College football and basketball players have finalized a $40 million settlement with a video game manufacturer and the NCAA's licensing arm for improperly using the likenesses of athletes, leaving the NCAA alone to defend itself in the upcoming Ed O'Bannon antitrust trial.
Lawyers for the plaintiffs filed the settlement agreement with a federal court in Oakland, California, on Friday night in an action that could deliver up to $4,000 to as many as 100,000 current and former athletes who appeared in EA Sports basketball and football video games since 2003.
"I'm thrilled that for the first time in the history of college sports, athletes will get compensated for their performance," said Steve Berman, co-lead counsel for the plaintiffs. "It's pretty groundbreaking."
EA and the Collegiate Licensing Corporation had come to an agreement in principle with the plaintiffs in September 2013, but the settlement was held up by a variety of issues. The NCAA objected to the departure of their co-defendants, and plaintiffs' lawyers representing three different classes of players haggled over the financial cuts that would go to each.
In the end, according to the agreement, 77 percent of the funds that are due to players (after lawyer fees) will go to the class of players represented by Berman, who sued the NCAA on behalf of former Arizona State quarterback Sam Keller. Just over 12 percent will go to players in the class represented by O'Bannon, the former UCLA basketball star. The final 10 percent will go to the class represented by former Rutgers football player Ryan Hart and former West Virginia football player Shawne Alston.
Additionally, O'Bannon, Keller, Hart and the other named plaintiffs would receive payments of $2,500 to $15,000 for their time and efforts in representing the classes.
If the settlement is approved by U.S. District Court Judge Claudia Wilken, the lawyers will receive up to one-third of the settlement funds, or $13.2 million, plus a maximum of $2.5 million in legal fees that they argue is "particularly reasonable in light of the advanced stage of this case." They state that the collective lodestar, or total amount of legal services expended, by the various plaintiffs' firms that have worked on the Keller, O'Bannon and Hart-Alston cases exceeds $30 million, plus expenses of $4 million.
The suits mostly cover players who were on the rosters of Division I men's basketball or Football Bowl Subdivision teams that appeared in the EA Sports video games since 2003. If approved by Wilken, players will be alerted to the availability of payments and will have to register to get paid, using a formula based in part on how many years they were on those rosters. Plaintiffs' lawyers estimate that there are approximately 140,000 to 200,000 annual roster appearances in all three classes.
The fewer players who sign up for the settlement, the more that each player who signs up gets. However, the settlement also could be scuttled if an undisclosed number of players formally opt out of the proposed agreement, as well; only Wilken and the lawyer know that number.