Steve Berman Hagens Berman managing partner
Steve Berman, Hagens Berman managing partner ()

SAN FRANCISCO — The National Collegiate Athletic Association has agreed to pay $20 million to current and former student athletes who claim they were depicted in NCAA-licensed video games without their consent.

The NCAA announced the settlement Monday, the same day a related case began trial in Oakland federal court. Plaintiffs attorneys and the NCAA are at odds over how the settlement relates to the ongoing case, in which the compensation of student athletes is also at issue.

In the ongoing case, a class of student athletes, led by named plaintiff Edward O’Bannon Jr., seeks a court order blocking the NCAA policy that prevents the association from sharing its licensing revenue with players. U.S. District Chief Judge Claudia Wilken is presiding over the antitrust bench trial.

By agreeing to Monday’s video games settlement, the NCAA has already done what it is fighting against in court, plaintiffs attorneys say.

“It’s the first time that the NCAA will pay student athletes for their performance on the field, so it’s a historic occasion,” said Hagens Berman Sobol Shapiro partner Steve Berman, who represents the settling plaintiffs.

The NCAA disagrees.

“In no event do we consider this settlement pay for athletics performance,” NCAA Chief Legal Officer Donald Remy said in a news release.

The case that settled, led by named plaintiff Samuel Keller, is narrower in scope than the O’Bannon case. While O’Bannon’s suit is on behalf of all Division I football and basketball players, the Keller case is limited to the specific players who appeared in the video games.

There is also no hope of a large cash settlement in the O’Bannon case, as Wilken refused to approve a subclass seeking damages.

In both the Keller and O’Bannon cases, class members settled claims last year against Electronic Arts Inc., the maker of the video games, and the Collegiate Licensing Company for $40 million.

“With the games no longer in production and the plaintiffs settling their claims with EA and the Collegiate Licensing Company, the NCAA viewed a settlement now as an appropriate opportunity to provide complete closure to the video game plaintiffs,” Remy said in the NCAA release.

The association declined further comment.

The complete details of the settlement have not yet been released, but Hagens Berman partner Leonard Aragon estimates each eligible athlete will receive up to a few thousands of dollars for each year he or she played sports. That compares with $400-$1,000 per year per athlete from the settlement reached last year. Both estimates depend on how many athletes claim a share of the settlement, Aragon said. Munger, Tolles & Olson partner Glenn Pomerantz is lead defense counsel in the Keller and O’Bannon cases. Berman is lead plaintiffs counsel in the Keller case, and the Hausfeld firm is lead plaintiffs counsel in the O’Bannon case.

Plaintiffs attorneys are optimistic Monday’s settlement bodes well for the O’Bannon case.

“I think it’s just more evidence that the sky isn’t going to fall in if the athletes share some of this money,” said plaintiffs attorney Stuart Paynter, principal with the Paynter Law Firm in Washington, D.C. “The world will keep turning and college sports will keep being played.”

The NCAA has agreed students who accept money from the settlement will not lose their eligibility to play. But the association made it clear in its news release that it still stands behind its policy of not paying student athletes.

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