Judge gives preliminary approval for $60 million settlement in NCAA video game case

U.S. District Judge Claudia Wilken on Thursday gave preliminary approval to a combined $60 million settlement of a series of claims relating to the use of college football and men's basketball players' names and likenesses in NCAA-themed video games, two lawyers involved in the case told USA TODAY Sports.

Michael Lehmann and Leonard Aragon, attorneys for groups of plaintiffs, also said Wilken decided that the settlement will not affect any injunction she may issue in the Ed O'Bannon antitrust lawsuit against the NCAA. That case awaiting a verdict from Wilken.

Part of the O'Bannon case relates to video games, and lawyers for the O'Bannon plaintiffs said in a court filing Wednesday they were concerned that the language of the settlement agreement would force their clients to either opt out of the settlement or risk losing their ability to seek an injunction against the NCAA that relates to video games.

"We are pleased that the settlement was preliminarily approved, and maintain that this agreement should cover all video-game related claims," NCAA chief legal officer Donald Remy said in a statement.

Wilken's decision Thursday sets in motion a process that eventually will result in tens of thousands of former and current athletes being notified of their eligibility to participate in the settlement. Lehmann, who represents the O'Bannon plaintiffs, said that during Thursday's hearing it was determined that the process -- originally scheduled to begin in September -- will be slowed because getting addresses for potential claimants will require schools' assistance.

The settlement applies to players on teams included in one of Electronic Arts' NCAA-branded games, beginning in May 2003. Aragon, who represents plaintiffs led by former Arizona State and Nebraska football player Sam Keller, said those games include certain notable teams and players from prior decades.

It addresses claims made in a series of lawsuits against the NCAA; EA and/or Collegiate Licensing Co. (CLC), the nation's leading collegiate trademark licensing and marketing firm.

The claims came from several groups of plaintiffs, including those led by O'Bannon and Keller. EA and CLC agreed to $40 million settlement deal that was announced in late September 2013. The NCAA agreed to a $20 million deal in early June.

Under the combined settlement, there will be no specific cap on the amounts players could receive. According to Robert Carey, an attorney for the Keller plaintiffs, players who make valid, timely claims basically will be awarded all of the money that remains after the lawyers receive their fees and expenses.

The proposed settlements are worth a combined $60 million, and the various plaintiffs' attorneys are seeking fees not to exceed $19 million and expenses not to exceed $3 million. So at least $38 million is likely to be available for claims by former and current athletes.

In addition to the number of players making valid claims, the amount each player could receive would depend on:

—Whether a player was on a football or men's basketball roster.

—Whether a player also was depicted in the game as an avatar.

—Whether a player's photograph also appeared in the game.

—Which years a player appeared in the game as an avatar and/or had their photograph used in the game.

—The number of years in which a player was on a roster, appeared in the game as an avatar and/or had their photograph used in the game.

A player's payment per appearance year will depend on the number of valid claims. Carey said 55,000 to 60,000 players have combined for a total of about 112,000 avatar-appearance years. (There are tens of thousands of additional players who were on rosters but were not avatars in games; they would be eligible for smaller amounts.)

Based on examples included in the settlement documents that have been filed with Wilken, this means that if all of the players eligible made valid claims for all of their various appearances in the games, it is likely that a player with numerous appearance years would end up with no more than about $1,600.

However, if there is a 5% claims rate, a player with numerous appearance years could get more than $32,000.

According to the website of Rust Consulting, a Minnesota-based firm that assists in settlement administration, it is difficult to predict claims-filing rates. They can run as low as 2%, the website said.

But Carey said he expected a claims rate of somewhere between 5% and 20%.

"I don't think this is a usual case," Carey said Wednesday night. "This is a highly motivated group and each guy is aware of others. But that's why it's imperative that these guys reach out to guys they know and get them involved."

Under the new proposed settlement, if there is money remaining after valid timely claims, there would be a second distribution of money to claimants who received — and then cashed — an initial settlement check. After that second round of distributions, there would be a five-year effort to locate additional claimants and pay them at a lower rate and then the possible creation of a "hardship-based scholarship fund designed to assist (potential claimants) who did not graduate with a college degree and who wish to return to college."