the latest date on any letter from the Notice and Claims Administrator

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accompanying a First Payment check, and there are no pending appeals pursuant to
Paragraph 62(g), the Notice and Claims Administrator will deliver by First-Class
Mail a second payment equal to a pro rata share of the remaining Net Settlement
Fund to each Authorized Claimant who cashed his check from the First Payment
and who, in the First Payment, received an amount less than the Settlement Cap for
at least one Season Roster Appearance (the “Second Payment”). Like the First
Payment, the Second Payment will be based on the number of Season Roster
Appearance Points the Authorized Claimant has as calculated in Paragraph 62(c).
If there are any pending appeals pursuant to Paragraph 62(g), the Notice and Claims
Administrator will wait until any such appeals are resolved before distributing any
funds under the Second Payment process.

1
2
3
4
5
6

Authorized Claimants will have sixty (60) days from the date on the Notice and
Claims Administrator’s letter accompanying the Second Payment check to cash
their settlement checks. All outstanding, un-cashed checks will become void after
sixty (60) days, and the associated funds will revert to the Net Settlement Fund.

7
8
9

i.

If there are remaining funds after all distributions described in Subparagraphs 62(a)(h) above (“Residual Funds”), Class Counsel shall submit a plan for distribution of
all such Residual Funds to the Court within 120 days of the date the final Second
Payment described in Paragraph 62(h) is mailed. This plan shall describe the
development and implementation of a trust fund program (1) focused on working
with and/or through those NCAA member institutions willing to promote the
program and assist in locating Settlement Class Members, (2) that would
compensate any Settlement Class Members located at a basic per-Season-Roster–
Appearance rate equal to the lowest amount received by any Authorized Claimant
for a Season Roster Appearance under the Second Payment procedures described in
Paragraph 62(h), until all Residual Funds are exhausted, and without right to object
to or appeal that decision; and (3) that would—in the event all Residual Funds are
not exhausted after five (5) years—convert into a hardship-based scholarship fund
designed to assist Settlement Class Members who did not graduate with a college
degree and who wish to return to college. Under no circumstances shall any funds
be returned to the NCAA or its member institutions unless, as part of the trust fund
program described above, the funds are held by the NCAA or its member
institutions for use by Settlement Class Members exclusively and no administrative
fees are deducted from the funds. Class Counsel is under no obligation to include
the NCAA or its member institutions in the plan submitted to the court. Class
Counsel shall endeavor to distribute funds to Settlement Class Members who were
allocated less than the Settlement Cap.

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

VII.

NOTICE AND ADMINISTRATION FUND AND MAILING OF CLASS NOTICE
63.

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

of identifying and notifying Settlement 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 and escrow fees, 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
21
AMENDED CLASS ACTION SETTLEMENT AGREEMENT AND RELEASE

09-cv-1967 CW

1

Settlement Class Members, the cost of publishing notice, printing and mailing notice, as directed

2

by the Court, and the cost of processing Claims and distributing the Net Settlement Fund to

3

Settlement Class Members.

4

64.

NCAA represents that it is currently unable to identify the names and last-known

5

addresses of Settlement Class Members. Accordingly, the NCAA will cooperate in good faith to

6

assist in identifying the names and last-known addresses of potential Settlement Class Members by

7

requesting that its member institutions and affiliated alumni associations provide to the Notice and

8

Claims Administrator reasonably ascertainable information regarding the names and last-known

9

addresses of NCAA football and basketball players who were listed on a roster published or issued

10

by a school whose team was included in an NCAA-Branded Videogame published or distributed

11

during the Keller Right of Publicity Settlement Class Period. To the extent that a member

12

institution or affiliated alumni association declines to provide such information, Class Counsel

13

shall endeavor in good faith to obtain such information, including when necessary by subpoena to

14

such member institution or affiliated alumni association (to the extent Class Counsel have not

15

already done so), and shall forward any information received to the Notice and Claims

16

Administrator.

17

65.

Before mailing the Notice of Settlement of Class Action, the Notice and Claims

18

Administrator shall make a good-faith attempt to obtain the most-current names and addresses for

19

all potential Settlement Class Members, including cross-checking the names and/or addresses it

20

received from the NCAA member institutions and alumni associations, as well as any other

21

sources, with appropriate databases (e.g., the National Change of Address Database ) and

22

performing further reasonable searches (e.g., through Lexis/Nexis) for more-current names and/or

23

addresses for potential Settlement Class Members. All Settlement Class Members’ names and

24

addresses obtained through these sources shall be protected as confidential and not used for

25

purposes other than the notice and administration of this Settlement.

26

66.

The Notice and Claims Administrator shall send a copy of the Notice of Settlement

27

of Class Action by first-class mail to each potential Settlement Class Member identified as a result

28

of the above search(es), as well as to Hagens Berman Sobol Shapiro LLP and The Paynter Law
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AMENDED CLASS ACTION SETTLEMENT AGREEMENT AND RELEASE

09-cv-1967 CW

1

Firm PLLC and to counsel for the NCAA. The Parties shall use their best efforts to complete the

2

mailing of the Notice of Settlement of Class Action to potential Settlement Class Members within

3

one hundred twenty (120) days after entry of the Preliminary Approval Order.

4

67.

If any Notice of Settlement of Class Action mailed to any potential Settlement Class

5

Member in accordance with Paragraph 66 is returned to the Notice and Claims Administrator as

6

undeliverable, the Notice and Claims Administrator will promptly log each such Notice of

7

Settlement of Class Action and provide copies of the log to Class Counsel and counsel for the

8

NCAA, as requested. If the mailing is returned with a forwarding address, the Notice and Claims

9

Administrator shall forward the mailing to that address. For the remaining returned mailings, the

10

Notice and Claims Administrator shall made a good-faith search of an appropriate database, and

11

mailings shall be forwarded to any new address obtained through such a search. In the event that

12

any Notice of Settlement of Class Action is returned as undeliverable a second time, no further

13

mailing shall be required.

14

68.

It is agreed by the Parties that the procedures set forth in Paragraphs 63-67

15

constitute reasonable and the best practicable notice under the circumstances and an appropriate

16

and sufficient effort to locate current addresses for Settlement Class Members such that no

17

additional efforts to do so shall be required.

18

69.

The Notice and Claims Administrator will provide Class Notice by, at a minimum,

19

(i) First-Class Mail (where available) notice without material variation from the form attached as

20

Exhibit B; (ii) a content-neutral settlement website managed by the Notice and Claims

21

Administrator, and approved by counsel for the Parties, which will contain further information

22

about the Settlement and Claims process, including relevant pleadings; and (iii) nationwide

23

publication on the Internet through directed advertising to likely Settlement Class Members

24

containing or linking to the Summary of Class Action Settlement, without material variation from

25

the form attached as Exhibit C. The Class Notice shall comply with Rule 23 and due process.

26

70.

The Parties agree to notify each other and the Notice and Claims Administrator of

27

the receipt of any request for exclusion or objection to this Settlement within one (1) business day

28

of receipt.
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AMENDED CLASS ACTION SETTLEMENT AGREEMENT AND RELEASE

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1

71.

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

2

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

3

Settlement Fund.

4

72.

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

5

result of further proceedings on remand of any appeal with respect to the Settlement, or if the

6

Effective Date otherwise does not occur, the balance of the Notice and Administration Fund which

7

has not been expended pursuant to this Agreement, and the balance of the Settlement Fund,

8

including all earned or accrued interest, shall be returned to the NCAA within five (5) days, or as

9

soon as practicable, as set forth in this Agreement and in accordance with the Escrow Agreement.

10
11

VIII. RELEASES
73.

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

12

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

13

those provided in Paragraph 58) upon entry of District Court Final Approval Order and Judgment.

14

74.

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

15

Members who have not been excluded from the Settlement Class as provided in the Opt-Out List,

16

individually and on behalf of their heirs, estates, trustees, executors, administrators,

17

representatives, agents, successors, and assigns, and anyone claiming through them or acting or

18

purporting to act on their behalf, agree to forever release, discharge, hold harmless, and covenant

19

not to sue each and all of the Released Parties from each and all of the Released Claims, and by

20

operation of the Judgment shall have fully and finally released, relinquished, and discharged all

21

Released Claims against each and all of the Released Parties; and they further agree that they shall

22

not now or hereafter initiate, maintain, or assert any Released Claims against the Released Parties

23

in any other court action or before any administrative body, tribunal, arbitration panel, or other

24

adjudicating body. Without in any way limiting the scope of the release described in Paragraphs

25

33-34 and 73-78, this release covers, without limitation, any and all claims for attorneys’ fees,

26

costs, or disbursements incurred by Class Counsel or any other counsel representing the Keller

27

Named Plaintiffs or Settlement Class Members, or by the Keller Named Plaintiffs or Settlement

28

Class Members, or any of them, in connection with or related in any manner to the Lawsuits, the
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AMENDED CLASS ACTION SETTLEMENT AGREEMENT AND RELEASE

09-cv-1967 CW

1

Settlement of the Lawsuits, the administration of such Settlement, and/or the Released Claims,

2

except to the extent otherwise specified in the Agreement.

3

75.

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

4

who have not been excluded from the Settlement Class as provided in the Opt-Out List, shall be

5

permanently barred and enjoined from initiating, asserting, or prosecuting against the Released

6

Parties in any federal or state court or tribunal any and all Released Claims, as further provided in

7

Paragraph 50(m).

8

76.

9

The Keller Named Plaintiffs and the Settlement Class Members expressly

acknowledge that they are familiar with principles of law such as Section 1542 of the Civil Code of

10

the State of California and Section 20-7-11 of the South Dakota Codified Laws, which provide:

11

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.

12
13
14
15

77.

The Keller Named Plaintiffs and the Settlement Class Members hereby expressly

16

agree that to the extent the provisions, rights, and benefits of Section 1542 of the Civil Code of the

17

State of California and Section 20-7-11 of the South Dakota Codified Laws and all similar federal

18

or state laws, rights, rules, or legal principles of any other jurisdiction may be applicable herein,

19

they are hereby knowingly and voluntarily waived and relinquished by the Keller Named Plaintiffs

20

and the Settlement Class Members to the fullest extent permitted by law in connection with all

21

unknown claims constituting Released Claims, and the Keller Named Plaintiffs and the Settlement

22

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

23

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

24

Members acknowledge that they are aware that they may hereafter discover claims presently

25

unknown and unsuspected or facts in addition to or different from those which they now know or

26

believe to be true with respect to matters released herein. Nevertheless, the Keller Named

27

Plaintiffs and the Settlement Class Members acknowledge that a portion of the consideration

28

received herein is for a release with respect to future damages and complaints, whether resulting
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AMENDED CLASS ACTION SETTLEMENT AGREEMENT AND RELEASE

09-cv-1967 CW

1

from known injuries and consequences or from unknown injuries or unknown consequences of

2

known or unknown injuries, and state that it is the intention of the Keller Named Plaintiffs and the

3

Settlement Class Members in agreeing to this release fully, finally, and forever to settle and release

4

all matters and all claims that exist, hereafter may exist, or might have existed (whether or not

5

previously or currently asserted in any action), constituting Released Claims.

6

78.

Subject to Court approval, the Keller Named Plaintiffs, and all Settlement Class

7

Members who have not been excluded from the Settlement Class as provided in the Opt-Out List,

8

shall be bound by this Settlement Agreement, and all of their claims shall be dismissed with

9

prejudice and released, even if they never received actual notice of the Lawsuits or this Settlement.

10
11

IX.
79.

ADMINISTRATION OF THE SETTLEMENT FUND

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

12

approval of the Court, shall administer and identify Claims submitted by Settlement Class

13

Members, and shall calculate and oversee distribution of the Settlement Fund.

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15
16
17
18
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20
21
22
23
24
25
26
27

80.

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 Class Notice to
Settlement Class Members and, as allowed by the Court, locating Settlement Class
Members’ last-known addresses, soliciting Claims, assisting with the filing of
Claims, administering and distributing the Settlement Fund to the Settlement Class,
processing Claim Forms and any objections, processing requests for exclusion, and
escrow fees and costs, in accordance with the terms provided for the Notice and
Administration Fund in Paragraphs 63-69;
b. subject to the approval and further order(s) of the Court, and according to the terms
provided in Paragraph 57, to pay to the Keller Named Plaintiffs Incentive Awards
based on contributions and time expended assisting in the litigation, up to a
maximum of $5,000 for each Keller Named Plaintiff;
c. subject to the approval and further order(s) of the Court, and according to the terms
of Paragraph 58, to pay the Fee and Expense Award as ordered by the Court;
d. to pay Taxes and Tax Expenses owed by the Settlement Fund, according to the terms
in Paragraphs 55-56;
e. to pay any costs and expenses incurred in connection with the services provided by
the Escrow Agent; and

28
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AMENDED CLASS ACTION SETTLEMENT AGREEMENT AND RELEASE

09-cv-1967 CW

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 62,
or as otherwise ordered by the Court. No funds from the Net Settlement Fund shall
be disbursed until after the Effective Date.

