After much speculation and discussion regarding O’Bannon’s request for class certification, Judge Claudia Wilken has granted the request as it pertains to the injunctive relief class but denied the request as it pertains to the damages class. The injunctive relief class is defined as follows:

All current and former student-athletes residing in the United States who compete on, or competed on, an NCAA Division I (formerly known as “University Division” before 1973) college or university men’s basketball team or on an NCAA Football Bowl Subdivision (formerly known as Division I-A until 2006) men’s football team and whose images, likenesses and/or names may be, or have been, included in game footage or in videogames licensed or sold by Defendants, their co-conspirators, or their licensees after the conclusion of the athlete’s participation in intercollegiate athletics.

The damages class is defined as follows:

All current and former student-athletes residing in the United States who compete on, or competed on, an NCAA Division I (formerly known as “University Division” before 1973) college or university men’s basketball team or on an NCAA Football Bowl Subdivision (formerly known as Division I-A until 2006) men’s football team and whose images, likenesses and/or names have been included in game footage or in videogames licensed or sold by Defendants, their co-conspirators, or their licensees from July 21, 2005 and continuing until a final judgment in this matter.

The Court found that O’Bannon met the requirements for class certification under Rule 23(a) of the Federal Rules of Civil Procedure for both the injunctive relief class and the damages class, but O’Bannon did not present sufficient evidence to establish that certification is appropriate under Rule 23(b)(3) for the damages class. The operative langauge of Rule 23(b)(3) states a class must satisfy two conditions in addition to the Rule 23(a) prerequisites: common questions must “predominate over any questions affecting only individual members,” and class resolution must be “superior to other available methods for the fair and efficient adjudication of the controversy.”

The Court noted three deficiencies in O’Bannon’s approach to class certification for the damages class: 1) O’Bannon failed to satisfy the manageability requirement because they have not identified a feasible way to determine which members of the damages class were actually harmed by the NCAA’s alleged anticompetitive conduct; 2) there was another barrier to manageability because it could not be clearly identified which student-athletes were actually depicted in videogames during the relevant class period and, thus, members of the damages class; and 3) O’Bannon failed to present a feasible method for determining on a class-wide basis which student-athletes appeared in game footage during the relevant period. The Court concluded that the “obstacles to manageability” precluded class certification for the damages class because it is not “a superior method for adjudicating this controversy.”

In short, the Court split the baby and granted injunctive relief that could prohibit the NCAA from enforcing amateurism rules, but denied relief that would allow damages to be awarded to the student-athletes. This ruling appears to send a message to the parties that it is time to attempt to resolve the dispute.

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