Duane Morris Antitrust Class Action Review – 2024

factual and merits-based, and therefore, were unavailing as a matter of law to defeat class certification. The plaintiffs’ expert advanced a statistical regression model to tie UFC ’ s alleged anticompetitive scheme to allegedly suppressed wages earned by UFC fighters. The model utilized a database that tracked any fighter that fought for an MMA promoter as well as USA Today/MMA Junkie rankings to identify the top fifteen fighters in any of the ten major MMA weight classes. The defendant opposed class certification on the grounds that these inputs were flawed because they were under-inclusive and failed to account for all of the ways that promoters promote fighters. The court rejected these arguments and concluded that the proposed class met the requirements of Rule 23(a) and Rule 23(b)(3). In doing so, the court recognized a relevant antitrust market for elite fighter services. The court also found that UFC dominated that market because it controls, or controlled, in excess of 70% of it. The court also opined that UFC used exclusionary provisions in fighter contracts, coercive tactics, and acquisitions of competing promoters as part of an anticompetitive scheme to frustrate fighters’ ability to fight for rivals and suppress wages. Due to differences in identity rights allegedly at issue and a lack of connection between UFC ’ s anticompetitive scheme and any suppressed identity compensation, the court did not certify the identity-based class. Another potentially significant athlete-compensation antitrust class action saw a court certify various classes certified in the litigation entitled In Re College Athlete NIL Litigation , Case No. 20-CV-03919 (N.D. Cal. Sept. 22, 2023), where the court certified an injunctive relief class and later a damages class in In Re College Athlete NIL Litigation , No. 20-CV-3919 (N.D. Cal. Nov. 3, 2023). In that case, the plaintiffs are student athletes who either have competed or will compete on a Division I team since June 15, 2020. The defendants are the National Collegiate Athletic Association (NCAA) and the “Power Five” Conferences – the Pac-12 Conference, Big Ten Conference, Big 12 Conference, Southeastern Conference, and Athletic Coast Conference. The plaintiffs alleged that the defendants set and enforced a set of rules to restrict the compensation that student-athletes can receive in exchange for the commercial use of student-athletes’ NIL and prohibit NCAA member conferences and schools from sharing with student athletes the revenue they receive from third parties for the commercial use of student-athletes’ NIL. Even though the defendants had suspended enforcement of some of these rules, they did not suspend enforcement of rules that prohibited NIL compensation contingent upon athletic participation or performances or enrollment at a particular school, including compensation for lucrative broadcast deals that pay conferences hundreds of millions of dollars. The plaintiffs’ complaint included claims for Section 1 violations of the Sherman Act for conspiracy to fix prices and group boycott or refusal to deal as well as a claim for unjust enrichment. The plaintiffs moved for class certification of their claims under Section 1 of the Sherman Act only. The proposed classes were: (i) current and former Division I men ’ s basketball players and FBS football players; (ii) current and former Division I women ’ s basketball players; and (iii) current and former Division 1 athletes that did not play Division I basketball or FBS football. The plaintiffs’ alleged damages fell into three buckets, including: (i) broadcast TV NIL damages, which arise out of student-athletes having been deprived of compensation they would have received from conferences for use of their NIL in broadcasts of FBS football or Division I basketball games in the absence of the challenged restrictions; (ii) video game damages, which arise out of student-athletes having been deprived of compensation they would have received from video game publishers for use of their NIL; and (iii) third-party NIL damages suffered between 2016 and July 1, 2021 when the NCAA started to allow some NIL compensation for student athletes. The defendants argued that the predominance requirement of Rule 23(b)(3) was not met because common proof could not establish antitrust damages on a class-wide basis due to intra-class conflicts that existed among class members in each class as a result of the plaintiffs’ methodology for calculating damages. The court disagreed. Relying largely on the plaintiffs’ experts, the court concluded that every class member suffered an injury as a result of the NCAA ’ s rules, and that every class member would be entitled to damages. For these reasons, the court granted the plaintiffs’ motion for class certification for damages under Rule 23(b)(3). The defendants did not dispute that the putative injunctive relief class of at least 184,000 student athletes met the requirements of Rule 23(b)(2). In certifying the class, the court found that the commonality requirement was met because several issues of law and fact were common to the class, including whether

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