1
2
3

81.

4

Settlement Class Members who are not on the Opt-Out List approved by the Court

5

shall be subject to and bound by the provisions of the Settlement Agreement, the releases contained

6

herein, and the Judgment with respect to all Released Claims, regardless of whether they seek or

7

obtain any distribution from the Settlement Fund.
82.

8
9

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

administration and distribution of the Settlement Fund. Neither the NCAA nor its counsel shall

10

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

11

any Plan of Allocation, the determination, administration, or calculation of Claims, the payment or

12

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

13

connection with any such matters.
83.

14
15

The NCAA shall have no responsibility for, or liability concerning, the appointment

of the Notice and Claims Administrator and any actions taken by it.
84.

16

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

17

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

18

Agreement as to all Settlement Class Members.
85.

19

No Settlement Class Member shall have any claim against the Keller Named

20

Plaintiffs, Class Counsel, or the Notice and Claims Administrator based on distributions made

21

substantially in accordance with this Settlement Agreement and/or orders of the Court. No

22

Settlement Class Member shall have any claim against the NCAA or its counsel relating to

23

distributions made under this Settlement.

24
25
26
27

X.

EFFECT OF DISAPPROVAL, CANCELLATION, OR TERMINATION OF
SETTLEMENT AGREEMENT
86.

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

Agreement, or does not enter the District Court Final Approval Order and Judgment that will be
agreed upon by the Parties, or if the Court enters the Judgment and appellate review is sought, and

28
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AMENDED CLASS ACTION SETTLEMENT AGREEMENT AND RELEASE

09-cv-1967 CW

1

on such review, the entry of Judgment is vacated, modified in any way, or reversed, or if the

2

District Court Final Approval Order does not otherwise become Final, then this Settlement

3

Agreement shall be cancelled and terminated, unless all Parties, in their sole discretion within thirty

4

(30) days from the date of such ruling, provide written notice to all other Parties hereto of their

5

intent to proceed with the Settlement under the terms of the Judgment as it may be modified by the

6

Court or any appellate court.

7

87.

The NCAA shall have the right to withdraw from the Settlement if the number of

8

Settlement Class Members who attempt to exclude themselves from the Settlement Class equals or

9

exceeds 1,000 potential Settlement Class Members. If the NCAA chooses to exercise this right, it

10

must do so within ten (10) days of receipt of the Notice and Claims Administrator’s opt-out list as

11

provided in Paragraph 98, by providing written notice to Class Counsel, as set forth in Paragraph

12

98.

13

88.

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

14

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

15

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

16

including as set forth in Paragraphs 86-90, then within five (5) business days after written notice is

17

sent by Class Counsel or counsel for Settling Defendant to all Parties hereto, the Notice and

18

Administration Fund, less any funds paid or expenses incurred but not yet paid, the Settlement

19

Fund, and any other cash deposited by the NCAA into the Escrow Account pursuant to Paragraph

20

54, shall be refunded to the NCAA, including interest earned or accrued.

21

89.

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

22

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

23

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

24

including those set forth in Paragraphs 86-90, then (a) the Settlement shall be without force and

25

effect upon the rights of the Parties hereto, and none of its terms shall be effective or enforceable,

26

with the exception of this Paragraph, which shall remain effective and enforceable; and (b) the

27

Parties shall be deemed to have reverted nunc pro tunc to their respective status as of the date and

28

time immediately before the execution of the Settlement Agreement (and the NCAA shall be
28
AMENDED CLASS ACTION SETTLEMENT AGREEMENT AND RELEASE

09-cv-1967 CW

1

refunded the amounts stated in Paragraph 88); (c) all Orders entered in connection with the

2

Settlement, including the certification of the Settlement Class, shall be vacated without prejudice to

3

any Party’s position on the issue of class certification or any other issue, in the Lawsuits or any

4

other action, and the Parties shall be restored to their litigation positions existing on the date of

5

execution of this Agreement; (d) the Keller Right of Publicity Claims shall be reasserted in the

6

TCAC; and (e) the Parties 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, all documents, orders, and other evidence relating to the Settlement, the

10

fact of their existence, any of their terms, any press release or other statement or report by the

11

Parties or by others concerning the Settlement Agreement, the Settlement, their existence, or their

12

terms, any negotiations, proceedings, acts performed, or documents executed pursuant to or in

13

furtherance of the Settlement Agreement or the Settlement shall not be offered, received, or

14

construed as evidence of a presumption, concession, or an admission of liability, of the

15

certifiability of a litigation class, or of any misrepresentation or omission in any statement or

16

written document approved or made, or otherwise used by any Person for any purpose whatsoever,

17

in any trial of these Lawsuits or any other action or proceedings.

18

90.

NCAA does not agree or consent to certification of the Settlement Class for any

19

purpose other than to effectuate the Settlement of the Lawsuits. If this Settlement Agreement is

20

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

21

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

22

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.

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AMENDED CLASS ACTION SETTLEMENT AGREEMENT AND RELEASE

09-cv-1967 CW

1

XI.

2

91.

PROCEDURES FOR REQUESTS FOR EXCLUSION

Settlement Class Members who wish to exclude themselves (or “opt out”) from the

3

Settlement Class must submit timely, written requests for exclusion. To be effective, such a

4

request must include the Settlement Class Member’s name and address, a clear and unequivocal

5

statement that the Settlement Class Member wishes to be excluded from the Settlement Class, and

6

the signature of the Settlement Class Member or the Legally Authorized Representative of the

7

Settlement Class Member. The request must be mailed to the Notice and Claims Administrator at

8

the address provided in the Notice of Settlement of Class Action and must be postmarked no later

9

than sixty (60) days after the Mailed Notice Date (the “Exclusion/Objection Deadline”). Requests

10

for exclusion must be exercised individually by the Settlement Class Member, not as or on behalf

11

of a group, class, or subclass, except that such exclusion requests may be submitted by a Settlement

12

Class Member’s Legally Authorized Representative.

13

92.

The Notice and Claims Administrator shall promptly log each request for exclusion

14

that it receives and provide copies of the log and all such requests for exclusion to Class Counsel

15

and counsel for the NCAA, as requested.

16

93.

The Notice and Claims Administrator shall prepare a list of all Persons who timely

17

and properly requested exclusion from the Settlement Class and shall, before the Fairness Hearing,

18

submit an affidavit to the Court attesting to the accuracy of the list.

19

94.

All Settlement Class Members who are not included in the Opt-Out List approved

20

by the Court shall be bound by this Agreement, and all their claims shall be dismissed with

21

prejudice and released as provided for herein, even if they never received actual notice of the

22

Lawsuits or this proposed Settlement.

23

95.

The Notice and Claims Administrator, in its sole discretion, shall determine whether

24

a request for exclusion was timely submitted. The Settlement Administrator’s decision shall be

25

final, binding, and nonappealable.

26
27

96.

The Keller Named Plaintiffs agree not to request exclusion from the Settlement

Class.

28
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AMENDED CLASS ACTION SETTLEMENT AGREEMENT AND RELEASE

09-cv-1967 CW

1

97.

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

2

do both. Any Settlement Class Member who submits a timely request for exclusion may not file an

3

objection to the Settlement or submit a Claim, and shall be deemed to have waived any rights or

4

benefits under the Settlement Agreement.

5

98.

No later than ten (10) business days after the Exclusion/Objection Deadline, the

6

Notice and Claims Administrator shall provide to Class Counsel and counsel for the NCAA a

7

complete opt-out list together with copies of the opt-out requests. Notwithstanding any other

8

provision of this Settlement Agreement, if more than 1,000 Settlement Class Members opt out of

9

the Settlement, the NCAA at its sole and exclusive option may elect to rescind and revoke the

10

entire Settlement Agreement, thereby rendering the Settlement null and void in its entirety, by

11

sending written notice that it revokes the Settlement pursuant to this Paragraph to Class Counsel

12

within ten (10) business days following receipt of the Notice and Claims Administrator’s opt-out

13

list.

14

XII.

15

99.

PROCEDURES FOR OBJECTIONS

Any Settlement Class Member or governmental entity that wishes to object to the

16

fairness, reasonableness, or adequacy of this Agreement or the proposed Settlement must provide

17

to the Notice and Claims Administrator (who shall forward it to Class Counsel and Counsel for the

18

NCAA), and file with the Court, a timely statement of the objection, as set forth in Paragraphs 100-

19

103.

20

100.

To be timely, the objection must be postmarked and mailed to the Notice and

21

Claims Administrator, and filed with the Court, no later than sixty (60) days after the Mailed

22

Notice Date (the “Exclusion/Objection Deadline”).

23

101.

The objection must contain at least the following: (1) the objector’s full name,

24

address, telephone, and signature; (2) a heading that refers to the Lawsuits by name and case

25

number; (3) a statement of the specific legal and factual basis for each objection argument; and (4)

26

a statement whether the objecting person or entity intends to appear at the Fairness Hearing, either

27

in person or through counsel and, if through counsel, a statement identifying that counsel by name,

28

bar number, address, and telephone number. All objections shall be signed by the objecting
31
AMENDED CLASS ACTION SETTLEMENT AGREEMENT AND RELEASE

09-cv-1967 CW

1

Settlement Class Member (or his Legally Authorized Representative), even if the Settlement Class

2

Member is represented by counsel.

3

102.

Any Settlement Class Member (and/or his attorney), or any attorney working for a

4

governmental entity, who wishes to appear in the Lawsuits to object to the settlement or who is

5

representing or assisting a Settlement Class Member in connection with any objection to the

6

settlement (including, but not limited to, by drafting or preparing papers for an objection on behalf

7

of a Settlement Class Member) must provide to the Notice and Claims Administrator (who shall

8

forward it to Class Counsel and counsel for the NCAA) and file with the Clerk of the Court a

9

notice of appearance no later than sixty (60) days after the Mailed Notice Date.

10

103.

The right to object to the proposed settlement must be exercised individually by a

11

Settlement Class Member or his attorney, and not as a member of a group, class, or subclass,

12

except that such objections may be submitted by a Settlement Class Member’s Legally Authorized

13

Representative.

14

104.

Any Settlement Class Member who does not file a timely notice of intent to object

15

in accordance with Paragraphs 100-103 shall waive the right to object or to be heard at the Fairness

16

Hearing and shall be forever barred from making any objection to the proposed Settlement, the

17

Plan of Allocation, the Fee and Expense Award, and the Incentive Awards. Settlement Class

18

Members who object to the proposed Settlement shall remain Settlement Class Members, and shall

19

be deemed to have voluntarily waived their right to pursue an independent remedy against the

20

NCAA and the Released Parties. To the extent any Settlement Class Member objects to the

21

proposed Settlement, and such objection is overruled in whole or in part, such Settlement Class

22

Member will be forever bound by the District Court Final Approval Order and Judgment.

23

105.

In the event that any Person objects to or opposes this proposed Settlement, or

24

attempts to intervene in or otherwise enter the Lawsuits, the Parties agree to use their best efforts to

25

cooperate in the defense of the Settlement. Notwithstanding the foregoing, it shall be Class

26

Counsel’s sole responsibility to respond to any objections made with respect to any application for

27

the Fee and Expense and Incentive Awards.

28
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AMENDED CLASS ACTION SETTLEMENT AGREEMENT AND RELEASE

09-cv-1967 CW

XIII. ADDITIONAL PROVISIONS

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

106.

All of the Exhibits to this Agreement are an integral part of the Settlement and are

incorporated by reference as though fully set forth herein.
107.

The Keller Named Plaintiffs and Class Counsel acknowledge that an adequate

factual record has been established that supports the Settlement and, apart from the limited
discovery described in the next sentence, hereby waive any right to conduct further discovery to
assess or confirm the Settlement. Notwithstanding the prior sentence, the Parties agree to
reasonably cooperate with respect to limited confirmatory discovery to be agreed upon related to
the last-known addresses of Settlement Class Members.
108.

Unless otherwise noted, all references to “days” in this Agreement shall be to

calendar days. In the event any date or deadline set forth in this Agreement falls on a weekend or
federal legal holiday, such date or deadline shall be on the first business day thereafter.
109.

This Agreement supersedes all prior negotiations and agreements and may be

amended or modified only by a written instrument signed by counsel for all Parties or the Parties’
successors-in-interest.
110.

The Parties reserve the right, subject to the Court’s approval, to make any

reasonable extensions of time that might be necessary to carry out any of the provisions of this
Agreement. Such extensions must be in writing to be enforceable.
111.

