MAPCO Gas Stations Experiences Serious Security Breach

MAPCO Express, a retail gas station and convenience store company based out of Brentwood, Tennessee, experienced a major security breach earlier this year. MAPCO has locations in Alabama, Tennessee, Georgia, Kentucky, Mississippi, Virginia and Arkansas.

On May 6, 2013, MAPCO first publicly announced that it was hit by a wide-reaching security breach that left thousands of customers exposed to fraud and identify theft from transactions that date back as far as March of this year.  Computer hackers stole the credit/debit card information of MAPCO customers and have been making unauthorized transactions with this financial information.

Rules that cover transactions on credit cards, check cards, and debit cards require merchants to validate a series of security measures, such as the establishment of firewalls to protect databases.  Among other things, merchants, such as MAPCO, are prohibited from storing unprotected cardholder information. 

Pittman, Dutton & Hellums, P.C., has filed a complaint against MAPCO for those injured by this security breach. A recent story in The Tuscaloosa News was published on its affiliated website which discusses the story:

http://www.tuscaloosanews.com/article/20130625/NEWS/130629888/1291/living?Title=Northport-lawyer-sues-convenience-store-chain&tc=ar

The  dates of the security breach occurred between March 19-25, April 14-15 and April 20-21 of 2013. If you used a credit or debit card at any MAPCO location  and were injured by the MAPCO breach, please contact Chris Hellums at 1-866-515-8880 or by email at chrish@pittmandutton.com

NCAA: Public Statements vs. Private E-mails--You Decide

Here is the public statement made by the NCAA regarding O'Bannon lawsuit:

The NCAA's chief legal officer, Donald Remy said in a statement: "While the NCAA is still reviewing this filing, it appears to be more of the same -- baseless theories supported only by inaccurate speculation aimed at destroying amateurism in college athletics. (emphasis added)... [T]he plaintiffs take out of context quotes and statements from representatives of member conferences and institutions, and even NCAA officials, and attempt to weave them together to support their faulty theory. ..."The fact remains -- the NCAA is not exploiting current or former student-athletes but instead provides enormous benefit to them and the public. Plaintiffs are wrong on the facts and wrong on the law. The NCAA remains hopeful the court will agree and deny this motion."

Now, lets looks at the internal documents and see what they say:

NCAA President Myles Brand (Photo credit: Wikipedia)

NCAA president Myles Brand, now deceased, sent an email expressing frustration about the NCAA's  issue of commercializing college athletes.

In 2008, Brand wrote: " ... I have come to believe that the problems we are having with commercial activity are rooted in institutional expenditure rates. It is primarily because of the need for additional revenue that institutions — and the national office — are seeking ways to commercialize their rights, and those of (student-athletes). If expenditure rates had only increased at the (Consumer Price Index) for the past two decades, we would not be having this discussion."

Did he just say that they were commercializing the rights of players (I refuse to use the fictional term student athlete created by the NCAA).  Sounds like Brand is saying that if schools did not spend money like drunken sailors, we could keep this really good gig going without attracting any attention.  You decide.  

How about this exchange between EA Sports and CLC and NCAA executive Greg Shaheen:

Shaheen writes to Battle, in part: "Re: the S/A likeness, this will come in stages, we suspect. We're trying to determine the best strategy to get it all passed over the next two legislative cycles. The current take is that we need to do this first phase and then go back for photos and video games in the next phase. The read is that if we lump it all together, it will become loaded down and be killed."

Battle's reply to Shaheen included the following: "I will tell Joel just to hold off and that we have things under control working behind the scenes."

The potential pitfalls of athletes' likenesses being used in videogames was apparent to NCAA staffers two years earlier, according to another exhibit submitted by the plaintiffs.

In an e-mail in August 2005 to NCAA executive Kevin Lennon, NCAA governance staffer Steve Mallonee wrote " ... since our current rules/interpretations only preclude the actual use of the (student-athlete's) name, picture or physical likeness in commercial promotions/activities, these computerized video games are basically allowed to do what they are doing. The jersey number along with the position and vital statistics is clearly an attempt to have the public make the association with the current student-athlete. And it appears to be working. The Best Damn Sports Show was aired several weeks ago and had (Southern California football players) Matt Leinart and Reggie Bush acknowledging that they were in the video game."

