05/22/24
Statement from Hagens Berman Regarding the Fontenot Claims Amid NCAA NILs Settlement
We think it’s important to add context to actions coming this week from a law firm objecting to a potential settlement with the NCAA, the details of which have not yet been seen by that firm. Hagens Berman’s team has been litigating compensation issues with the NCAA for a decade. Word of a possible global settlement surfaced last summer. When the court approved House as a class action in November 2023, a set of lawyers many months later, when the momentum appeared to be on our side, filed a case in Colorado attempting to insert themselves into the issues over NCAA compensation late in the game. They are apparently led by Korein Tillery who has unsuccessfully engaged in this type of maneuver before.
A Late and Unsuccessful Attempt to Derail Landmark Real Estate Settlement
Korein Tillery is a law firm with a history of this behavior and is attempting to repeat their efforts. Old habits die hard. Hagens Berman and other firms recently reached settlements in a monumental real estate antitrust class action concerning broker commissions. The case received national attention and recognition that it may save Americans hundreds of millions in real estate commissions. In this matter, Korein Tillery tried and failed to stand in the way of what now amounts to more than $900 million in aggregate settlements and rule changes in how commissions are set. Their objections were swiftly overruled by two federal judges.
House/Hubbard/Carter NCAA Cases
Similarly, as a settlement inches closer in our NCAA name, image and likeness litigation and payment cases, Korein Tillery has attempted to force its way into the litigation. We are highly confident their efforts will be overruled, yet see it important to draw attention to certain facts to put their objections in context.
1. A Strong Precedent Favors Athletes in the Northern District of California
Our Keller/O’Bannon/Alston trilogy of NCAA successes have set a strong precedent of the law upholding the rights of college athletes in the Ninth Circuit and Northern District of California. Korein Tillery and the Colorado group argues the case should be handled in the Eighth Circuit, where no such precedent exists. It is not in the best interests of the athletes to avoid favorable precedent. Any impartial lawyer can confirm that.
2. A Judge with a Wealth of Experience in NCAA Pay and NIL Issues
We have tried these cases before a judge who has handled these specific issues for 10 years and is steeped with wisdom in this area. This is the best venue for the class and for these issues to be decided. Any impartial lawyer reviewing the history and painstaking work of Judge Wilken would confirm that. We mean no disrespect to the Colorado court, but it’s hard to ignore the wealth of knowledge Judge Wilken has on these issues.
3. A Settlement Prevents NCAA Congressional Efforts
Hagens Berman and our co-counsel Winston & Strawn have fought the NCAA’s efforts to pass a federal law that would wipe out this case. This effort has resurfaced often in Congress for several years, and our firms stood to meet this challenge. Each time we rose to the fight, Korein Tillery was absent.
4. Significant Payouts to Athletes
Scholars and legal commentators acknowledge that our Alston case, decided 9-0 by the U.S. Supreme Court, opened the door for NCAA rule changes that allowed certain NIL payments. Hundreds of millions of dollars in payments flowed to college athletes as a result. Where was Korein Tillery and the Colorado lawyers in this effort and revolutionary moment? Again, they were not present.
5. $2.7B in Back Damages & $20B+ in Future Revenues to Athletes
Substantial sums will be made available to NCAA college athletes, amounts they were not expecting or entitled to until Hagens Berman and Winston & Strawn took up this effort. Where were the Colorado lawyers in achieving this payout? Absent.
6. We Have Fought the NCAA for 20 Years
In court on May 23, 2024, the Fontenot lawyers claimed this was an “inside deal.” Nonsense. This month marks the 20th anniversary of legal battles over NCAA compensation. We have conducted one trial, four appeals, a U.S. Supreme Court case and litigated House/Hubbard and Carter. No law firm has fought harder and longer. Where was Korein Tillery? Absent.