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

any of terms of the Settlement Agreement, any press release or other statement or report by the
Parties or by others concerning the Settlement Agreement or the Settlement, and/or any
negotiations, proceedings, acts performed, or documents executed pursuant to or in furtherance of
the Settlement Agreement or the Settlement: (i) may not be deemed to be, may not be used as, and
do not constitute an admission or evidence of the validity of any Released Claims or of any
wrongdoing or liability of the NCAA; and (ii) may not be deemed to be, may not be used as, and
do not constitute an admission or evidence of any fault, wrongdoing, or omission by the NCAA in
any trial, civil, criminal, or administrative proceeding of the Lawsuits or any other action or
proceedings in any court, administrative agency, or other tribunal.
33
AMENDED CLASS ACTION SETTLEMENT AGREEMENT AND RELEASE

09-cv-1967 CW

1

112.

The Released Parties shall have the right to file the Settlement Agreement, the

2

District Court Final Approval Order and Judgment, and any other documents or evidence relating

3

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

4

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

5

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

6

defense or counterclaim.

7

113.

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

8

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

9

resulted from numerous arm’s-length mediations, and reflect a settlement that was reached

10

voluntarily based upon adequate information and sufficient discovery and after consultation with

11

experienced legal counsel.

12

114.

The Keller Named Plaintiffs and Class Counsel have concluded that the Settlement

13

set forth herein constitutes a fair, reasonable, and adequate resolution of the claims that the Keller

14

Named Plaintiffs asserted against the NCAA, including the claims on behalf of the Settlement

15

Class, and that it promotes the best interests of the Settlement Class.

16

115.

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

17

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

18

Agreement.

19

116.

The Parties agree that the Keller Plaintiffs and Class Counsel are not required to

20

return any documents produced by Settling Defendant until the final resolution of the Lawsuits.

21

Within sixty (60) days following the Effective Date, Class Counsel shall return to the NCAA all

22

documents produced in the Lawsuits, or confirm in writing that all such documents have been

23

destroyed, in a manner consistent with the terms of any applicable Protective Order in any of the

24

Lawsuits, and to the extent practicable.

25

117.

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

26

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

27

Agreement.

28
34
AMENDED CLASS ACTION SETTLEMENT AGREEMENT AND RELEASE

09-cv-1967 CW

1

118.

This Settlement Agreement, including its Exhibits, constitutes the entire agreement

2

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

3

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

4

and covenants contained and memorialized in this Settlement Agreement and its exhibits.

5

119.

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

6

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

7

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

8

themselves original signed counterparts.

9
10
11

120.

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.
121.

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

12

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

13

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

14

consolidate, or reorganize.

15

122.

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

16

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

17

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

18

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

19

Settlement Agreement.

20
21
22

123.

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.
124.

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

23

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

24

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

25

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

26

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

27

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

28

jurisdiction of the United States District Court for the Northern District of California for all
35
AMENDED CLASS ACTION SETTLEMENT AGREEMENT AND RELEASE

09-cv-1967 CW

1

purposes related to this Settlement Agreement. This Paragraph relates solely to the law governing

2

this Settlement Agreement and any action based thereon, and nothing in this Paragraph shall be

3

construed as an admission or finding that California, Indiana, or New Jersey law applies to the

4

Released Claims of any Settlement Class Members who reside outside of those respective states.

5

125.

The Court shall retain continuing and exclusive jurisdiction over the Parties to this

6

Settlement Agreement for the purpose of the administration and enforcement of this Settlement

7

Agreement.

8

126.

9
10
11
12

The headings used in this Settlement Agreement are for the convenience of the

reader only, and shall not affect the meaning or interpretation of this Settlement Agreement.
127.

In construing this Settlement Agreement, the use of the singular includes the plural

(and vice-versa) and the use of the masculine includes the feminine (and vice-versa).
128.

Each Party to this Settlement Agreement warrants that he, she, or it is acting upon

13

his or its independent judgment and upon the advice of his or its counsel, and not in reliance upon

14

any warranty or representation, express or implied, of any nature of any kind by any other Party,

15

other than the warranties and representations expressly made in this Settlement Agreement.

16

129.

Signatory counsel warrant that they are fully authorized to execute this Agreement

17

on behalf of their respective co-counsel listed below. Each counsel signing this Settlement

18

Agreement on behalf of his/her clients who are unable to sign the Agreement on the date that it is

19

executed by other Parties represents that such counsel is fully authorized to sign this Settlement

20

Agreement on behalf of his/her clients; provided, however, that all Parties who have not executed

21

this Agreement on the date that it is executed by the other Parties shall promptly thereafter execute

22

this Agreement, and in any event no later than one (1) week after the Agreement has been executed

23

by counsel.

24

///

25

///

26

///

27

///

28

///
36
AMENDED CLASS ACTION SETTLEMENT AGREEMENT AND RELEASE

09-cv-1967 CW

EXHIBIT A

1
2
3
4
5
6
7
8
9
10

Steve W. Berman (Pro Hac Vice)
HAGENS BERMAN SOBOL SHAPIRO LLP
1918 Eighth Avenue, Suite 3300
Seattle, Washington 98101
Telephone: [phone]
Facsimile: [phone]
[e-mail]
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]
[e-mail]
[e-mail]
Counsel for Plaintiffs

11
12

UNITED STATES DISTRICT COURT

13

NORTHERN DISTRICT OF CALIFORNIA

14
15
16

OAKLAND DIVISION
SAMUEL MICHAEL KELLER, et al., on behalf
of themselves and all others similarly situated,

17

Plaintiffs,

18

v.

19
20
21
22
23
24
25
26
27
28

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

Case No. 4:09-cv-1967 CW
[PROPOSED]
ORDER GRANTING PRELIMINARY
APPROVAL OF CLASS ACTION
SETTLEMENT
Judge: Hon. Claudia Wilken
Courtroom: 2, 4th Floor
Complaint Filed: May 5, 2009

1

Plaintiffs Samuel Michael Keller, Bryan Cummings, LaMarr Watkins, and Bryon Bishop

2

(the “Keller Named Plaintiffs”), individually and as representatives of the Settlement Class defined

3

in Paragraph 4 below, and Defendant National Collegiate Athletic Association (“NCAA”) have

4

entered into an Amended Class Action Settlement Agreement and Release, including the Exhibits

5

incorporated therein (the “Settlement Agreement”), to settle the above-captioned lawsuit, including

6

Bishop v. Electronic Arts, Inc., et al., No. 4:09-cv-04128-CW (the “Lawsuits”). The Settlement

7

Agreement sets forth the terms and conditions for a proposed Settlement and dismissal with

8

prejudice of the Lawsuits.

9

On June 30, 2014, the Parties submitted to the Court their original proposed settlement

10

agreement and related papers (Dkt. 1138). On July 3, 2014, the Court conducted a telephone status

11

hearing to provide its comments on those papers. As a result of that status hearing, the Parties

12

submitted their current Settlement Agreement and related preliminary approval papers.

13

This Court also has before it a motion for preliminary approval of a proposed class action

14

settlement in In re NCAA Student-Athlete Name and Likeness Licensing Litigation, No. 4:09-cv-

15

1967-CW (NC), between Electronic Arts Inc. (“EA”), Collegiate Licensing Company LLC

16

(“CLC”), and various named plaintiffs (the “EA Videogame Settlement”). The two proposed class

17

action settlements both concern the alleged use of NCAA men’s football and basketball players’

18

names, images, and likenesses in certain NCAA-Branded Videogames manufactured and

19

distributed by EA. Accordingly, the parties in both proposed settlements are attempting, to the

20

extent feasible, to coordinate the notice and claims administration of both settlements. Because the

21

two settlements are separate, however, the Court will issue separate orders in each settlement, and

22

will evaluate each proposed settlement on its own terms.

23

Regarding the proposed Settlement in the Keller and Bishop cases (i.e., the Lawsuits), the

24

Court has carefully considered all filings relating to the Settlement Agreement, the arguments of

25

counsel, and the record in this case, and is otherwise advised in the premises. The Court hereby

26

gives its preliminary approval to the Settlement and the Settlement Agreement; finds that the

27

Settlement and Settlement Agreement are sufficiently fair, reasonable, and adequate to allow

28

dissemination of notice of the Settlement to the Settlement Class and to hold a Fairness Hearing;
1
[PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

09-cv-1967 CW

1

orders that Class Notice be sent to the Settlement Class in accordance with the Settlement

2

Agreement and this Order; and schedules a Fairness Hearing to determine whether the proposed

3

Settlement is fair, reasonable, and adequate.

4

IT IS HEREBY ORDERED AND ADJUDGED:

5

1.

6
7
8
9

The Settlement Agreement is hereby incorporated by reference in this Order, and all

terms and phrases used in this Order shall have the same meaning as in the Settlement Agreement.
2.

This Court has personal jurisdiction over all Settlement Class Members and subject

matter jurisdiction to approve the Settlement Agreement.
3.

The Court preliminarily approves the Settlement Agreement and finds that the

10

proposed Settlement is sufficiently fair, reasonable, and adequate to warrant providing notice to the

11

Settlement Class.

12

4.

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

The Court preliminarily certifies for settlement purposes only the following

Settlement Class pursuant to Federal Rule of Civil Procedure 23(b)(3):
All NCAA Division I football and men’s basketball players (1) listed on a
roster published or issued by a school whose team was included in an NCAABranded Videogame originally published or distributed from May 4, 2003 through
[date of preliminary approval], and (2) whose assigned jersey number appears on a
virtual player in the software, or whose photograph was otherwise included in the
software.
Excluded from the Settlement 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
immediate family members; and the judicial officers and associated court staff
assigned to the Lawsuits and their immediate family members.
The NCAA and the Released Parties shall retain all rights to assert that the Lawsuits may not be
certified as a class action except for settlement purposes.
5.

The Court finds, for purposes of preliminary approval and for settlement purposes

only, that (a) Members of the Settlement Class are so numerous as to make joinder of all
Settlement Class Members impracticable; (b) there are questions of law or fact common to
Members of the Settlement Class; (c) the claims of the Keller Named Plaintiffs are typical of the
claims of the Settlement Cass Members; (d) the Keller Named Plaintiffs and Class Counsel will
fairly and adequately protect the interests of the Settlement Class Members; (e) questions of law or
2
[PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

09-cv-1967 CW

1

fact common to the Settlement Class Members predominate over questions affecting only

2

individual Settlement Class Members; and (f) a class action is superior to other available methods

3

for the fair and efficient adjudication of the controversy.

4
5
6
7
8
9
10
11
12
13

6.

The Court appoints the Keller Named Plaintiffs as representatives of the Settlement

7.

The Court appoints Hagens Berman Sobol Shapiro LLP and The Paynter Law Firm

Class.

PLLC as Class Counsel.
8.

The Court appoints ______________________________ as the Notice and Claims

Administrator, which shall administer the Settlement in accordance with the terms and conditions
of this Order and the Settlement Agreement.
9.

The Court has reviewed and approves the Notice of Settlement of Class Action, the

content of which shall be without material alteration from Exhibit B to the Settlement Agreement.
10.

The Court also approves the Claim Form, the content of which shall be without

14

material alteration from Exhibit D to the Settlement Agreement. To be considered timely, a Claim

15

Form must be submitted by a Settlement Class Member or that Settlement Class Member’s Legally

16

Authorized Representative so that it is postmarked and mailed to the Notice and Claims

17

Administrator, or submitted online via the settlement website, by no later than

18

_______________________ . Any Claim Form postmarked or submitted after this date shall be

19

untimely and invalid. A Settlement Class Member may choose to file a single Claim Form to be

20

considered for payment in both the EA Videogame Settlement and this Settlement, unless the

21

Settlement Class Member has excluded himself from one of the two settlements (in which case, his

22

Claim Form will be considered for payment only in the settlement from which he did not exclude

23

himself), or unless the Settlement Class Member indicates on the Claim Form that he wishes to

24

submit a claim in only one settlement.

25

11.

The Court approves the Settlement Agreement’s Class Notice plan. As part of that

26

Class Notice plan, the NCAA will request that its member institutions and affiliated alumni

27

associations provide to the Notice and Claims Administrator reasonably ascertainable information

28

regarding the names and last-known addresses of NCAA football and basketball players who were
3
[PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

09-cv-1967 CW

1

listed on a roster published or issued by a school whose team was included in an NCAA-Branded

2

Videogame originally published or distributed during the Keller Right of Publicity Settlement

3

Class Period. To the extent that a member institution or affiliated alumni association declines to

4

provide such information, Class Counsel shall endeavor in good faith to obtain such information,

5

including when necessary by subpoena to such member institution or affiliated alumni association

6

(to the extent Class Counsel have not already done so), and shall forward any information received

7

to the Notice and Claims Administrator. All names and addresses obtained through these sources

8

shall be protected as confidential and not used for purposes other than the notice and administration

9

of this Settlement, unless otherwise required by law or court order. Before mailing the Notice of

10

Settlement of Class Action, the Claims Administrator shall follow the procedures for updating the

11

addresses set out in Paragraph 65 of the Settlement Agreement.

