Thursday, March 21, 2013

How class certification works in connection with the NCAA student-athlete antitrust litigation.

Yesterday, I discussed the college basketball and football players' attempted class certification in antitrust litigation involving the publicity rights of current and former players. I will briefly go into the requirements for class certification. These are the requirements that the court is looking at in determining whether the current and former college basketball and football players qualify as a "class," for class action purposes. These requirements are the same for all federal cases.

First, the class must be large enough that joining all members is impracticable. Second, the background and/or the law to be applied in the case must be common to the class. Third, the arguments of the parties seeking class certification must be typical of the proposed class members. Finally, the parties seeking class certification must protect the interests of the class.

If the party seeking class certification can establish those four elements, the class may be certified. In the NCAA student-athlete case, the NCAA's argument is that the class members do not share enough in common to be certified as a class. This is a common argument in class actions. There is no magic number for how big the class must be, but that requirement is often met. I have seen classes as few as seven in number certified. The second requirement is often met as well, because if there is no common background or law to be applied, class actions are usually not even a consideration.

For a class action to be maintained, there must be a risk of inconsistent results among the proposed class members (if the cases are tried individually) or one party's case would basically decide how the other cases are resolved without giving the other parties an opportunity to participate. The court must also determine that a class action is the best way to resolve the cases.

There can be more than one class, which is the what the players are attempting in the NCAA student-athlete litigation. The current players and former players would be in different classes, because of the different remedies they are seeking. The former players want monetary damages, but the current players could not receive money and remain eligible. The current players also have potential rights in individual licensing that former players no longer have.

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