Are You a College Sports Fan? If So, Then 6/20/13 May Be a Big Date for You

June 20 is a big day for college sports fans.

Why? There is a hearing scheduled that day on a motion for class certification (for class action purposes) in the NCAA student-athlete likeness antitrust litigation. Basically, there are two proposed classes: (1) current student-athletes in football and basketball; and (2) former student-athletes in football and basketball.

Both want the ability to monetize their likenesses from now on. The former players would want damages and future licensing rights. The current players would want future licensing rights. At this point, the cases have not been consolidated into a class action. Accordingly, only former players have filed suit. If the classes are certified, then current players could join.

The procedural hurdles are the biggest obstacle for the student-athletes, and it is very possible that the hearing date will be postponed. Ultimately, the NCAA does not want the case to go to trial, because trial is a wild card. Literally, the NCAA does retain player likenesses during and after their eligibility, but the NCAA argues that its policy is reasonable. In the past, courts have sometimes agreed with the NCAA in its "reasonable" restrictions, and sometimes not.

Before class certification, the student-athletes do not have a great deal of bargaining power. After certification, if it happens, they would have substantial bargaining power, because there is power in numbers. If the classes become certified, the NCAA may try to settle quickly, because of the risk of going to trial. In a possible settlement, the most likely outcome is that the NCAA would no longer be able to retain former player likenesses after their eligibility expires. There is no rational reason why the NCAA is allowed to keep making money off of former college athletes after the players have turned professional in sports or something else.

The next most likely outcome of a settlement is that the current student-athletes would be able to earn a fraction of a school's licensing revenue on a per capita basis for each team, which would be accessible from a trust fund after the players' eligibility expires. For different reasons, the schools probably could not force the players to graduate in order to access the licensing revenue, even though that would promote graduation rates.

Please contact me if you would like more information on this topic or something else. For related information in other blog posts, please visit:

- How class certification works in connection with the NCAA student-athlete antitrust litigation.

- Publicity rights and NCAA student-athletes.

- Recent Supreme Court case has implications for NCAA student-athlete likeness antitrust litigation.