Continuing and then referring to a newspaper story, Mallonee wrote: "That then raises the issue of whether getting in line with technology means being more restrictive or lenient with our rules. The article would imply that we might relax our rules a bit. The biggest concern I have is that such a position really does allow for the maximum commercial exploitation of the (student-athlete) and if that occurs, will it be long before we can defend not giving them a piece of the profits?"

What is EA's motto:  If it is in the game, it is in the game!  I guess the NCAA's motto should be " it just looks like a duck, but it is really a rabbit."

Source:  USA Today

NCAA: Come On Man

It seems like everyone has an opinion on the Ed O'Bannon case which is currently pending in California.  Class certification was argued last week before Judge Claudia Wilkin.  The result of that case could have a profound impact on college sports.  For full disclosure, I represent Tyrone Prothro, who is one of the class representatives in that case.

Here are some "come on man" facts:

1.  Student-Athlete:  Where was this term derived?  It is a fiction created out of thin air by Walters Byers (more on him later) to deflect attempts to pay workers compensation benefits to injured players.

2.  Tax exempt status:  College Sports enjoys tax free status because it is not a commercial enterprise.   Hmmm.  Does that pass the smell test?

3.  Olympics:   "Dead in Eight Years."  This is what was said about allowing professionals in the Olympics.  That certainly didn't happen.  The Olympics are more popular than ever.

4.  Bill Russell, Oscar Robinson, Harry Flourney:  These are others who have joined the lawsuit.  Does anyone really think that it is OK for the NCAA, EA Sports, et. al to make money off video games that use the images of guys that never even played when there were video games?  For those of you who don't know Harry Flourney, he was the captain of the Texas Western team from 1966 who defeated Kentucky for the NCAA championship.  How is it that when they used his image in the movie "Glory Road" they had to get his permission and he was compensated, but the NCAA and EA don't even have to ask his permission.

5.  $3000 in pocket change:  This is not what the players receive, or has even been put on the table as part of the "full scholarship" sideshow.  No, this is what some National Merit Scholars get from some Universities to attend--and they are generating revenue how???

6.  Laughing:  What Judge Wilkin appeared to do when NCAA lawyers tried to argue that the billions they were getting was for access to their venues.

7.  Walter Byers:  Don't know who he is?  For 37 years, he ran the NCAA.    He coined the term "student athlete."  He created the enforcement department at the NCAA.  He fought Jerry Tarkanian.  He pushed for (and got)  the tax exempt status.  He negotiated  50 plus multi-million dollar media contracts.  What does he say?  At the end of his career he wrote a book called Unsportsmanlike Conduct.  In 1997, he argued  that college sports had become a high dollar commercial enterprise and argued that athletes should have the same access to free markets as coaches and colleges.  Wow!

Look, we all love our college teams.  We have team spirit.  The status quo is good for us as we tailgate and watch the sport get better and better.  However, exploitation is ugly.  The NCAA's "amateurism" now really looks like a blatant money grab and restraint of trade.  The emails that have been unsealed in the case expose the hypocrisy at the NCAA.   The bubble almost burst with the Michigan Fab 5. Now seems clear that a giant meteor is headed right at the NCAA.  Can they avoid the direct hit and the ultimate fallout.  Time will tell, but if their actions are any indication, they still don't believe there are such things as meteors.

