On November 8, 2013, the Northern District of California certified a class of current and former student athletes seeking injunctive relief under the Sherman Act but declined to certify a damages subclass in the case In re NCAA Student-Athlete Name & Likeness Licensing Litig., 4:09-cv-01967-CW (N.D. Cal. November 8, 2013).  The plaintiffs, current and former NCAA Division I men’s football and basketball players, alleged that the National Collegiate Athletic Association (NCAA) conspired with a video game developer and a marketing firm in developing rules prohibiting student athletes from receiving compensation for the commercial use of their names, images and likenesses.

Plaintiffs sought certification of the injunctive relief class pursuant to Rule 23(b)(2) and certification of the damages class under Rule 23(b)(3).  The Court certified the injunctive relief class, rejecting defendants’ argument that certification under Rule 23(b)(2) is inappropriate where plaintiffs are also seeking monetary relief.  The court explained that plaintiffs generally may seek certification of multiple classes pursuant to different subdivisions of Rule 23(b).

The proposed damages subclass by definition included only those athletes who were depicted in video games or game footage after 2005.  The court declined to certify the damages class under Rule 23(b)(3), holding that plaintiffs failed to satisfy the manageability requirement because they did not provide a feasible way to identify class members that were actually harmed by the NCAA’s conduct.  One barrier to manageability was the “substitution effect:” if student athletes had not been prohibited from receiving compensation, many athletes who left college early to play professionally would have stayed in college and displaced other student athletes on their respective teams.  Therefore, some members of the damages class may have actually benefitted from the NCAA rules by earning roster spots that would not have otherwise been available.  Plaintiffs failed to provide a feasible method for determining which class members would have still played for Division I teams without the NCAA’s rules.

The court also identified two other barriers to manageability: plaintiffs did not provide a feasible method for determining on a classwide basis (1) which athletes were depicted in video games, or (2) which class members appeared in game footage during the relevant period.  With respect to the latter, plaintiffs referenced third-party sources such as team rosters, game summaries and televised game schedules, but the court found this inadequate because “they have not provided any formula for extracting the relevant information from each of these resources and using that information to identify putative class members.”