12

12.

The Parties and the Notice and Claims Administrator shall use their best efforts to

13

complete the mailing of the Notice of Settlement of Class Action to potential Settlement Class

14

Members within one hundred twenty (120) days after entry of this Order (__________________)

15

(the “Mailed Notice Date”). The Court further directs the Notice and Claims Administrator to re-

16

mail any mailings returned as undeliverable in accordance with the procedures in Paragraph 66 of

17

the Settlement Agreement. The Notice and Claims Administrator shall file proof of mailing of the

18

Notice of Settlement of Class Action at or before the Fairness Hearing.

19

13.

In addition to the Notice of Class Action Settlement described above, the Court

20

directs the Notice and Claims Administrator to establish a content-neutral settlement website as

21

described in Paragraphs 61 and 69 of the Settlement Agreement. The website shall include, at a

22

minimum, copies of the Settlement Agreement, the Notice of Settlement of Class Action, and the

23

Preliminary Approval Order; provide an online means of submitting a Claim Form; identify

24

important deadlines and provide answers to frequently asked questions; and may be amended as

25

appropriate during the course of the Settlement administration.

26

14.

In addition, the Court orders the Parties to implement the plan for publication notice

27

described in Paragraph 69 of the Settlement Agreement. The Court has reviewed and approves the

28

Summary Notice of Settlement of Class Action, the content of which shall be without material
4
[PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

09-cv-1967 CW

1

alteration from Exhibit C to the Settlement Agreement.

2

15.

The Court finds that the procedures outlined in the Settlement Agreement for

3

identifying potential Settlement Class Members and providing notice to them are reasonable and

4

the best practicable notice under the circumstances and an appropriate and sufficient effort to locate

5

current addresses for potential Settlement Class Members such that no additional efforts to do so

6

shall be required.

7

16.

The Court directs the Notice and Claims Administrator to maintain a toll-free VRU

8

telephone system containing recorded answers to frequently asked questions, along with an option

9

permitting Settlement Class Members to speak to live operators or leave messages in a voicemail

10
11

box.
17.

The Court finds that the Class Notice plan, including the form, content, and method

12

of dissemination of the Class Notice to Settlement Class Members as described in the Settlement

13

Agreement, (i) is the best practicable notice; (ii) is reasonably calculated, under the circumstances,

14

to apprise Settlement Class Members of the pendency of the Lawsuits and of their right to object to

15

or exclude themselves from the proposed Settlement; (iii) is reasonable and constitutes due,

16

adequate, and sufficient notice to all Persons entitled to receive notice; and (iv) meets all applicable

17

requirements of Federal Rule of Civil Procedure 23 and due process.

18

18.

The Court approves the procedures set forth in the Settlement Agreement and the

19

Notice of Settlement of Class Action for exclusions from and objections to the Settlement. Unlike

20

Claim Forms, exclusion requests and objections must be submitted separately for this Settlement

21

and for the EA Videogame Settlement.

22

19.

Any Settlement Class Member who wishes to exclude himself from the Settlement

23

Class must comply with the terms set forth in the Settlement Agreement and the Notice of

24

Settlement of Class Action. To be considered timely, a request for exclusion must be mailed to the

25

Notice and Claims Administrator postmarked no later than _____________________ (60 days

26

after the Mailed Notice Date). Requests for exclusion must be exercised individually by a

27

Settlement Class Member, not as or on behalf of a group, class, or subclass, except that such

28

exclusion requests may be submitted on behalf of an individual Settlement Class Member by that
5
[PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

09-cv-1967 CW

1
2

Settlement Class Member’s Legally Authorized Representative.
20.

Any Settlement Class Member who does not submit a timely, written request for

3

exclusion from the Settlement Class will be bound by all proceedings, orders, and judgments in the

4

Lawsuits, even if the Settlement Class Member has previously initiated or subsequently initiates

5

individual litigation or other proceedings encompassed by the Released Claims, and even if such

6

Settlement Class Member never received actual notice of the Lawsuits or this proposed Settlement.

7

21.

The Court preliminarily enjoins all Settlement Class Members and their Legally

8

Authorized Representatives, unless and until they submit a timely request for exclusion pursuant to

9

the Settlement Agreement, (i) from filing, commencing, prosecuting, intervening in, or

10

participating as plaintiff, claimant, or class member in any other lawsuit or administrative,

11

regulatory, arbitration, or other proceeding in any jurisdiction based on the Released Claims;

12

(ii) from filing, commencing, or prosecuting a lawsuit or administrative, regulatory, arbitration, or

13

other proceeding as a class action on behalf of any Settlement Class Members (including by

14

seeking to amend a pending complaint to include class allegations or seeking class certification in a

15

pending action), based on the Released Claims; and (iii) from attempting to effect an opt-out of a

16

group, class, or subclass of individuals in any lawsuit or administrative, regulatory, arbitration, or

17

other proceeding based on the Released Claims.

18

22.

Before the Fairness Hearing, the Notice and Claims Administrator shall file with the

19

Court a list of all Settlement Class Members who submitted timely requests for exclusion, and also

20

file an affidavit or declaration attesting to the accuracy of that list.

21

23.

Each Settlement Class Member who has not submitted a timely request for

22

exclusion from the Settlement Class, and any governmental entity, who wishes to object to the

23

fairness, reasonableness, or adequacy of the Settlement Agreement or any term or aspect of the

24

proposed settlement must mail to the Notice and Claims Administrator (who shall forward it to

25

Class Counsel and Counsel for the NCAA) and file with the Court no later than

26

____________________________ (60 days after the Mailed Notice Date) a statement of the

27

objection, as well as the specific legal and factual reasons for each objection, or be forever barred

28

from objection. The objection must comply with Paragraphs 99-105 of the Settlement Agreement
6
[PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

09-cv-1967 CW

1

and the Notice of Settlement of Class Action, and contain at least the following: (1) the objector’s

2

full name, address, telephone number, and signature; (2) a heading that refers to the Lawsuits by

3

case name and number; (3) a statement of the specific legal and factual basis for each objection;

4

and (4) a statement whether the objecting Person or entity intends to appear at the Fairness

5

Hearing, either in person or through counsel and, if through counsel, a statement identifying that

6

counsel by name, bar number, address, and telephone number. All objections shall be signed by

7

the objecting Settlement Class Member (or his Legally Authorized Representative), even if the

8

Settlement Class Member is represented by counsel.

9

24.

Any attorney hired by, representing, or assisting (including, but not limited to, by

10

drafting or preparing papers for a Settlement Class Member) a Settlement Class Member or

11

governmental entity for the purpose of objecting to any term or aspect of the Settlement Agreement

12

or to the proposed Settlement shall mail to the Settlement Administrator (who shall forward it to

13

Class Counsel and Counsel for the NCAA) and file with the Clerk of the Court a notice of

14

appearance no later than __________________ (60 days after the Mailed Notice Date).

15

25.

The right to object to the proposed Settlement must be exercised individually by a

16

Settlement Class Member or governmental entity or his or its attorney, and not as a member of a

17

group, class, or subclass, except that such objections may be submitted by a Settlement Class

18

Member’s Legally Authorized Representative.

19

26.

The Court directs the Notice and Claims Administrator to rent a post office box to

20

be used for receiving objections, notices of intention to appear, and any other settlement-related

21

communications.

22

27.

The Court directs the Notice and Claims Administrator promptly to furnish Class

23

Counsel and Counsel for NCAA copies of any and all objections, motions to intervene, notices of

24

intention to appear, and other communications that come into its possession (except as otherwise

25

expressly provided in the Settlement Agreement).

26

28.

The Court orders that the certification of the Settlement Class and preliminary

27

approval of the proposed Settlement, and all actions associated with them, are undertaken on the

28

condition that they shall be vacated if the Settlement Agreement is terminated or disapproved in
7
[PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

09-cv-1967 CW

1

whole or in part by the Court, or any appellate court and/or other court of review, or if any of the

2

Parties invokes the right to withdraw from the Settlement as provided in Paragraphs 86-87 of the

3

Settlement Agreement, in which event the Settlement Agreement and the fact that it was entered

4

into shall not be offered, received, or construed as an admission or as evidence for any purpose,

5

including but not limited to an admission by any Party of liability or non-liability or of any

6

misrepresentation or omission in any statement or written document approved or made by any

7

Party, or of the certifiability of a litigation class, or otherwise be used by any Person for any

8

purpose whatsoever, in any trial of these Lawsuits or any other action or proceedings, as further

9

provided in the Settlement Agreement.

10

29.

By ____________________ (21 days after entry of this Order), NCAA shall pay

11

into the Escrow Account the sum of $1,000,000, to be used by the Notice and Claims

12

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

13

notice of the Settlement to Settlement Class Members. The Escrow Account shall be governed by

14

the terms of the Settlement Agreement and the Escrow Agreement to be negotiated by the Parties.

15

30.

The Court stays all proceedings in the Lawsuits until further order of the Court,

16

except that the Parties may conduct such limited proceedings as may be necessary to implement the

17

proposed Settlement or to effectuate the terms of the Settlement Agreement.

18

31.

Class Counsel shall file a petition for fees, expenses, and incentive awards by

19

____________________________ (21 days before the Exclusion/Objection Deadline). Class

20

Counsel shall file reply briefs and any other supplemental final approval papers by

21

___________________________ (14 days before the Fairness Hearing).

22

32.

The Fairness Hearing shall be held at ____ __.m. on

23

______________________________, for the purpose of determining (a) whether the Settlement is

24

fair, reasonable, and adequate and should be finally approved by the Court; (b) the merit of any

25

objections to the Settlement; (c) the requested Fee and Expense Award to Class Counsel; (d) the

26

requested Incentive Awards to the Keller Named Plaintiffs; and (e) entry of the District Court Final

27

Approval Order and Judgment approving the Settlement.

28

33.

The Court may, for good cause, extend any of the deadlines set forth in this Order
8

[PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

09-cv-1967 CW

1

without further notice to the Settlement Class.

2

Dated:________________________________

_________________________________

3
4

Chief Judge Claudia Wilken

5
6
7
8
9
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13
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19
20
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22
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24
25
26
27
28
9
[PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

09-cv-1967 CW

EXHIBIT B

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
If You Were Listed on a Roster of an NCAA Division I Men’s
Football or Basketball Team, and That Team Was Included in One
of EA’s Videogames Between May 4, 2003 and [preliminary
approval date], You Could Be Affected by Two Proposed Class
Action Settlements.
A federal court authorized this Notice. This is not a solicitation from a lawyer.
If you are a Class Member, your legal rights are affected whether you act or don’t act.

Please Read This Notice and the Enclosed Claim Form Carefully
This Notice provides information about two proposed class action settlements concerning the alleged use of
National Collegiate Athletic Association (“NCAA”) men’s football and basketball players’ names, images, and
likenesses in certain NCAA-Branded Videogames that were manufactured and distributed by Electronic Arts Inc.
(“EA”).
The EA Videogame Settlement:
There are class action lawsuits pending against EA and
Collegiate Licensing Company LLC (“CLC”). These lawsuits
involve, among other things, claims by student-athletes that EA
and CLC (representing various NCAA member schools and
sometimes the NCAA) violated their legal rights by allegedly
licensing, using, and/or selling athletes’ names, images, and
likenesses in EA’s NCAA-Branded Videogames. EA and CLC
deny these allegations and deny any other wrongdoing. The
Court has not ruled on the merits of these claims. See Question
2, below, for more information about these lawsuits.
A proposed settlement of $40 million has been reached between
EA and the student-athletes who brought these cases. If the
Court approves it, the EA Videogame Settlement will resolve
these cases as to both EA and CLC.
The NCAA Videogame Settlement:

Are these settlements related to the trial
against the NCAA I’ve heard about?

You may have heard recently about a trial in a
case by student-athletes (led by Edward
O’Bannon) against the NCAA. Although the
trial involved claims that the NCAA used
student-athlete likenesses without permission,
those claims were against the NCAA only for
violations of antitrust laws. Also unlike the
claims being resolved by this settlement, the
claims in the trial did not involve claims for
cash payments.
[Alt. #1: The trial in that case ended on ___,
and as of the date of this Notice, the Court has
not yet made a decision about the outcome.]
[Alt. #2: The trial in that case ended on ___,
and the Court ruled in favor of the studentathletes.] [Alt. #3: The trial in that case ended
on ___, and the Court ruled in favor of the
NCAA.]

