A lawsuit led by Arizona State swimmer Grant House, Oregon basketball player Sedona Prince, and former Illinois football player Tymir Oliver is aiming to alter the name, image, and likeness landscape by retrieving billions of dollars in media revenue paid to conferences and colleges. After overcoming a motion to dismiss from the NCAA, the athletes are now seeking certification of four classes covering multiple sports and damages.
Classes
Part of the plaintiffs’ claims is that the current NCAA rules deny current players NIL opportunities. Thus, the first class is made up of current division I athletes seeking injunctive relief to prevent the NCAA from enforcing the NCAA’s interim NIL policy.
Each of the following three classes is seeking monetary damages. One class will include football and men’s basketball players who have played since June 2016 until class certification. Importantly, the alleged class damages include depriving the class of sharing in multibillion dollar media contracts. Another will include women’s basketball players from the same time period, and the last class will include non-basketball and non-football players.
All classes project nearly 7,000 members except for the women’s basketball class, which projects close to 900 members.
Rule 23
Rule 23 of the Federal Rules of Civil Procedure dictates the requirements for class certification. As a prerequisite, the plaintiffs may sue on behalf of the class if:
"the class is so numerous that joinder of all members is impracticable;
there are questions of law or fact common to the class;
the claims or defenses of the representative parties are typical of the claims or defenses of the class; and
the representative parties will fairly and adequately protect the interests of the class.”
Since this is an antitrust suit alleging that the NCAA, its conferences, and member schools alleging that the entities illegally conspired through NCAA rules to deny athletes NIL opportunities, the plaintiffs should be able to satisfy the commonality requirement.
As to typicality, the requirement can be satisfied if the claims arise from the same court of conduct, which the plaintiffs may prove through the NCAA’s refusal to allow NIL opportunities.
Whether House, Prince, and Oliver can fairly and adequately protect the class remains to be seen. Once the prerequisites are satisfied, the plaintiffs must satisfy other requirements before Judge Claudia Wilken certifies the class. Importantly, Judge Wilken oversaw O’Bannonand Alston, two other antitrust lawsuits that changed the NCAA landscape.
Similar to O’Bannon and Alston, House is another class action suit that could change the future of college sports.
Landis Barber is an attorney at Safran Law Offices in Raleigh, North Carolina. You can connect with him via LinkedIn or via his blog offthecourtdocket.com. He can be reached on Twitter @Landisbarber.
