Posted Wed, October 1st, 2014 8:40 pm by Lyle Denniston

Two significant First Amendment cases that have been awaiting the Supreme Courts reaction for a year are on the way to beingsettled, with the real prospect that former stars in big-time college football and basketball will get a share of a $60 million fund. Of that, $40 million would be put up by the maker of video games about college sports, and $20 million by the National Collegiate Athletic Association the group that makes policy for competition in collegiate athletics.

The proposed settlements, which will be circulated among collegians who previously played in the NCAAs Division I (its major league for football and basketball competition), are due for a federal district court hearing next May on whether the deal is a fair one. In the meantime, the two sides agreed to end attempts (see hereand here) to get the Supreme Court to rule on a claimed clash between the First Amendment and the right under state law giving people of some renowna legal right to exploit financially their own fame (the so-called right of publicity).

The NCAA and Electronic Arts Inc. a video-game developer that has gained its own fame with games under the label EA Sports have been in a running, years-long legal battle with former Division I athletes who gained fame for their playing feats. At issue were television broadcasts of the games in which the athletes had played, and video games using near-lifelike avatars of the collegians, with their feats opento manipulation by the players. The NCAA made deals for the broadcasts and the development of the video games.

The settlements that have won a California judges preliminary approval involve the class-action lawsuits against the NCAA and Electronic Arts over the video games.

The legal battle is not over yet, at least for the NCAA, because an ongoing lawsuit, now developing in the U.S. Court of Appeals for the Ninth Circuit, grows out of the athletes claim that the NCAA violated federal antitrust law by stifling competition for publicity about the stars performances on gridirons and basketball arenas.

The same judge who gave at least initial approval in early September to the settlement of the video games hadruled last August that the NCAA had violated antitrust law, and nowmust put together a fund that would give the athletes covered by the ruling $5,000 for each year they were featured in televised broadcasts of their games.

It has been estimated that the antitrust case could lead to payments totaling $300 million over a four-year period. That would be five times the size of the funds that would be provided to settle the two videogames cases against Electronic Arts. Those are cases about the right of publicity. Earlier, Electronic Arts faced an antitrust claim, like that against the NCAA, but that was settled earlier, and the antitrust case moves aheadin the Ninth Circuit only against the NCAA.

Meanwhile, at the National Labor Relations Board, the NCAA is fighting against a lower-ranking board officials ruling that collegiate athletes are legally entitled to be treated as employees of their institutions, and thus are entitled to form and join labor unions to bargain over pay and working conditions. That dispute focuses on the meaning of federal labor law.

The two cases that were filed at the Supreme Court a year ago by Electronic Arts have been idling away for months on the Courts docket, with the former athletes getting repeated extensions of time to respond. The issue in both cases one from the Ninth Circuit, and one from the U.S. Court of Appeals for the Third Circuit raised the same constitutional question: does the First Amendment right to free speech give video-game developers a right to create visual and sound games, and does that right provide a defense to a lawsuit claiming a violation of the right of publicity? Both circuitsrejected that defense.

See original here:

Big payday for ex-college sports stars?