Related articles

• The latest in the Ed O'Bannon case, and why the NCAA's headed for change
• Ed O'Bannon's NCAA Lawsuit Returns To Court In Push To Get College Athletes Paid
• Infographic: This Lawsuit Could End the NCAA As You Know It
• Lawsuit threatens NCAA money machine. That's good

NCAA: Hearing Day is Today in the Biggest Case in NCAA History

from AAJ Newsbrief    

  In a 1,500-word feature, the Los Angeles Times (6/20, Wharton, 692K) offers a preview of today’s hearing in the O’Bannon lawsuit, a case challenging the idea of amateurism in college sports. The judge “must decide if thousands of current and former college players can join as plaintiffs in what would become a class-action suit,” which could then “potentially chang[e] the business of Saturday afternoon football games and March Madness.” The Times notes, “Big Ten Conference Commissioner Jim Delany filed a legal declaration stating that changes to the current system might force his member schools to ‘downsize the scope, breadth and activity of their athletic programs,’ shifting to a model that resembles the smaller, less glamorous Division III”; however, “some experts believe there is enough money to spread around.” The article states that it is not clear whether the judge would hear oral arguments or make a decision on Thursday and quotes a variety of academics and university officials on both sides of the issue. “The simple, straightforward truth is that the NCAA has never licensed student-athlete likenesses,” said NCAA executive vice president and general counsel Donald Remy.

        USA Today (6/19, Berkowitz, 1.71M) adds, “Lawyers involved with the case are not anticipating that she will issue a ruling Thursday, but her questions and reactions to each side’s arguments may provide hints about her thinking on two separate, but related, issues: the immediate legal requirements for class certification and the broader merits of the plaintiffs’ case.”

        The New York (NY) Times (6/20, B12, Eder, Bishop, Subscription Publication, 1.68M) reports that in 2008, “N.C.A.A. executives, in private communications, opposed any notion that college football and basketball players should get a cut of the profits.” According to the Times, “A review of numerous e-mails sent by N.C.A.A. officials and video game executives suggests that the N.C.A.A. has long had a goal of ensuring it makes as much money as possible while doing everything it can to keep students from being paid,” but the NCAA “disputes that video game avatars and live broadcasts of games have violated athletes’ rights.” The Times prints a number of internal NCAA emails between executives to make its point before quoting Remy as saying, “It is a healthy dialogue that occurred in the organization.”

        In a separate story, USA Today (6/20, Berkowitz, 1.71M) reports, “Video game manufacturer Electronic Arts went to great lengths to make sure the avatars in its college football and college basketball games resembled actual student-athletes, and high-ranking NCAA officials knew about, and approved of, the practice, lawyers for the plaintiffs in an anti-trust suit against EA, the NCAA and the Collegiate Licensing Co., wrote in portions of documents unsealed Wednesday night.” The information, made public the day before a hearing in the case, came from “portions of documents that originally were filed in a redacted form in late April.” The article states that “NCAA spokesman Bob Williams could not be reached for immediate comment.”

        In a column for Sports Illustrated (6/19, 3.21M), Michael McCann offers a case primer, including a “comprehensive breakdown of where the case stands in advance of Thursday’s hearing.” Notably, McCann writes, “Although she would not acknowledge this, Wilken may have already made up her mind on certification after reading written materials submitted by both sides. In that case, she would use Thursday’s hearing to test her conclusions.” However, he also writes that U.S. District Judge Claudia Wilken has an “even-handed” reputation, although she “usually certifies classes.” McCann states that Sports Illustrated analyzed her 29 orders of class certification, finding she only denied it six times, or 21 percent. Partial certification was granted five times, with full certification being granted 18 times.

        In a separate Sports Illustrated (6/19, 3.21M) column, Andy Staples examines what is at stake in the hearing. For Staples, “The immediate answer is: nothing. Wilken probably won’t issue a ruling until later this summer on whether to certify the class.” Staples says that the case will not end college sports, no matter the outcome. “In the real world, people don’t simply walk away from multibillion-dollar businesses. In most of the potential outcomes, the NCAA will continue to operate in a fashion similar to the way it operates now. Even in the complete nightmare scenario for the NCAA, some organization will still exist to govern major college sports,” he writes.

        A separate New York (NY) Times (6/20, B14, Bishop, Subscription Publication, 1.68M) story profiles other key figures in the lawsuit, including Sonny Vaccaro, who said, “June 20 is the most important day in amateur athletics history.” According to the Times, “Vaccaro has become a key figure in the lawsuit, one of several whose roles have evolved along with the case.” Other people mentioned as playing a key role include Harry Flournoy and Sam Keller, former student-athletes who, according to the Times, believe they should be compensated for images that resemble their likeness.

