On September 17, 2013, the NCAA filed its Motion to Dismiss the Third Consolidated Class Action Complaint (“Complaint”) filed in the In re Student-Athlete Name and Likeness Licensing Litigation. The NCAA posits a number of arguments addressing the finer points of the Complaint. As it relates to video games, the NCAA argues it 1) “does not restrict the ability of student-athletes from licensing their [likenesses]…after they have left school;” 2) “never licensed [EA Sports] to use student-athletes’ [likenesses];” and 3) “specifically restricts use of the student-athletes’ [likenesses] while they are in school.” The NCAA also argues that archival footage and photo clips do not violate antitrust laws because former student-athletes can license likenesses for commercial gain whereas current student-athletes are prohibited from receiving compensation for playing college sports. The NCAA heavily relies on NCAA v. Board of Regents in arguing that student-athletes cannot be successful in their claims for rights to broadcast revenue based on dicta from the opinion that states “athletes must not be paid” in order to “preserve the quality and character of the [amateur] ‘product.’” For further review, click here for a copy of the motion.

For any questions, feel free to contact Christian Dennie at cdennie@bgsfirm.com.