There are class action lawsuits pending against the NCAA.
These lawsuits involve, among other things, claims by studentathletes that the NCAA violated their legal rights by allegedly
participating in the license, use, and/or sale of athletes’ names,
images, and likenesses in EA’s NCAA-Branded Videogames. The NCAA denies these allegations and denies
any other wrongdoing. The Court has not yet ruled in favor of either the NCAA or the student-athletes on these
claims. See Question 2, below, for more information on these lawsuits.
A proposed settlement of $20 million has been reached between the NCAA and the student-athletes who brought
some of these cases. If the Court approves it, the NCAA Videogame Settlement will resolve these cases as to the
NCAA.
YOU MAY BE A MEMBER OF ONE OR BOTH CLASS ACTION SETTLEMENTS. Although the two
proposed settlements are similar in some respects, they contain different provisions, and it is possible that the
Court could rule differently on each settlement. Please read this entire Notice carefully to make sure that you
understand both settlements.
QUESTIONS? CALL 1-___-___-____ TOLL-FREE, OR VISIT www.________________settlement.com.
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The Court in charge of these cases still has to decide whether to approve these settlements, and payments will
only be made if the Court approves the settlements, and after any appeals are resolved. Please be patient, as this
process can take a long time.
SUMMARY OF YOUR LEGAL RIGHTS AND OPTIONS IN THE TWO SETTLEMENTS

SUBMIT A CLAIM FORM

EXCLUDE YOURSELF FROM
ONE OR BOTH SETTLEMENTS

•
•
•
•

This is the only way to get a payment under the settlements.
You can submit one Claim Form for both settlements.
See the enclosed Claim Form for more details.
Requesting or Receiving a Payment Under Either of These
Settlements Will NOT Affect Your NCAA Eligibility.

• Excluding yourself means you get no payment.
• This is the only way you can ever be a part of any other case against EA,
CLC, or the NCAA about the claims being resolved by these settlements.
• You must submit a separate request for exclusion for each settlement.
• See Questions 16–18.

OBJECT TO ONE OR
BOTH SETTLEMENTS

• Write to the Court about why you don’t like the settlements.
• You must submit a separate objection for each settlement.
• You cannot object in order to ask the Court for a higher payment for
yourself personally, although you can object to the payment terms (or
any other terms) that apply generally to the Class.
• See Questions 21–22.

GO TO A HEARING

• Ask to speak in Court about the fairness of the settlements.
• The Court will hold a hearing for both settlements on the same day to
decide whether to approve the settlements.
• See Question 23.

DO NOTHING

• Get no payment. Give up rights.

QUESTIONS? CALL 1-___-___-____ TOLL-FREE, OR VISIT www.________________settlement.com.
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WHAT THIS NOTICE CONTAINS
BASIC INFORMATION ...................................................................................................................................... 4

1.
  Why did I get this Notice? .................................................................................................................. 4

2.
  What are these lawsuits about? ........................................................................................................... 4

3.
  What is a class action and who are the Parties? .................................................................................. 4

4.
  Why is there a settlement? .................................................................................................................. 5

WHO IS IN THE TWO SETTLEMENTS........................................................................................................... 5

5.
  How do I know if I am part of the settlements? What are the Class definitions? ............................... 5

6.
  What is an “NCAA-Branded Videogame”?........................................................................................ 5

7.
  I’m still not sure if I am included. ....................................................................................................... 5

THE SETTLEMENT BENEFITS—WHAT YOU GET IF YOU QUALIFY .................................................. 6

8.
  What do the proposed settlements provide? ....................................................................................... 6

9.
  How will claim payments be calculated? ............................................................................................ 6

10.
  How much will my payment be? ....................................................................................................... 7

HOW YOU GET A PAYMENT—SUBMITTING A CLAIM FORM .............................................................. 9

11.
  How can I get a payment? ................................................................................................................. 9

12.
  When will I get my payment? .......................................................................................................... 10

13.
  What if I disagree with the amount of my payment?....................................................................... 10

14.
  What am I giving up to get a payment or stay in the settlements? .................................................. 10

15.
  Will getting a payment in either of the settlements affect my NCAA eligibility? .......................... 10

EXCLUDING YOURSELF (“OPTING OUT”) FROM ONE OR BOTH SETTLEMENTS ....................... 11

16.
  How do I get out of one or both settlements? .................................................................................. 11

17.
  If I don’t exclude myself, can I sue the Defendants for the same thing later? ................................ 11

18.
  If I exclude myself, can I get a payment from the settlements? ...................................................... 11

THE LAWYERS REPRESENTING YOU........................................................................................................ 12

19.
  Do I have a lawyer in these cases? .................................................................................................. 12

20.
  How will the lawyers be paid? Are the Class Representatives being paid? .................................... 12

OBJECTING TO ONE OR BOTH SETTLEMENTS ...................................................................................... 13

21.
  How do I tell the Court that I don’t like the settlement(s)? ............................................................. 13

22.
  What’s the difference between objecting and excluding yourself? ................................................. 14

THE COURT’S FAIRNESS HEARING ........................................................................................................... 14

23.
  When and where will the Court decide whether to approve the settlements? ................................. 14

24.
  Do I have to come to the Fairness Hearing? .................................................................................... 15

25.
  May I speak at the Fairness Hearing? .............................................................................................. 15

IF YOU DO NOTHING ...................................................................................................................................... 15

26.
  What happens if I do nothing at all? ................................................................................................ 15

GETTING MORE INFORMATION................................................................................................................. 16

27.
  How do I get more information about the settlements? ................................................................... 16

QUESTIONS? CALL 1-___-___-____ TOLL-FREE, OR VISIT www.________________settlement.com.
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BASIC INFORMATION
1. Why did I get this Notice?
You may have been on the roster of an NCAA Division I men’s basketball or football team that was included in
one of EA’s NCAA-Branded Videogames from May 4, 2003 through [preliminary approval date], and you
therefore may be a Member of one or both settlements. The fact that you have received this Notice does not
necessarily mean that you are a Class Member in either settlement. See Questions 5–7 for more details on how
you can determine if you are a Class Member in the settlements.
You were sent this Notice because, as a possible Class Member, you have a right to know about the two
proposed class action settlements, and about all your options, before the Court decides whether to give “final
approval” to the settlements. If the Court approves the settlements, payments will be made to those who qualify,
but only after any objections and appeals are resolved.
This Notice explains the various lawsuits, the settlements, your legal rights, what benefits are available under the
settlements, who is eligible for them, and how to get them. You must submit a valid Claim Form to receive a
payment under these settlements. See Questions 11–15 for more details on Claim Forms and the deadline to
submit them.
2. What are these lawsuits about?
There are class action cases pending against EA, CLC, and the NCAA. These cases deal with the alleged use of
NCAA men’s football and basketball players’ names, images, and likenesses in EA’s NCAA-Branded
Videogames. These cases involve different claims and time periods. Generally speaking, though, the cases
allege, among other things, that the NCAA, CLC, and EA violated the legal rights of student-athletes by using
their names, images, and likenesses in EA’s Videogames since May 4, 2003, both during and after the studentathletes’ involvement in NCAA athletics.
EA, CLC, and the NCAA have denied the claims and have asserted various defenses to the claims.
3. What is a class action and who are the Parties?
In a class action lawsuit, one or more people, called “Class Representatives,” sue on behalf of people who have
similar claims. All these people together are a “Class” or “Class Members.” One court resolves the issues for all
Class Members, except for those who choose to exclude themselves from the Class (see Question 16).
The Class Representatives (or “Plaintiffs”) in the cases involved in these settlements are or were all NCAA
student-athletes:
•

The Class Representatives in the EA Videogame Settlement 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, Chase Garnham, Samuel Michael
Keller, Bryan Cummings, LaMarr Watkins, Bryon Bishop, Ryan Hart, and Shawne Alston.

•

The Class Representatives in the NCAA Videogame Settlement are Samuel Michael Keller, Bryan
Cummings, LaMarr Watkins, and Bryon Bishop.

The Defendants, or people being sued, in the cases are EA, CLC, and the NCAA.
Together, the Class Representatives and the Defendants are called the “Parties.”

QUESTIONS? CALL 1-___-___-____ TOLL-FREE, OR VISIT www.________________settlement.com.
-4-

4. Why is there a settlement?
EA, CLC, and NCAA have denied all liability in the lawsuits and have asserted various defenses to Plaintiffs’
claims. The Court did not decide in favor of any Plaintiff or any Defendant on the legal claims being resolved
here. Instead, all sides agreed to a settlement, which avoids the risk and cost of a trial, but still compensates the
people affected. The Class Representatives and their attorneys think that both settlements are in the best interests
of Class Members and that both settlements are fair, adequate, and reasonable.

WHO IS IN THE TWO SETTLEMENTS
To see if you are affected by the two proposed settlements, you first have to determine if you are a Class
Member in one or both settlements.
5. How do I know if I am part of the settlements? What are the Class definitions?
If you fall under the Class definition below for a settlement, you are a Class Member in that settlement and may
be eligible for a cash payment. See Questions 9–15 for more details about how the amount of your payment will
be calculated. You may be a Class Member in both settlements.
EA Videogame Settlement: Any NCAA Division I football and men’s basketball player who
(1) was listed on a roster published or issued by a school whose team was included in an NCAABranded Videogame originally published or distributed from July 21, 2005 through [preliminary
approval date], or (2) was listed on such a roster from May 4, 2003 and whose jersey number or
photograph was used in such a videogame.
NCAA Videogame Settlement: All NCAA Division I football and men’s basketball players
who were (1) listed on a roster published or issued by a school whose team was included in an
NCAA-Branded Videogame originally published or distributed from May 4, 2003 through
[preliminary approval date], and (2) whose assigned jersey number appears on a virtual player
in the software, or whose photograph was otherwise included in the software.
Excluded from the 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 their immediate family members, and the judicial offers, and associated court staff assigned to the cases
involved in these settlements and their immediate family members.
The definitions above are summaries, and are not the exact definitions found in the Settlement Agreements. The
specific definitions are set out in more detail in the Settlement Agreements, which are posted on
www.__________________settlement.com. (See EA Videogame Settlement Agreement ¶¶ _______ and NCAA
Videogame Settlement Agreement ¶¶ _____.)
6. What is an “NCAA-Branded Videogame”?
“NCAA-Branded Videogame” means every edition of NCAA Football, NCAA Basketball, and NCAA March
Madness (on any videogame platform) originally published or distributed by EA between May 4, 2003 and
[preliminary approval date].
7. I’m still not sure if I am included.
If you are still not sure whether you are included, you can get free help by contacting the Settlement
Administrator using any of the methods listed in Question 27.
You are not required to pay anyone to assist you in filing a claim or obtaining information about the
settlements.
QUESTIONS? CALL 1-___-___-____ TOLL-FREE, OR VISIT www.________________settlement.com.
-5-

THE SETTLEMENT BENEFITS—WHAT YOU GET IF YOU QUALIFY
8. What do the proposed settlements provide?
Both proposed settlements provide for cash payments to eligible Class Members.
The EA Videogame Settlement has a total Settlement Fund of $40 million. The NCAA Videogame Settlement
has a total Settlement Fund of $20 million.
Each Settlement has a proposed Distribution Plan. Under both Distribution Plans, each Settlement Fund will first
be used to pay for (1) the costs of class notice and administration, and (2) the attorneys’ fees, expenses, and
incentive awards approved by the Court (see Question 20 for more details on these awards).
The remainder of the Settlement Fund for each settlement (called the “Net Settlement Fund”) will then be
distributed to qualifying Class Members, as described in Question 9.
9. How will claim payments be calculated?
Payments to qualifying Class Members will be made based on each Class Member’s share of that settlement’s
“Net Settlement Fund.” A Class Member’s share will be determined by the number of “Points” earned by the
Class Member, as explained below. See Question 11 for details on how to get a payment if you are eligible.
Unless you exclude yourself (see Questions 16–18), or decide to only make a claim in one settlement (see the
Claim Form), your claim will be evaluated under each settlement’s Distribution Plan (below). Thus, you may be
eligible to receive a payment from both settlements for the same edition (year) of a Videogame.
Distribution Plans
The Distribution Plans in both settlements are based on “Points.” The value of these Points is not fixed at any
particular dollar amount, but will vary depending on how many people submit valid claims in each of the
settlements. See Question 10 for examples of how payments might vary.
The amount of Points you earn depends on which “Category” you fall into in the Point Tables below, which is in
turn based on the years you played, and exactly how your likeness was (or wasn’t) used in the Videogames. The
Point Tables list how many Points you get under each settlement. To understand the tables, you need to read the
definitions below.
Definitions:
§

Roster Appearance: You have a “Roster Appearance” if your name was listed on the roster of a team
that was included in any NCAA-Branded Videogame published or distributed from July 21, 2005 to
[preliminary approval date], and you don’t have an Avatar Match or Photograph Use as described
below. (This applies to the EA Videogame Settlement Only, and not to the NCAA Videogame
Settlement.)

§

Avatar Match: To have an Avatar Match, both of the following must be true:
a. Your name was listed on the roster of a team that was included in any NCAA-Branded Videogame
published or distributed from May 4, 2003 to [preliminary approval date]; and
b. Your assigned jersey number appears on a virtual avatar from that same team in the Videogame.