        Columnist Nathan Fenno, in the Washington (DC) Times (6/20, 76K), writes, “Before competing, each athlete must sign a “Student-Athlete Statement” to be kept on file for six years. No negotiation. No option not to sign. The statement affirms, among other things, that the NCAA owns the rights to the athlete’s name and image. Bylaw 12.5.” Fenno continues on to criticize the system of amateurism in college sports.

        In an opinion piece for ESPN (6/20), Tom Farrey writes, “Lost in the finger-pointing is the fact that the collective storm of crises confronting the NCAA today was inevitable.” According to Farrey, the issue stems from a boon in commercialization brought about by the 1984 Supreme Court ruling in the Board of Regents vs. NCAA case. “If the 1984 case was settled differently, we wouldn’t have these issues,” said Gary Roberts, law school dean at Indiana University-Purdue University at Indianapolis and a former NCAA faculty rep. “The NCAA wanted to limit commercialization of college basketball and football to one game a week, and one network. If that lid had been kept on, we wouldn’t have the unleashed commercialization we see today.” 

Related articles

• Abolish the NCAA (Cont.)
• Ed O'Bannon vs. The NCAA: EA Sports producer admits to using player likenesses in games
• 13. Ed O'Bannon vs EA Sports
• Spreading the wealth

Washington Post: When Businesses Give to Judges, They Get What They Want

The Washington Post recently ran an interesting story on partisan election of judges.  This is obviously not a new story, but a recent academic study seems to confirm the hypothesis that many have surmised. The study, done by Emory law professor and economist Joanna Shepherd study looks at how state judicial systems go about securing judges for their highest courts. There are four ways states select these judges:  merit selection by the state legislature, other appointment systems, state-wide non-partisan elections, and partisan elections.

Of those judicial selection methods, Shepherd then looked to see which justices’ decisions were most influenced by big campaign contributions. It’s no surprise:  justices that were elected to the bench through a partisan election were much more likely to make judicial decisions based on the amount of campaign contributions they had received. The reasoning is simple. “When judges are elected, that means they have to raise campaign money — a lot of money, in fact. And the amounts in question have risen considerably in recent decades.” Judges, whether consciously or not, are more likely to rule in favor of businesses that have donated to their campaign in order to ensure that the campaign donations won’t dry up in the future.

The statistics from Shepherd’s study tell the same story:  “…a justice getting 1 percent of his contributions from business would vote for business 46.5 percent of the time. However, a justice getting 25 percent of contributions from business would vote in its favor 62.1 percent of the time.” As further evidence, Shepherd notes that, “In the last term before mandatory retirement, the favoritism toward business litigants by judges facing partisan and non-partisan elections essentially disappears,” which shows that judges are less likely to vote pro-business when they no longer need to raise money.

I think there are many who think of judges as politicians in robes. In many states, that’s what they are … They seem to think judges should be a reflex of the popular will.

— Retired U.S. Supreme Court Justice Sandra Day O’Connor,making “a plea for preserving the impartiality and independence of the American judicial system,” the Chicago Tribune reports.

One must ask:  Are partisan elections a good idea?

 http://www.washingtonpost.com/blogs/wonkblog/wp/2013/06/11/when-businesses-give-judges-money-they-usually-get-the-rulings-they-want/

Related articles

• Business donations to judges' campaigns often equal friendly rulings
• Business donations to judges' campaigns often equal friendly rulings
• Business donations to judges’ campaigns often equal friendly rulings
• For Judges, Campaign Cash Speaks Louder than Ideology
• Former Justice O'Connor Rails Against Elected Judges

Situation Gets Worse For Pilot Flying J

Two of Pilot Flying J’s executives, Arnold Ralenkotter and Ashley Judd, have recently pleaded guilty to the federal charges of conspiracy to commit mail fraud. Many expect a number of other executives to  have criminal charges brought against them in the near future for their participation in a scheme to reduce promised rebates to truckers across the country. The crimes could bring prison sentences of up to 20 years.  It will be interested to see if the CEO, Jimmy Haslem, will be implicated.