- Related Documents
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- Order Granting Motion for Class Certification 11/03/23
- Order Granting Plaintiffs' Motion to Exclude Osborne Opinion 11/03/23
- Order Denying Motions to Exclude Desser and Rascher Opinions 11/03/23
- Order Granting Motion for Certification of Injunctive Relief Class 09/22/23
- Motion for Class Certification 10/21/22
- Declaration of Grant House 10/21/22
- Declaration of Jeffrey L. Kessler 10/21/22
- Declaration of Sedona Prince 10/21/22
- Declaration of Steve W. Berman 10/21/22
- Declaration of Tymir Oliver 10/21/22
- Proposed Order Granting Class Certification 10/21/22
- Consolidated Amended Complaint 07/26/21
- Order on Motion to Dismiss 06/24/21
- Kaira Brown Testimony to Congress 06/17/21
- Christina Chenault Testimony to Congress 06/17/21
- Sari Cureton Testimony to Congress 06/17/21
- Sedona Prince Testimony to Congress 06/09/21
- Complaint 06/15/20
Are you a current or former NCAA college-athlete who has been an active player for any period since June 15, 2016? If NCAA rules prevented you from receiving compensation from schools or third parties for your name, image and/or likeness, you could be entitled to payback.
ABOUT THE NEWEST LAWSUIT VS THE NCAA
The class-action lawsuit filed on behalf of current and former NCAA college athletes accuses the NCAA, Pacific-12 Conference, the Big Ten Conference, the Big Twelve Conference, Southeastern Conference and Atlantic Coast Conference of illegally limiting the compensation that Division I college athletes may receive for the use of their names, images, likenesses and athletic reputations.
The lawsuit says the NCAA and its member conferences violated federal antitrust laws in abiding by a particular subset of NCAA amateurism rules that prohibit college athletes from receiving anything of value in exchange for the commercial use of their name and likeness. Attorneys say college athletes should legally receive compensation, and that if it weren't for the NCAA's restrictions, third parties would openly compete for access to college athletes' names, images and likenesses in sponsorships, promotions, social media content, advertisements and more.
TOP COLLEGE ATHLETE LAW FIRM
Hagens Berman has a proven track record of successfully bringing lawsuits against the NCAA on behalf of college athletes, and our cases cover a range of injustices faced by NCAA players across all sports:
Hagens Berman’s legal team achieved a $208 million settlement against the NCAA concerning antitrust-related student scholarship limits, a combined $60 million settlement against Electronic Arts and the NCAA regarding player likeness rights in videogames, and an additional settlement valued at $75 million regarding concussions and safety protocols. The firm’s sports litigation legal team also includes former NCAA athletes.
WHAT IS MY NAME AND LIKENESS WORTH?
In 2015 USC’s athletics department issued about a dozen sponsored messages each week across each of its official social media accounts. Revenue from those sponsored posts was approaching the mid-six-figures annually. In the 2017-18 academic year, sponsorship spending on college athletic departments, conferences, bowl games, and related properties totaled $1.24 billion. Universities also make lucrative deals with sponsors: UCLA recently signed a record-setting deal with Under Armor worth $280 million. In its multimillion and multibillion dollar deals with broadcasters, the NCAA and its members institutions reap tremendous financial rewards from using the NILs of college students on television. In 2016 the NCAA negotiated an eight-year extension of its multimedia contract for the broadcasting rights to March Madness, under which the NCAA will receive $1.1 billion per year.
NO COST TO JOIN
There is no out-of-pocket cost or fee to join cases, file cases or sign up to benefit from settlements or lawsuits. In the event Hagens Berman or any other firm obtains any settlement that provides benefits to class members, the court will determine and award reasonable fees and costs to the class’s legal team, which never comes from the portion allotted to class members.
YOUR COLLEGE ATHLETE RIGHTS
Hagens Berman believes college athletes deserve more from the NCAA, which makes lucrative deals based on players' names, images and likenesses. Hard-working athletes are subjected to high medical bills, rigorous schedules, grueling competitions, and we think those affected by the NCAA's restrictive regulations should receive immediate help. We want to hold the NCAA accountable for you, your teammates and future college athletes to come.
- VIDEOS
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Steve W. Berman: Landmark Antitrust Settlement in NCAA Name, Image and Likeness (NIL) Litigation
Attorney Steve W. Berman Answers: What is the Alston Case About?
CASE TIMELINE
On Nov. 3, 2023, U.S. District Judge Claudia Wilken certified three classes of college athletes regarding damages in the case, meaning, the NCAA faces monetary loss in the lawsuit, not just court action restraining its antitrust behavior. Damages would be based on payments college athletes would have received if not for the NCAA’s restraints. These revenues include those from three areas: television broadcasts (referred to as BNIL in the court’s 52-page order), video games and other revenue sources.