§

Photograph Use: Your photograph was used in an NCAA-Branded Videogame.

§

Class Counsel and the Settlement Administrator will use a database they compiled to determine Avatar
Matches as well as Photograph Uses in each Videogame. (More detail on the various ways they will
determine a “match” can be found at www.______________________settlement.com.)
QUESTIONS? CALL 1-___-___-____ TOLL-FREE, OR VISIT www.________________settlement.com.
-6-

Point Table
Category

Description

A

Roster Appearance
Avatar Match or Photograph Use

Number of Points
Under EA
Under NCAA
Settlement
Settlement
1 point
0 points

Years
2005–2014

B

C

(if you have both, only one will count for
each edition of the Videogame)

Avatar Match or Photograph Use
(if you have both, only one will
count for each edition of the
Videogame)

2003–2005

1.8 points

1.8 points

2005–2014

6.6 points

6.6 points

Remember, you can get Points from both settlements. So, for example, if you have an Avatar Match for the
2006 edition of the Videogame, you would get 6.6 Points from each settlement.
Other Potential Payments Under the Settlements
If you are a Class Member and submit a valid Claim Form but do not qualify for any Points under the above
system, then you will receive a flat $100 payment from each settlement in which you are a Class Member.
If the Net Settlement Funds are not completely used up after making payments to all Class Members who submit
claims, any remaining funds will be used to make additional payments to qualifying Class Members who did not
submit claims. More detail on this can be found in the Settlement Agreements at
www.____________________settlement.com.
10. How much will my payment be?
The exact amount each qualifying Class Member in each settlement will receive cannot be calculated until
(1) the Court approves the settlements; (2) amounts are deducted from the Settlement Fund for notice and
administration costs, attorneys’ fees and expenses, and any Class Representative Incentive Awards; and (3) the
Settlement Administrator determines the number of Class Members who have submitted valid claims and, after
checks are issued, who cashed their checks. See Question 9 for the general method of calculating claims
payments.
Estimated Payments
Below are charts prepared by Class Counsel with estimated payment amounts for each Category. The charts are
broken down by “Claims Rate,” which means they provide an estimate of how much each Category gets if a
certain percentage of Class Members in that category submit valid claims. So a 50% claims rate means that 50%
of the possible claims were submitted in that Category. We do not know what the Claims Rate will be for either
settlement. The calculations below are examples only.
Keep in mind that these amounts are how much a Category gets per Videogame Edition (Year), so if you played
for multiple years, your total payment will be the payment amount below multiplied by the number of years you
fall into that Category. See the “Examples” below to see how this all might affect an individual claim.
Claims Rate
Category
Payment per Year

A

100%
B

C

$26

$74

$270

A

50%
B

C

$52

$147

$541

A

25%
B

C

$104

$295

$1,081

A

10%
B

C

$259

$737

$2,703

QUESTIONS? CALL 1-___-___-____ TOLL-FREE, OR VISIT www.________________settlement.com.
-7-

Examples
To give you a sense of how the Distribution Plans will work for an individual Class Member, below are some
examples, developed by Class Counsel, of potential Class Members and their estimated payments.
Player 1

Player 1 was the starting quarterback listed on the roster at the University of California for four seasons
from 2007 through 2011. His jersey number appeared on the UC team in the 2007, 2008, 2009, and 2010
editions of EA’s NCAA Football Videogame, so he has an Avatar Match for each of those years, and his
photograph appeared in the 2011 and 2012 editions of the Videogame. Assuming a 25% Claims Rate,
Player’s 1 Total Estimated Payment would be $4,324.
Videogame Edition

Category

Estimated Payment Per Edition

2007

C

$1,081

2008

C

$1,081

2009

C

$1,081

2010

C

$1,081

2011

C

$1,081

2012

C

Total Estimated
Payment

$1,081

$6,486

Player 2

Player 2 was on the roster at the University of California and his jersey number appeared on the UC team
in the Videogame for four seasons from 2004 through 2007. Assuming a 25% claims rate, Player 2’s
estimated recovery would be $2,752.
Videogame Edition

Category

Estimated Payment Per Edition

2004

B

$295

2005

B

$295

2006

C

$1,081

2007

C

Total Estimated
Payment

$1,081

$2,752

Player 3

Player 3 was on the roster at the University of California and his jersey number appeared on the UC team
in the Videogame for two seasons from 2003 through 2005. Assuming a 25% claims rate, Player 4’s
estimated recovery would be $104.
Videogame Edition

Category

Estimated Payment Per Edition

2003

B

$295

2004

B

$295

Total Estimated
Payment
$590

QUESTIONS? CALL 1-___-___-____ TOLL-FREE, OR VISIT www.________________settlement.com.
-8-

Player 4

Player 4 was on the roster at the University of California for four seasons from 2004 through 2008, but
neither his jersey number nor his photograph appeared in any EA Videogame.
Videogame Edition

Category

Estimated Payment Per Edition

2004

NONE

$0

2005

A

$104

2006

A

$104

2007

A

Total Estimated
Payment

$104

$312

For additional calculation examples, please visit www.___________settlement.com.

HOW YOU GET A PAYMENT—SUBMITTING A CLAIM FORM
11. How can I get a payment?
To be eligible to receive a payment under one of the settlements, you must (1) be a Class Member of that
settlement; (2) you must not have excluded yourself from that settlement; and (3) you must submit a valid and
timely Claim Form, as described below.
You only need to submit one Claim Form; your claim will be automatically be evaluated under both settlements.
If you wish to make a claim under only one of the two settlements, you should check the appropriate box on the
Claim Form. (See the enclosed Claim Form for more details.)
If you have excluded yourself from both settlements, you are not eligible to make a claim under either
settlement. If you have excluded yourself from one settlement, you are not eligible to make a claim under that
settlement, but you are still eligible to make a claim under the other settlement (the one from which you did not
exclude yourself).
You should read the instructions on the Claim Form carefully, fill it out to the best of your ability, and then sign
it as indicated on the Claim Form (online claim forms will require your electronic signature). You do not need to
have your signature notarized by a Notary Public, but you will be affirming to the best of your knowledge,
information, and belief that the information you provided on the Claim Form is true. If you need help filling out
the Claim Form, you should call the Settlement Administrator.
Filing a Claim Online
You may fill out a Claim Form online at www._____________settlement.com.
Filing a Claim by Mail
You may also submit your Claim Form by mail. A Claim Form is included in this mailing. You may also get a
copy of the Claim Form online at www._____________settlement.com, or by calling 1-___-___-____, or by
sending an e-mail to _____________________ and asking for one. If you choose to mail your Claim Form, you
must mail the Claim Form to the Settlement Administrator at the address indicated on the Claim Form. It must be
postmarked no later than ______________.
Do not send a copy of the Claim Form to the Court, the Judge, or the Defendants.
Please note that, with a few exceptions, only a Class Member can submit a Claim Form. The only exceptions are
that Claim Forms may be submitted on behalf of an individual Class Member by his “Legally Authorized
Representative.” A Legally Authorized Representative means an administrator/administratrix, personal
QUESTIONS? CALL 1-___-___-____ TOLL-FREE, OR VISIT www.________________settlement.com.
-9-

representative, or executor/executrix of a deceased Class Member’s estate; a guardian, conservator, or next friend
of an incapacitated Class Member; or any other legally appointed person or entity responsible for handling the
business affairs of a Class Member. If you have a personal lawyer, your lawyer may assist you with your Claim
Form, but you must personally sign the Claim Form, unless the lawyer is your Legally Authorized
Representative.
You also cannot submit a Claim Form as part of a group effort, or on behalf of a class of persons.
12. When will I get my payment?
The payments will be mailed to eligible Class Members who send in valid Claim Forms on time, after the Court
grants “final approval” of the settlement, after any appeals are resolved, and after the Claim Forms are processed.
The Court will hold a Fairness Hearing on _____________________, at ______ _.m. (Pacific time) to decide
whether to approve the settlements. If you want to attend the hearing, keep in mind that the date and/or
time may be changed after the time of this Notice, so you should check the settlement website
(www.______________settlement.com) before making travel plans.
If the Court approves the settlements (see Questions 23–25), there may be appeals. It’s always uncertain whether
these appeals can be resolved, and resolving them can take time. Please be patient. You can check for updates
and other important information by using any of the methods listed in Question 27.
13. What if I disagree with the amount of my payment?
There is a process in the settlements for you to object to the determination of the amount of your claim payment,
or to object if the Settlement Administrator determines that you don’t qualify for a payment at all. You will get
further details in the letter you receive about your settlement claim. Essentially, if you, the Settlement
Administrator, and Class Counsel cannot agree on how much you should receive under the settlement, you may
appeal as described in the Settlement Agreements. (See EA Videogame Settlement Agreement ¶ ______ and
NCAA Videogame Settlement Agreement ¶ ______.)
14. What am I giving up to get a payment or stay in the settlements?
Remember that the two settlements are separate. Unless you exclude yourself from a particular settlement, you
are staying in the Class or Classes described in that settlement, and that means that you can’t sue or be part of
any other lawsuit against the Defendants in that settlement about the legal claims being settled in that settlement.
It also means that all of the Court’s orders will apply to you and legally bind you.
Because the two settlements are separate, the “releases of liability” in the two settlements are also separate, and
apply to different Defendants and to different claims. So, under the EA Videogame Settlement you will not
“release” the NCAA from any liability, and under the NCAA Videogame Settlement you will not “release” EA
or CLC from any liability.
The details of the two releases are set out in more detail in the Settlement Agreements, which are posted on
www.__________________settlement.com. (See EA Videogame Settlement Agreement ¶¶ _____ and NCAA
Videogame Settlement Agreement ¶¶ _____.) The Settlement Agreements describe the releases in specific legal
terminology. Talk to Class Counsel (see the section on “The Lawyers Representing You,” Questions 19– 20
below) or your own lawyer if you have questions about the releases or what they mean.
15. Will getting a payment in either of the settlements affect my NCAA eligibility?
No. Your request for or receipt of any payment under this settlement will NOT affect your eligibility to
compete in NCAA athletics.

QUESTIONS? CALL 1-___-___-____ TOLL-FREE, OR VISIT www.________________settlement.com.
- 10 -

EXCLUDING YOURSELF (“OPTING OUT”) FROM ONE OR BOTH SETTLEMENTS
If you don’t want a payment from one or both settlements, and instead you want to keep the right to sue the
Defendants in those settlements on your own about the legal issues in those cases, then you must take steps to get
out of the settlement. This is called excluding yourself—or “opting out”—of the Class.
16. How do I get out of one or both settlements?
The two settlements are separate, so you must opt out of each settlement separately. To exclude yourself from
a settlement, you must send a letter to the Settlement Administrator by first-class mail with a clear statement that
you want to be excluded, and from which settlement(s) you wish to be excluded:
§

If you want to exclude yourself from the EA Videogame Settlement, say:
ú

§

If you want to exclude yourself from the NCAA Videogame Settlement, say:
ú

§

“I want to be excluded from the EA Videogame Settlement.”

“I want to be excluded from the NCAA Videogame Settlement.”

If you want to exclude yourself from both settlements, say:
ú

“I want to be excluded from the EA Videogame Settlement and the NCAA Videogame Settlement.”

Be sure to include your name, address, telephone number, and your signature. If you are sending the request
to be excluded as the “Legally Authorized Representative” of a Class Member (see Question 11 above for the
definition of “Legally Authorized Representative”), you must include any information or documents that confirm
your appointment or status as a Legally Authorized Representative. Requests for exclusion must be submitted
individually by a Class Member or his Legally Authorized Representative, and not on behalf of a group or class
of persons. If you have a personal lawyer, your lawyer may assist you with your exclusion request, but you must
personally sign it unless the lawyer is also your Legally Authorized Representative.
You must mail your exclusion request, postmarked no later than __________, to the following:
[NAME AND ADDRESS OF SETTLEMENT ADMINISTRATOR]
Exclusion Request
[Address]
You can’t exclude yourself by phone, by e-mail, or on the website. If you ask to be excluded from a settlement,
you will not get any money from that settlement, and you cannot object to that settlement. You will not be
legally bound by anything that happens in that lawsuit. You may be able to sue (or continue to sue) the
Defendants in that lawsuit.
If you have a pending lawsuit against EA, CLC, or the NCAA involving the same legal issues in these
settlements, speak to your lawyer in that case immediately. If you wish to continue your individual lawsuit(s),
you must exclude yourself from the relevant settlement(s).
17. If I don’t exclude myself, can I sue the Defendants for the same thing later?
No. Unless you exclude yourself from a settlement, you give up any right to sue the Defendants for the claims
that are resolved by that settlement. If you have a pending lawsuit, speak to your lawyer in that lawsuit
immediately. Remember, the exclusion deadline is _______________.
18. If I exclude myself, can I get a payment from the settlements?
No. If you exclude yourself from a settlement, you will not be able to get any money from that settlement, and
you cannot object to that settlement. You will not be legally bound by anything that happens in that settlement.
QUESTIONS? CALL 1-___-___-____ TOLL-FREE, OR VISIT www.________________settlement.com.
- 11 -

But remember that if you exclude yourself from only one of the settlements, you are still eligible to get money
from, or object to, the other settlement, and you will still be legally bound by that other settlement.