Haslem, who also owns the Cleveland Browns, told other NFL owners that he had no knowledge of the illegal scheme to cheat trucking companies.  In a 120 page affidavit, the FBI claims that Haslem did have some knowledge of the program.

The FBI raided Pilot’s headquarters in Knoxville, TN, on April 15, and it was there that the government found overwhelming evidence against Ralenkotter and Judd. Ralenkotter has since admitted to participating in the scheme from 2008 through April 2013. Ralenkotter’s attorney stated, “He knew it was wrong and indefensible, and we felt it was in his best interest to enter a guilty plea early.”

Details of the fraudulent scheme can be found here:

http://www.usatoday.com/story/money/business/2013/05/29/2-plead-guilty-in-feds-probe-of-truck-stop-chain/2370797/

Many Who Qualify Have Not Filed BP Claims Yet

More than 32,367 individuals and businesses in Alabama have filed claims in a settlement stemming from a class action lawsuit against BP over its 2010 Gulf of Mexico oil spill, but many who might qualify for settlement funds have not yet filed claims.   Thousands of Alabama individuals and businesses have filed and their claims are currently in process.

Of the claims filed thus far in Alabama, about 9,600 have been declared eligible and $573 million has been paid. Millions more have been paid to residents of neighboring states as well. In total, 172,000 claims have been filed in five states, and claims administrators have paid out more than $3.5 billion.

Businesses do not have to be located on the Gulf Coast to qualify for payment.  In fact, any business in Alabama qualifies.  An accounting formula is used to determine if a business lost revenue during the oil spill period. Businesses must demonstrate that their revenue during three consecutive months between May and December of 2010 was 15 percent lower than during a benchmark period from before the oil spill, and that revenue over the same three month period in 2011 was at least 10 percent higher than during the oil spill months. Claims must be accompanied by documents including federal tax returns.

Even if your business was healthy during these time periods, you may still qualify for the settlement.

Claimants must file by April 2014. This seems like a long way into the future, but the close out date is fast approaching. 

The BP Deepwater Horizon spill in April of 2010 dumped 5.9 million barrels of oil into the Gulf, more than 17 times the amount of crude that was spilled by the wreck of the Exxon Valdez tanker in 1989.

The attorneys at Pittman, Dutton & Hellums, P.C. are currently investigating BP claims. If you or someone you know, or represent, owns a business in Alabama, Louisiana, Mississippi and certain areas of Florida and Texas, you may qualify for a BP claim payment. Please contact Chris Hellums toll free at 1-866-515-8880 or via email at chrish@pittmandutton.com.

Trial Judge Affirms $8.3 Million Dollar Jury Verdict in First Trial Against Depuy for Recalled ASR Hips

A California Superior Court judge has denied DePuy Orthopaedics’ motions for new trial or judgment notwithstanding the verdict, upholding the $8.3 million judgment that resulted from the state’s first trial of a DePuy ASR hip implant case. The case is Kransky v. DePuy, BC456086, California Superior Court, Los Angeles County.

In March, the jury hearing the DePuy ASR recall lawsuit in California found the ASR hip was defectively designed, and awarded more than $8.3 million to the Plaintiff, Loren Kransky. Mr. Kransky sued the company under the theory that the ASR was defectively designed as well as DePuy's failure to warn his doctors that its product was dangerous. He claimed that the ASR hip caused him to suffer severe side effects, including metal poisoning. The jury found in favor of Mr. Kransky on the design defect claim and in favor of DePuy on the failure-to-warn claim.

During that trial, evidence was introduced which indicated Johnson & Johnson and its subsidiary, DePuy Orthopaedics, had knowledge that the ASR hip product was defective years before the recall was announced. The recall occurred in August 2010. However, that information was not shared with the public at large or the medical community. According to a New York Times report published on April 16th, much of the same evidence was introduced in a second trial that concluded last month in Illinois state court. However, the jury hearing that case found for Johnson & Johnson.

