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After another flurry of legal maneuvers between lawyers for plaintiffs led by former UCLA basketball player Ed O'Bannon and lawyers for the NCAA, the happiest group of lawyers in the fight over the use of college athletes' names and likenesses probably was the one representing former Arizona State and Nebraska quarterback Sam Keller.

Over a roughly 12-hour span that ended late Thursday afternoon, each had gotten something it wanted -- but only the Keller group had come away with nothing it didn't want.

And a trial in the O'Bannon case, while still set for June 9, also could have a different look than O'Bannon's lawyers had hoped or could end up being delayed until February.

The O'Bannon plaintiffs pulled off a surprising move in their antitrust suit against the NCAA that also involves the association's limits on what major-college football and men's basketball players can receive for playing sports: They decided not to pursue individual claims against the NCAA in addition to an injunction that would prohibit the NCAA from limiting what Football Bowl Subdivision players and Division I men's basketball players can get for playing.

That meant giving up the opportunity for monetary damages, but it also effectively meant a jury would not be involved in deciding a complex case along with Judge Claudia Wilken. Juries are involved in damages cases, but only a judge can grant an injunction.

However, Thursday brought a status conference with Wilken that had been prompted in part by a motion from the NCAA that the O'Bannon trial not include claims or evidence related to video games -- matters they wanted to deal with only in the context of the Keller case.

The Keller case had begun as a lawsuit focused on video games and is based not on antitrust law but rather on law related to personalities' right to control the use of their names, images and likenesses.

Although it had been joined with the O'Bannon case as a practical matter, it is a separate proceeding, and the NCAA has told Wilken it should not have to try the video game issues against O'Bannon's lawyers and then again against Keller's.

Keller's lawyers have argued that they are entitled to an unfettered chance to pursue their specific claims against the NCAA -- claims that potentially are worth more than $100 million in statutory penalties, loss of profits and punitive damages.

Michael Hausfeld said that during Thursday's conference Wilken asked his team of lawyers to address by Monday whether they think their antitrust case against the NCAA would be "unduly prejudiced" if it were moved to February. He and Keller attorney Robert Carey said the judge also asked the sides to assess how a joint O'Bannon-Keller trial would work, giving the Keller lawyers an additional chance to advance their cause.

At issue is whether Wilken:

Allows the O'Bannon case to go forward as scheduled and unchanged, which would allow the plaintiffs to maintain use of some strong evidence it has presented in various pretrial filings.

Lets the trial go forward as scheduled, but without video games being addressed, which would enable the Keller plaintiffs to have greater control of the video game claims than they might have if the O'Bannon case proceeds unchanged.

Delays the O'Bannon case and holds a joint O'Bannon-Keller trial in February, the earliest the sides could be ready.

NCAA spokeswoman Stacey Osburn said the association had no comment.


May 16, 2014


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