THE LAWYERS REPRESENTING YOU
19. Do I have a lawyer in these cases?
Yes. The Court has appointed the law firms listed below to represent you and other Class Members in each of the
two settlements. These lawyers are called Class Counsel. You will not be charged for services performed by
Class Counsel. If you want to be represented by your own lawyer, you may hire one at your own expense.
If you want to contact Class Counsel about these settlements, they can be reached through the Settlement
Administrator by calling [___________] or sending an email to [____________].
EA Videogame Settlement
§ Class Counsel for the EA Videogame Settlement are:
HAGENS BERMAN SOBOL SHAPIRO LLP
Steve W. Berman (Seattle, WA)
Rob Carey (Phoenix, AZ)
Leonard Aragon (Phoenix, AZ)

HAUSFELD LLP
Michael D. Hausfeld (Washington, DC)
Michael P. Lehmann (San Francisco, CA)
Sathya S. Gosselin (Washington, DC)

LUM, DRASCO & POSITAN LLC
Dennis J. Drasco (Roseland, NJ)
NCAA Videogame Settlement
§ Class Counsel for the NCAA Videogame Settlement are:
HAGENS BERMAN SOBOL SHAPIRO LLP
Steve W. Berman (Seattle, WA)
Rob Carey (Phoenix, AZ)
Leonard Aragon (Phoenix, AZ)

THE PAYNTER LAW FIRM PLLC
Stuart Paynter (Washington, DC)
Celeste H.G. Boyd (Chapel Hill, NC)

20. How will the lawyers be paid? Are the Class Representatives being paid?
Class Counsel will ask the Court for an award of attorneys’ fees and expenses in each settlement (the “Fee and
Expense Award”), which will be paid from the Settlement Fund in each settlement:
Attorneys’ Fees
EA Videogame Settlement Requested Fee and Expense Award
§

Class Counsel will ask the Court to approve payment from the EA Videogame Settlement Fund of
attorneys’ fees of up to 33% of the $40 million Settlement Fund (i.e., up to $13,200,000), as well as for
reimbursement for costs and expenses incurred in the prosecution of the lawsuits not to exceed
$2,500,000.

NCAA Videogame Settlement Requested Fee and Expense Award
§

Class Counsel will ask the Court to approve payment from NCAA Videogame Settlement Fund of
attorneys’ fees of up to 29% of the $20 million Settlement Fund (i.e., up to $5,800,000), as well as for

QUESTIONS? CALL 1-___-___-____ TOLL-FREE, OR VISIT www.________________settlement.com.
- 12 -

reimbursement for costs and expenses incurred in the prosecution of the lawsuits not to exceed
$500,000.
Incentive Awards to Class Representatives
§ Class Counsel will ask the Court to approve the following payments (called “Incentive Awards”) to the
Plaintiffs below for their services as Class Representatives in each of the settlements. Any Incentive
Award ordered by the Court will be in addition to what that Class Representative is eligible to receive
from his claim.
EA Videogame Settlement
§

$15,000 each for Samuel Michael Keller, Edward C. O’Bannon, and Ryan Hart.

§

$5,000 each 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.

§

$2,500 each for Bryan Cummings, LaMarr Watkins, and Bryon Bishop.

NCAA Videogame Settlement
§

$5,000 each to Samuel Michael Keller, Bryan Cummings, LaMarr Watkins, and Bryon Bishop.

The Court may award less than the amounts requested for attorneys’ fees and Incentive Awards, and has the
discretion to determine how much to award. The two settlements do not depend on the amounts awarded for
attorneys’ fees or Incentive Awards, which means that the settlements can still be approved and result in
payments to Class Members even if the petitions for attorneys’ fees and Incentive Awards are rejected.
Class Counsel is currently scheduled to file with the Court their request for attorneys’ fees and for the Incentive
Awards on __________________. Settlement deadlines can change, though, so please monitor the settlement
website, or call the Settlement Administrator, to see if any deadlines have changed.

OBJECTING TO ONE OR BOTH SETTLEMENTS
21. How do I tell the Court that I don’t like the settlement(s)?
The two settlements are separate, so you must submit objections to each settlement that you wish to object to.
If you’re a Class Member (or a Class Member’s Legally Authorized Representative, see Question 11), and you
haven’t excluded yourself from a settlement, you can object to that proposed settlement if you don’t like it.
However, you cannot object if you have excluded yourself from that particular settlement. In other words,
you must stay in the case as a Class Member for that settlement in order to object in that settlement.
You can object if you don’t like any part of either proposed settlement, including the settlement’s Distribution
Plan, or the request for the attorneys’ Fee and Expense Award, or the request for Incentive Awards to the Class
Representatives. You can give reasons why you think the Court should not approve any or all of these items, and
the Court will consider your views.
You cannot object in order to ask the Court for a higher payment for yourself personally, although you can
object to the payment terms that apply generally to the Class. The Court can only approve or disapprove the
settlements, but cannot change how much money you are personally eligible to receive from the settlement. This
means that if the Court agrees with your objection, the case won’t be settled unless the parties agree to change
the terms and the Court approves those changes.
To object, you must (a) mail your objection to the Settlement Administrator and (b) file it with the Court. To be
timely, your objection must be mailed to the Settlement Administrator so that it is postmarked by
QUESTIONS? CALL 1-___-___-____ TOLL-FREE, OR VISIT www.________________settlement.com.
- 13 -

________________, and must be filed with the Court by no later than ___________________, at the following
addresses:
SETTLEMENT ADMINISTRATOR

THE COURT

• [SETTLEMENT ADMINISTRATOR
NAME AND ADDRESS]
• For objections to the EA Videogame Settlement:
[TBD]
• For objections to the NCAA Videogame Settlement:
[TBD]

Note: You may mail your objection to the Court, but it must be received by the Court and filed by
__________________. See www.________________settlement.com for more information on how to object to
the settlement.
For each settlement to which you wish to object, you must include the following information:
•

Your full name, address, telephone number, and signature.

•

The case name and number of the settlement to which you are objecting:
§

For the EA Videogame Settlement: [_______________________]

§

For the NCAA Videogame Settlement: [____________________]

•

The specific reasons why you object to the settlement.

•

The name, address, bar number, and telephone number of your counsel, if you’re represented by an
attorney. If you are represented by an attorney, he/she or it must comply with all applicable laws and rules
for filing pleadings and documents in the Northern District of California.

•

State whether you intend to appear at the Fairness Hearing, either in person or through counsel.

Unless you submit a proper and timely written objection, according to the above requirements, you will not be
allowed to object to or appear at the Fairness Hearing. You or your lawyer may appear at the Fairness Hearing if
you have filed a written objection as provided above. (See Questions 23–25). If you have a lawyer file an
objection for you, he or she must follow all Court rules and you must list the attorney’s name, address, bar
number, and telephone number in the written objection filed with the Court.
Please note that any objections must be submitted by an individual Class Member, his Legally Authorized
Representative, or his attorney—not as a member of a group, class, or subclass.
22. What’s the difference between objecting and excluding yourself?
Objecting is simply telling the Court that you don’t like something about the settlement. You can object to a
settlement only if you stay in that settlement. Excluding yourself is telling the Court that you don’t want to be
part of the settlement. If you exclude yourself, you have no basis to object, because the case no longer affects
you. If you object, and the Court approves the settlement anyway, you will still be legally bound by the result.

THE COURT’S FAIRNESS HEARING
23. When and where will the Court decide whether to approve the settlements?
The Court will hold a “Fairness Hearing” (also known as a “Final Approval Hearing”) to decide whether to
finally approve the proposed settlements. The Fairness Hearing will be on _________________________, at
____ _.m. before Judge Claudia Wilken, United States District Court for the Northern District of California,
1301 Clay Street, Oakland, CA 94612. If you want to attend the Fairness Hearing, keep in mind that the date
QUESTIONS? CALL 1-___-___-____ TOLL-FREE, OR VISIT www.________________settlement.com.
- 14 -

and/or time may be changed after the time of this Notice, so you should check the settlement website
(www.______________settlement.com) before making travel plans.
At the Fairness Hearing, the Court will consider whether the proposed settlements and all of their terms are
adequate, fair, and reasonable. If there are objections, the Court will consider them. The Court may listen to
people who have asked for permission to speak at the Hearing and have complied with the other requirements for
objections explained in Question 21. The Court may also decide how much to award Class Counsel for fees and
expenses, and whether and how much to award the Class Representatives for representing the Class (the
Incentive Awards).
At or after the Fairness Hearing, the Court will decide whether to finally approve the proposed settlements.
Because the two settlements are separate, it is possible that the Court will rule differently in each settlement, or
rule at different times. There may be appeals after that. There is no set timeline for either the Court’s final
approval decision, or for any appeals that may be brought from that decision, so it is impossible to know
exactly when the settlement(s) will become final.
The Court may change deadlines listed in this Notice without further notice to the Class. To keep up on any
changes in the deadlines, please contact the Settlement Administrator or review the website.
24. Do I have to come to the Fairness Hearing?
No. Class Counsel will answer any questions asked by the Court.
If you send an objection, you don’t have to come to Court to talk about it. So long as you mailed your written
objection on time and complied with the other requirements for a proper objection, the Court will consider it.
You may also pay another lawyer to attend, but it’s not required.
25. May I speak at the Fairness Hearing?
Yes. If you submitted a proper written objection to the settlement, you or your lawyer may, at your own expense,
come to the Fairness Hearing and speak. To do so, you must follow the procedures set out in Question 21. You
must also file a Notice of Intention to Appear, which must be mailed to the Settlement Administrator so that it is
postmarked no later than ____________________, and it must be filed with the Clerk of the Court by that
same date. If you intend to have a lawyer appear on your behalf, your lawyer must enter a written notice of
appearance of counsel with the Clerk of the Court no later than _______________. See Question 21 for the
addresses of the Settlement Administrator and the Court. You cannot speak at the Fairness Hearing if you
excluded yourself.

IF YOU DO NOTHING
26. What happens if I do nothing at all?
If you do nothing, you will get no money from either of the two settlements, but you will never again be able to
sue or be part of any other lawsuit against the Defendants about the legal claims involved in the settlements. To
submit a Claim Form, follow the instructions described in Question 11.

QUESTIONS? CALL 1-___-___-____ TOLL-FREE, OR VISIT www.________________settlement.com.
- 15 -

GETTING MORE INFORMATION
27. How do I get more information about the settlements?
This Notice summarizes the proposed settlements. For the precise terms and conditions of the settlements, please
see both Settlement Agreements, available at www.____________settlement.com.
YOU MAY OBTAIN ADDITIONAL INFORMATION BY
CALLING
E-MAILING
WRITING
VISITING THE SETTLEMENT
WEBSITE

REVIEWING LEGAL DOCUMENTS

ACCESSING PACER

• Call the Settlement Administrator toll-free at 1-___-___-____ to ask
questions and receive copies of documents.
• Email the Settlement Administrator at ________________
• Send your questions by mail to
[SETTLEMENT ADMINISTRATOR
NAME AND ADDRESS]
• www.___________settlement.com, where you will find answers to
common questions about both settlements, a Claim Form, plus other
information to help you.
• You can review the legal documents that have been filed with the
Clerk of Court in these cases at:
[COURT ADDRESS]
• You can access the Court dockets in these cases through the Court’s
Public Access to Court Electronic Records (PACER) system at
https://ecf.cand.uscourts.gov.

