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How $20 million NCAA video games settlement could change O'Bannon

The NCAA hopes the Keller settlement will take some critical documents out of the more important case.

EA Sports

The O'Bannon case got off to a surprising start on Monday, as the NCAA and the plaintiffs of the Sam Keller lawsuit, which regards the use of athletes' likeness in video games, announced that they had reached a settlement. From the NCAA:

The settlement will award $20 million to certain Division I men's basketball and Division I Bowl Subdivision football student-athletes who attended certain institutions during the years the games were sold.

Electronic Arts and the Collegiate Licensing Company, who were originally involved in the case, had previously settled for $40 million, bringing the total amount of money awarded to athletes who appeared in NCAA video games to $60 million. A settlement was bound to happen at some point, since EA's testimony had pretty much destroyed any hope the NCAA had of winning that case.

However, the timing of the settlement has potentially important consequences to the O'Bannon case.

The NCAA had previously asked Judge Claudia Wilken to deny the use of the video game documents in the O'Bannon trial, though she refused to do so. Now, because of the settlement, the NCAA seems to think it could have that request approved, though there is no word on whether it will be.

One of the NCAA's major arguments is that there is no market for college athletes. In other words, television companies are paying for the use of schools' facilities and platforms when they broadcast games, not the likenesses of the players. However, the O'Bannon plaintiffs claim to have evidence to dispute that from an EA employee.

The (plaintiffs) will present documentary evidence and testimony from Joel Linzner of EA at trial that while EA abided by the prohibition on paying college athletes for the use of their (likeness) in NCAA-lisenced videogames, it nonetheless wanted to obtain the rights for more precise likenesses and the names of every college athlete on each roster, for which EA was willing to pay more to the NCAA and the college athletes themselves.

If EA thought that its product would be improved by using the names of real players — and it was willing to pay the players to use their likenesses — that severely hurts the NCAA's claim that there is no market for players' likenesses, because it's logical to assume there is a market for television broadcasts if there is for video games. But if the NCAA gets its way, that testimony will not be admissible, meaning we could get into a situation where admissibility of evidence decides the case.

Update: The NCAA probably isn't going to get its wish.