“Because Plaintiffs have met their burden to show that the issues of antitrust injury and damages can be resolved with common proof on a classwide basis, and given that it is undisputed that the central question of whether the challenged rules violate Section 1 is also capable of resolution with common proof on a classwide basis, the Court finds that Plaintiffs have met their burden to show that the predominance requirement of Rule 23(b)(3) is met with respect to the proposed damages classes,” the order reads.
A judge certified a class of at least 184,000 NCAA college athletes, allowing their claims to proceed in a historic antitrust lawsuit against the NCAA regarding payments for athletes’ name, image and likeness rights, according to attorneys at Hagens Berman. read more »
Attorneys representing Attorneys representing the proposed class of NCAA college athletes have filed a motion to certify the lawsuit’s group of athlete plaintiffs, applicable to thousands of athletes. The motion seeks what would likely be hundreds of millions of dollars in damages including damages for a share of the billions of dollars in TV revenue defendants’ broadcast deals generate, including the Big Ten Conference’s new record-breaking $7-billion-dollar media agreement that was just announced in August. Plaintiffs also seek damages that class members would have received for use of their NILs in video games including the popular EA Sports NCAA titles. The motion also requests additional damages related to other lost NIL opportunities.
The motion defines four classes: an Injunctive Relief Class that consists of all Division I athletes who competed or will compete from June 15, 2020 to the date of the judgment in the case, the Football and Men’s Basketball Class (consisting of such players in the Power Five Conferences plus Notre Dame who have played since June 15, 2016 to the date Judge Wilken would certify the class), the Women’s Basketball Class (consisting of women’s basketball players in the Power Five Conferences who competed during the same timeframe) and the Additional Sports Class which includes all other Division I athletes who received NIL compensation after the NCAA permitted certain third-party NIL deals on July 1, 2021 and also played their sport in prior seasons when NIL compensation was completely prohibited.
Thousands of college athletes have taken advantage of the NIL opportunities now available to them since the NCAA loosened its restrictions on July 1, 2021. These deals include partnerships with clothing brands, beverage companies, restaurants, cell phone companies, video game platforms, and other national and local retailers and have amounted to massive payoffs for the athletes who were previously completely prohibited from engaging in any commercial NIL activities. Female athletes in particular have seen enormous success. LSU gymnast Olivia Dunne, for example, has signed some of the biggest endorsement deals in the country and University of Miami basketball players, Haley and Hanna Cavinder, have already earned nearly $2 million. And this new college athlete NIL market is only expected to grow in the future. As just one example, multinational consumer goods company, Unilever, has already announced plans to spend $5 million over the next five years in partnerships with college athletes promoting the deodorant brand Degree.
The motion also seeks to appoint Hagens Berman as co-lead counsel for the plaintiffs. Read the motion »
“…if Judge Wilken certifies classes that are in the ballpark of those proposed by the players, the ramifications would prove enormous. It would mean the NCAA and its member schools face a lawsuit that could conceivably claw back billions of dollars and redistribute that money to current and former athletes.” — Michael McCann, Sportico
“House is occurring in a transformative era for college sports and the law. Last year, in Alston v. NCAA, the U.S. Supreme Court held the NCAA is subject to ordinary antitrust scrutiny.” — Michael McCann, Sportico
U.S. District Judge Claudia Wilken upheld antitrust claims on behalf of NCAA college athletes regarding name, image and likeness (NIL) compensation. In the June 24, 2021 order, Judge Wilken stated that the lawsuit’s claims stand up against the NCAA’s arguments for dismissal by plausibly alleging injury and anticompetitive effects of the NCAA’s regulations.
In an order from U.S. District Judge Claudia Wilken, the court denied a motion to stay brought by the NCAA and the conferences, which would have halted discovery in these cases pending the outcome of the Supreme Court appeal in the NCAA Grant-in-Aid case. Hagens Berman’s managing partner, Steve Berman said, “We are pleased with the court’s decision as this will allow us to continue forward with discovery without a delay until later this spring.”
“The court finds that, while the Supreme Court's decision could affect the issues in [the cases] the balance of hardships between the parties weighs against granting a stay at this time,” Judge Wilken wrote