Los Angeles Superior Court Judge J. Stephen Czuleger issued his decision from the bench following a hearing May 24 and has scheduled a hearing in June on the plaintiff’s attorneys’ request for approximately $1.2 million in costs. DePuy submitted its motion for JNOV April 17^th in the corporation’s bid to persuade Judge Czuleger to throw out the verdict. In their motion, Depuy argued that the jury had erred and its verdict was inconsistent.Thus far, there has been no written order.

Judge Czuleger ruled that although there was a "legitimate conflict" in the evidence at trial as to when DePuy knew that its ASR hip implants were dangerous, this did not bar Mr. Kransky's ability to hold DePuy liable for a defectively designed product. The judge also rejected DePuy's claim that the overall body of evidence was insufficient to support Mr. Kransky's verdict, noting that there was "strong evidence" in support of his claim.

Court records indicate that there are more than 11,000 DePuy ASR hip lawsuits currently pending throughout the United States, most of which have been filed in a multidistrict litigation underway in U.S. District Court, Northern District of Ohio. The first trials in the MDL are expected to begin in September 2013. That date is subject to change as the first bellwether case has been continued already this year. The ASR MDL is titled In re: DePuy Orthopaedics, Inc. ASR Hip Implant Products Liability Litigation – MDL 2197.


Our firm is currently investigating claims for those people who have been implanted with the DePuy hip replacement devices, both ASR and Pinnacles. If you would like a free case evaluation, please contact Chris Hellums at toll free 1-866-515-8880 or at chrish@pittmandutton.com.
 

Manufacturer and Implanting Physician of Vaginal Mesh Found Liable

http://www.businessweek.com/news/2012-07-25/bard-doctor-lose-verdict-over-vaginal-mesh

                Bloomberg Businessweek

Currently, there are hundreds of lawsuits pending alleging that vaginal-mesh implants made by Murray Hill, New Jersey-based Bard, Boston Scientific Corporation and other companies have caused organ damage in women.

A jury in California has recently held C.R. Bard, Inc., manufacturer of the Bard Avulta Plus transvaginal-mesh implant, liable for injuries caused to plaintiff Christine Scott. The devises are used to treat pelvic organs that bulge, or prolapse, or to deal with incontinence. Scott was implanted with the device in 2008 and afterwards had to undergo as many as nine surgical procedures to deal with problems caused by the device.

In her complaint, Scott alleged that the Bard Avaulta Plus vaginal-mesh implant was defectively designed and that the manufacturer had failed to warn about its safety risks. Her attorney produced evidence in hopes of showing the jury that Bard did not properly test the device before putting it on the market. In its ruling, the California jury found that Bard officials knew or should have known that surgeons “performing pelvic-floor repair would not realize the potential risks” posed by the implant. As a result, the jury ruled that Bard was 60% at fault and Christine Scott’s implanting surgeon, Dr. Tillakarasi Kannannan, 40% liable for the injuries Scott sustained as a result of the vaginal-mesh device.

In their verdict, the jury ruled that together, C.R. Bard, Inc. and Dr. Tillakarasi Kannannan are to pay $5.5 million to Scott and her husband. The damages awarded are in order to compensate both plaintiff and her husband for their financial and emotional suffering caused by the vaginal-mesh device Christine had implanted back in 2008.

In an e-mail statement, Scott Lowry, a Bard spokesman, stated that “while we empathize with the complications suffered by the plaintiff, those complications are not the fault of any conduct by the company.” Lowry went on to say that “[the company] believe[s] the evidence establishes that our Avaulta mesh products, cleared by the FDA, are safe and effective and provide significant benefits to patients.”

A 2011 report by the U.S. Food and Drug Administration found that vaginal mesh products should be classified as posing high risk to patients based on a review of side-effect reports from January 2008 to December 2010. In January of this year, in attempt to investigate the safety of vaginal mesh implants, the FDA ordered 31 manufacturers to study the rates of organ damage and other complications occurring as a result of the implants. Both Bard and Johnson & Johnson were included in the manufacturers required to conduct these studies. These studies must be conducted over the period of three years.

