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NCAA Slams Athlete Suits Over Names, Images, Social Media Brands

Sept. 14, 2020, 5:56 PM

The NCAA blasted a pair of antitrust lawsuits filed in California federal court over athletes’ names, images, and likenesses, saying the cases reflect an attempt at “serial litigation of the exact same claims” that the Ninth Circuit “expressly rejected” twice.

“The law does not permit plaintiffs to get a third bite at the same apple,” the association says in a new court filing.

In addition to the NCAA, the proposed class actions target its “Power Five” conferences: the Pac-12, Big Ten, Big Twelve, Southeastern Conference, and Atlantic Coast Conference.

They were filed in the U.S. District Court for the Northern District of California by Arizona State University swimmer Grant House, University of Oregon basketball player Sedona Prince, and former University of Illinois football player Tymir Oliver.

Athletes ‘Powerless’ to Get Paid

The suits accuse the NCAA and conferences of profiteering off of students’ images and social media brands by colluding “to create an anti-competitive market” in which college athletes are “powerless” to realize their commercial value.

Meanwhile, leagues, coaches, and sponsors get millions each year from likeness deals and “social media blitzes,” the suits say. They allege “an overarching conspiracy to fix the amount that student-athletes may be paid” for their images “at zero.”

Students playing sports that don’t offer lucrative professional opportunities have a limited time to cash in on their fame online, and the league and conferences are effectively usurping that chance, the suits say.

They cite recent rulings by a federal judge and the U.S. Court of Appeals for the Ninth Circuit striking down caps on education-related compensation for college athletes. Justice Elena Kagan in August declined to stop those decisions from taking effect while the NCAA prepares a U.S. Supreme Court petition.

The new suits, which seek damages and an injunction, also refer to an earlier class action ruling against some of the likeness restrictions and a California law that would let athletes get paid for endorsements. “Vague” and “noncommittal” reform pledges have yet to culminate in “any actual rule changes,” they claim.

‘Questions That Have Been Answered’

Those earlier cases are exactly why the new suits are doomed, the NCAA and its conferences say in joint dismissal motions docketed Sept. 11.

Those decisions staked out a middle ground between the free labor market sought by the athletes and the NCAA’s effort to preserve the “amateurism” that differentiates collegiate from professional sports.

But the new suits seek more radical relief that has already been rejected, the association argues. No changes to the legislative or judicial landscape can justify “a virtually identical effort to ask, once again, questions that have been answered,” according to the filings.

The NCAA is represented by Wilkinson Walsh LLP. The Pac-12 is represented by Proskauer Rose LLP. The Big Ten is represented by Mayer Brown LLP. The Southeastern Conference is represented by Robinson Bradshaw & Hinson PA. The Big 12 is represented by Polsinelli PC. The ACC is represented by Fox Rothschild LLP.

The plaintiffs are represented by Hagens Berman Sobol Shapiro LLP and Spector Roseman Kodroff & Wills PC.

The case is House v. Nat’l Coll. Athl. Ass’n, N.D. Cal., No. 20-cv-3919, motion to dismiss filed 9/11/20.

To contact the reporter on this story: Mike Leonard in Washington at mleonard@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Patrick L. Gregory at pgregory@bloomberglaw.com

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