Respot from usatoday.com. It reads….
A federal judge in California has refused to grant class-action status to a lawsuit concerning the marketing and sale of college athletes’ photographs through school athletics websites that involves CBS Interactive, a division of CBS Corp.
CBS Interactive — in addition to the popular CBSSports.com website — has a unit that provides a range of website management and e-commerce services college athletics departments.
The suit, originally filed in June 2013, alleges that schools — through their CBS-assisted athletics websites — offered photographs of athletes, as well as associated merchandise such as frames and calendars “without offering compensation to or obtaining consent from these student-athletes.” With former Texas-El Paso football player Yahchaaroah Lightbourne as the named plaintiff, the case began against two smaller companies but was amended to include CBS Interactive in April 2014.
Had the case become a class action, CBS Interactive potentially faced hundreds of millions of dollars in statutory penalties alone. Nearly 650,000 images are involved in the case — and the plaintiffs proposed to pursue under federal law and under California law, which provides for the possibility of a $750 penalty per image or per person in the images.
However, U.S. District Judge Josephine L. Staton ruled on Thursday evening that the case could not be certified as a class action under California law and did not meet the federal legal standards for class-action status. On Friday, she held a hearing on CBS Interactive’s motion for summary judgment – a ruling in its favor without the case going to trial.
Staton said California law could not be applied for two reasons. While CBS Interactive is in California — which the plaintiffs argued should be the controlling consideration — she determined that was outweighed by evidence that the photos of the athletes were being uploaded from around the nation to online stores whose servers were located across the West. “It is far from clear that this ‘wrong’ took place in California, as opposed to throughout the nation,” she wrote. In addition, because members of the proposed class of plaintiffs are residents of many states other than California, Staton ruled that those states’ laws also must be considered.
The federal standards for a case to become a class action basically involve a judge determining that the case involves questions of law or fact that are common to the prospective wider class of plaintiffs and that having the case proceed as a class action is the best way to fairly and efficiently handle it.
Staton’s determination that individual – rather than common — legal issues were predominant in the Lightbourne case began with a dispute over the meaning and intent of UTEP’s broadly worded consent form, which Lightbourne signed during three different seasons. The form stated that athletes agreed to let the school or its agents “make copies of, use, sell, and distribute directly or through a third party, any photographic or other images taken in connection with my participation on a UTEP Intercollegiate athletic team.”
The plaintiffs argued that such a consent form conflicted with NCAA rules, which require schools to prevent the use of athletes’ pictures on commercial items, including the merchandise at issue in this case.
But Staton said the matter would “require, at the least, an institution-by-institution analysis to determine which athletes signed similar consent forms, which athletes did not … and so on.”
She added that there also was the question of implied consent because “Lightbourne stated at his deposition that he knew photographers were taking photos of him and that he did not object to their presence or ask anyone at UTEP to stop using his photos.” Staton said the issue of implied consent “also would require individualized determinations across the class.”
On top of all this, Staton said there were further complications raised by the class of plaintiffs being from many different states.
As a result, she wrote, the case becomes one in which various individual inquiries would “predominate over any common questions” and “render this litigation totally unmanageable.”
“We are very pleased with the court’s decision,” CBS Interactive spokeswoman Christine Castro said.
Robert Carey, the plaintiffs’ lead attorney, said his side is “considering all options” regarding the case’s future.
“Without doubt CBS was commercially exploiting the images of student athletes from across the country,” Carey said via e-mail. “We just disagree with the court and continue to believe that California law applies when all of the wrongful conduct occurs in California.”