Hmmmm: Alabama Athletic Director Not Necessarily Against NCAA Players Begin Compensated

Newly hired Alabama Athletic Director, Bill Battle, recently waded in on the discussion of 
compensating players.  His comments are certain to gain the attention of many.  The reason is that Bill Battle is the founder of Collegiate Sports Licensing (CLC), which he sold to IMG.  CLC is a defendant in the lawsuit brought by former players, including Ed O'Bannon and Tyrone Prothro (represented by me and my firm) regarding the use of their names and likeness.

So, what did Battle say and why is it important?

"I know the conference (SEC) is on record as saying they want a (cost-of-attendance scholarship) stipend for all athletes," Battle said. "I don't see how you can pay one set of some players on a team more than others. The Olympic model might be something where you put money in a trust and it goes to that individual and they don't use it until after they graduate."

"That may be something. I'm for exploring anything. I want people to get their fair market value. But again, (in) our system ... there are a lot of people that are beneficiaries as well as coaches and players and staff members."

In other words, Battle realizes that the dam has broken.  He is uniquely qualified to try and craft a solution and the powers that be in the NCAA would do well to listen to his sage advice.  However, crafting a solution is more difficult that it appears and the NCAA has always taken a scorched earth approach and been slow to change.  

At the heart of the problem is the fiction created by the NCAA of the "student athlete".  That fiction allowed the NCAA to escape workers compensation liability and also allows them to claim tax exempt status---because they are not a commercial enterprise---how crazy is that notion.  Take away the tax exempt status and discontinue their ability to steal and monetize the names and likeness of the players and you just took away the fancy wine, tenderloin steak, and truffles that the NCAA has been living off for a very long while.

Whether the atomic bomb goes off in the O'Bannon case or not, the die has been cast.  There is just too much money being made off the players.  No one knows for sure when the dam will break, but it is leaking like a Katrina levy, and the NCAA would do well to come up with exit strategy, and come up with it fast.  By all accounts, Bill Battle is a man of character and supremely qualified to craft a solution.  Mr. Emmert would do well to seek his advise as to how craft a solution before one gets crafted for him.

Big Victory for NCAA players in claims against EA Sports

Ryan Hart, the quarterback for Rutgers from 2002 to 2005, filed suit in 2009 accusing EA Sports of using his image and likeness in their video games without his permission and without compensation. The lower court threw out his case.  The Third Circuit Court of Appeals in Washington D.C. has reversed that dismissal

Hart’s right of publicity claim against EA Sports was revived last week in a 2-1 decision by the 3^rd Circuit Court of Appeals. The District Court of New Jersey had granted summary judgment in favor of EA Sports in September 2011, saying that EA's use of Hart's likeness was protected as expressive speech by the First Amendment. However, Judge Greenaway, writing for the majority of the 3^rd Circuit disagreed in his recent opinion stating, “We therefore hold that the NCAA Football 2004, 2005 and 2006 games at issue in this case do not sufficiently transform Appellant's identity to escape the right of publicity claim and hold that the District Court erred in granted summary judgment in favor of Appellee.”

In other words, the court said what everyone already knew and as EA advertises "if it is in the game, it is in the game."

The case has been sent back to the District Court for further proceedings. The ruling could affect a number of similar lawsuits that are currently pending, including the O'Bannon lawsuit currently set for class certification this month in California.

More information can be found at these websites:

http://www.usatoday.com/story/sports/ncaaf/2013/05/22/college-athletes-name-likeness-video-games-federal-appeals-court/2349923/

http://www.businessinsider.com/ryan-hart-sues-electronic-arts-2013-5

http://www.nj.com/rutgersfootball/index.ssf/2013/05/former_quarterback_ryan_hart_g.html

The 3^rd Circuit’s full judicial opinion can be found here:

http://scholar.google.com/scholar_case?case=8853182257956538242&q=%22ryan+hart%22&hl=en&as_sdt=2,1&as_ylo=2013