PLEASE DO NOT CALL THE JUDGE OR THE COURT CLERK TO ASK QUESTIONS ABOUT THE
LAWSUITS, THE SETTLEMENTS, OR THIS NOTICE.
THE COURT WILL NOT RESPOND TO LETTERS OR TELEPHONE CALLS. IF YOU WISH TO
ADDRESS THE COURT, YOU MUST FILE AN APPROPRIATE PLEADING OR MOTION WITH
THE CLERK OF THE COURT IN ACCORDANCE WITH THE COURT’S USUAL PROCEDURES.
DATED: ______________, 2014

BY ORDER OF THE COURT

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

QUESTIONS? CALL 1-___-___-____ TOLL-FREE, OR VISIT www.________________settlement.com.
- 16 -

EXHIBIT C

Legal Notice

If You Were on a Roster of an NCAA Division I
Football or Men’s Basketball Team, and That Team Was Included in
One of EA’s Videogames Between May 4, 2003 and [preliminary approval date],
You Could Be Entitled to Cash Payments.
This Notice is only a summary of your rights and options.
For more detailed information, visit www.___________settlement.com or
 call 1-___-___-____ toll-free.
What’s This About?
A federal court is currently reviewing two proposed class action
settlements concerning the alleged use of the names, images, and
likenesses of NCAA men’s football and basketball players in certain
NCAA-Branded Videogames that were manufactured and distributed by
Electronic Arts Inc. (“EA”). The two proposed settlements are (1) the
“EA Videogame Settlement” and (2) the “NCAA Videogame Settlement.”
The EA Videogame Settlement involves claims by student-athletes
that EA and the Collegiate Licensing Company (“CLC”) violated their
legal rights by allegedly licensing, using, and/or selling athletes’ names,
images, and likenesses in EA’s NCAA-Branded Videogames. The NCAA
Videogame Settlement involves claims by student-athletes that the NCAA
violated their legal rights by allegedly participating in the license, use,
and/or sale of athletes’ names, images, and likenesses in EA’s NCAABranded Videogames. All Defendants deny any wrongdoing. The Court
has not ruled on the merits of these claims.
The proposed settlements would resolve the claims described above
against all Defendants. The EA Videogame Settlement has a $40 million
Settlement Fund and would resolve the claims as to EA and CLC. The
NCAA Videogame Settlement has a $20 million Settlement Fund and
would resolve the claims as to NCAA.
You may be a member of one or both settlements. The two
settlements share many terms and involve many of the same Class
members, but are separate settlements, so you should make sure that you
understand both settlements.
The Court will have a hearing on _________________, at __ _.m.
(Pacific time) to decide whether to approve the settlements.
 If you want to
attend the hearing, keep in mind that the date and/or time may be
changed, so you should check the settlement website before making travel
plans. See below for more information.
Who’s Included in the Settlements?
If you were (1) on a roster of an NCAA Division I football or men’s
basketball team, and that team was included in an NCAA-Branded
Videogame originally published from July 21, 2005 through [preliminary
approval date], or (2) you were on such a roster from May 4, 2003, and
your jersey number or photograph appeared in such a Videogame, you
may be a Class Member in one or both of the settlements.
There are different class definitions for each settlement. You should
consult the settlement website for more detailed class definitions and
more information about whether you are entitled to a payment under
either settlement.
Are These Settlements Related to the Trial Against the NCAA
I’ve Heard About?
You may have heard recently about a trial involving student-athletes
(led by Ed O’Bannon) against the NCAA. Although the trial involved
claims that the NCAA used student-athlete likenesses without permission,
those claims were against the NCAA only for violations of antitrust laws.
Also unlike the claims being resolved by this settlement, the claims in the
trial did not involve claims for cash payments.
[Alt. #1: The trial in that case ended on June 27, 2014, and as of the
date of this Notice, the Court has not yet made a decision about the
outcome.] [Alt. #2: The trial in that case ended on June 27, 2014, and the
Court ruled in favor of the student-athletes.] [Alt. #3: The trial in that case
ended on June 27, 2014, and the Court ruled in favor of the NCAA.]

What Do the Settlements Provide?
Both proposed settlements provide for cash payments to eligible Class
Members. You can make a claim under both settlements. More
information about how payments will be calculated (the “Distribution
Plan”) is available at the settlement website.
In addition, Class Counsel will seek from the Court the following
attorneys’ fees awards: (1) EA Videogame Settlement: up to $13.2
million in fees, $2.5 million in expenses, and additional incentive awards
to the Plaintiffs who brought the suits ranging from $2,500–$15,000 each;
(2) NCAA Videogame Settlement: up to $5.8 million in fees, $500,000 in
expenses, and additional incentive awards to the Plaintiffs of $5,000 each.
Class Counsel will file petitions for these awards on
_________________________. The Court will decide the amounts (if
any) of these awards at the Fairness Hearing (see below).
What Are Your Options?
(1) Get a Payment:

You are eligible for a cash payment if you qualify and submit a Claim
Form—either online or by mail—to the Settlement Administrator by
____________________. More information about how to complete and
submit the Claim Form is available at the settlement website.
Requesting or receiving a payment under these settlements will
NOT affect your eligibility to compete in NCAA athletics.
(2) Exclude Yourself from One or Both Settlements:

You must submit a separate exclusion (or “opt-out”) request for each
settlement from which you wish to exclude yourself. You may exclude
yourself from one or both settlements. Your exclusion request must be
mailed to the Settlement Administrator’s address below so that it is
postmarked by ____________________. More information about how to
opt out is available at the settlement website.
(3) Object to One or Both Settlements:

You have the right to object to any element of one or both
settlements, including the Distribution Plans and Class Counsel’s requests
for fees, costs, and incentive awards. You cannot object in order to ask the
Court for a higher payment for yourself personally, although you can
object to the payment terms that apply generally to the Class.
More information about how to object to one or both settlements is
available at the settlement website.
When/Where Is the Fairness Hearing?
The Court will hold a hearing on _____________________ at ____
_.m. (Pacific time) to consider whether to approve the settlements,
including the Distribution Plans and the attorneys’ fees and incentive
awards. You may ask to appear at the Hearing, but you don’t have to. The
courthouse address is _______________________________. The date
and/or time of the Fairness Hearing may be changed, so you should check
the settlement website before making travel plans.
How Do I Get More Information?
The settlement website, www.________settlement.com, contains
more detailed information. You also may call the Settlement
Administrator toll-free at 1-___-___-____, e-mail at ______________, or
write to the Settlement Administrator at the address above.

EXHIBIT D

Must Be
Submitted By
_______________

CLAIM FORM:
Electronic Arts (“EA”) and NCAA Videogame Settlements

To Be Eligible to Receive Benefits under the Settlements Described in the Enclosed Notice,
You Must Complete this Claim Form by __________.
Please read this Claim Form and the enclosed Notice carefully.
If you would like to receive a payment under the EA and/or NCAA Videogame Settlements, you must submit this Claim
Form according to the instructions.

REQUESTING OR RECEIVING A PAYMENT UNDER THESE SETTLEMENTS
WILL NOT AFFECT YOUR NCAA ELIGIBILITY.
You can submit one Claim Form for both settlements. You do not need to submit a separate Claim Form for each
settlement in which you wish to make a Claim. See Question 2 (below) for more details.
You have two options for submitting a Claim Form—Online or By Mail:
Submit a Claim Form Online:

Submit a Claim Form by Mail:

You may submit a claim online by visiting
www._______________settlement.com and filling out this
Claim Form by __________________.

You may submit a claim by completing this Claim Form,
signing it, and mailing it so that it is postmarked by
_________________ to the following address:
[TBD]

If you need any help with this Claim Form, or with any other questions regarding these settlements, please call the
Settlement Administrator at 1-___-___-___ toll-free, visit www.________________settlement.com, or e-mail
______________________settlement.com.
After your claim is processed, you will receive a letter telling you whether you are eligible for a payment and, if so, the
letter will include a check for the amount of the payment. The letter will also explain the process and deadlines to resolve
any disagreement you may have with the decision about your eligibility for a payment. Please be patient, as this process
could take some time.

PLEASE DO NOT CALL THE COURT, THE JUDGE, THE CLERK OF COURT, EA, OR THE NCAA
REGARDING THIS MATTER.

QUESTIONS? CALL 1-___-___-____ TOLL-FREE OR VISIT www.___________ settlement.com.

Must Be
Submitted By
_____________

CLAIMANT ID BARCODE WILL
APPEAR HERE

1: PROVIDE CLASS MEMBER INFORMATION.
Last Name:

First Name:

Middle Initial:

Mailing Address:
City:

State:

Daytime Phone:
—

Zip Code:

Evening Phone:
—

—

—

E-Mail Address:

2. DO YOU WANT TO MAKE A CLAIM IN BOTH SETTLEMENTS?
If you send in a Claim Form, we will assume that you want to make a claim in BOTH the EA Settlement and the NCAA
Settlement, unless you tell us otherwise by checking one of the boxes below.
Please remember that you may not submit a claim in a settlement in which you have excluded yourself. If you exclude
yourself from a settlement, you will not get a payment from that settlement. See Question __ of the enclosed Notice for
more details.
If you want to make a claim in both Settlements, skip to Question 3, below.
If you want to make a claim in only one of the Settlements, please check below:
o I want to make a claim ONLY in the EA Settlement.
o I want to make a claim ONLY in the NCAA Settlement.
The only way to get a payment under these settlements is to submit a claim. If you decide NOT to make a claim in
either settlement and you do not exclude yourself, you will NOT get any payment from that settlement AND you will be
giving up legal rights.

QUESTIONS? CALL 1-___-___-____ TOLL-FREE OR VISIT www._____________________settlement.com.

Must Be
Submitted By
_____________

CLAIMANT ID BARCODE WILL
APPEAR HERE

3. PROVIDE SOME INFORMATION ABOUT YOURSELF
FOR EACH COLLEGE OR UNIVERSITY YOU ATTENDED, PLEASE PROVIDE THE FOLLOWING INFORMATION. If
you don’t know whether you were on the team roster, include the years that you attended school and played NCAA
Division I men’s basketball or football.
If you need more space, feel free to include additional pages with your Claim Form.

COLLEGE
 OR
 UNIVERSITY

YEAR(S)
 LISTED
 ON
 NCAA

THE
 SPORT(S)
 FOR

D-­‐1
 MEN’S
 BASKETBALL
 OR
  WHICH
 YOU
 WERE

FOOTBALL
 TEAM
 ROSTER
  LISTED
 ON
 A
 ROSTER

POSITION(S)
 AND

JERSEY
 NUMBER(S)

YOUR
 HOME
 STATE

(as
 listed
 on
 school

roster—NOT
 your

current
 home
 state)

4. PROVIDE ADDITIONAL INFORMATION, IF YOU KNOW
If you know, list all seasons/editions of an NCAA-Branded Videogame published by EA—(1) “NCAA Football,” (2) “NCAA
Basketball,” or (3) “NCAA March Madness” (any videogame platform)—in which you believe that your jersey number
and/or photograph appears. This information is not necessary to make a claim, but it may help us in processing your
claim.
If you need more space, feel free to include additional pages with your Claim Form.
NAME
 OF
 VIDEOGAME

SEASON/EDITION/

YEAR
 OF
 VIDEOGAME

DOES
 YOUR
 JERSEY
 NUMBER

APPEAR
 IN
 THIS
 VIDEOGAME?

DOES
 YOUR
 PHOTOGRAPH

APPEAR
 IN
 THIS
 GAME?

If you are the Class Member, DO NOT FILL OUT THE NEXT QUESTION (#5). INSTEAD, GO TO THE LAST PAGE
(“CERTIFICATION”) AND SIGN YOUR CLAIM FORM.
QUESTIONS? CALL 1-___-___-____ TOLL-FREE OR VISIT www._____________________settlement.com.

Must Be
Submitted By
_____________

CLAIMANT ID BARCODE WILL
APPEAR HERE

If you are filling out this Claim Form on behalf of a Class Member (for example, if you have power of attorney over the
Class Member’s affairs), fill out Step 5.
5. INFORMATION TO BE PROVIDED BY EXECUTORS, ADMINISTRATORS, GUARDIANS, PERSONAL
REPRESENTATIVES, OR OTHERS LEGALLY AUTHORIZED TO PROVIDE CLASS MEMBER INFORMATION.
(a) Are you the personal representative of a deceased Class Member?

Yes O

No O

/

If so, provide the date of the Class Member’s death:

/

(b) Are you a guardian, conservator, or attorney in fact of an incapacitated Class Member?

Yes O

No O

(c) Are you the legally appointed representative (for example, through a power of attorney) responsible for handling
the Class Member’s business affairs?
Yes O No O
Please provide YOUR information:
Last Name

First Name

Mailing Address

City

Daytime Phone Number:

State

—

Zip Code

—

E-Mail Address:

IMPORTANT: If you are submitting this claim on behalf of the Class Member, please also submit with this Claim Form
documents to prove that you are authorized to submit this Claim Form on behalf of that Class Member (for example,
estate documents, powers of attorney, death certificates, etc.).

QUESTIONS? CALL 1-___-___-____ TOLL-FREE OR VISIT www._____________________settlement.com.

Must Be
Submitted By
_____________

CLAIMANT ID BARCODE WILL
APPEAR HERE

CERTIFICATION:
I certify under penalty of perjury that I have read this Claim Form; I believe I am a Class Member or the Legally
Authorized Representative of a Class Member; and all of the information on this Claim Form is true and correct to the
best of my knowledge.
Print Name

Signature

Date
(MM)

(DD)

(YY)

QUESTIONS? CALL 1-___-___-____ TOLL-FREE OR VISIT www._____________________settlement.com.