Revealed eDiscovery Email Chains Score Points in NCAA Class Action
In the class action lawsuit filed by former NCAA player Ed O’Bannon and joined by 15 other former football and basketball players, plaintiffs allege that their images and likenesses were illegally used by defendants NCAA and Electronic Art Sports for commercial products. As part of discovery, plaintiffs sought and obtained email threads which could point to defendant’s actual knowledge and intent to use plaintiffs’ images and likenesses.
Defendant NCAA objected to the production based on purported “competitively sensitive” information about business and media contracts in the email chains. The court disagreed, ordering the defense production to continue, but allowing for redaction of information irrelevant to the litigation within the threads.
The produced emails revealed, among others, that in responding to an inquiry whether the video game manufacturer used players’ names, NCAA Director of Corporate Alliances Peter Davis acknowledged that “We don’t actually use player names but we do use all the attributes and jersey numbers of the players.” In another email, Davis confirmed that, “if it’s in the game, it’s fair game (e.g., the likenesses of student-athletes from the game can be used, just can’t be enhanced to look more like the real guys).”
Will the email threads prove that the defendants violated anti-trust laws in conspiring to use players’ images and likeness for unlawful profits? Will the NCAA change its policies and allow student athletes to be paid for the use of their own images and likeness, as requested in plaintiffs’ pleadings? We are following this case for more information and updates.
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