"They said to athletes, 'You can't use your image for commercial purposes, and we'll protect your image from that'," said Rob Carey, legal counsel for the plaintiffs in the lawsuit. "And yet they did the opposite and used their likeness for profit. We clearly had strong evidence against them, and that's why they settled."
The two settlements mean an end to case that was scheduled to see trial in March 2015. The lawsuit commonly known as the Keller case after former Arizona State and Nebraska quarterback Sam Keller who first took the NCAA to court in 2009.
All players who were on Division I football and basketball rosters for teams in the games between 2003 to the present can file a claim for a share of the $40 million settlement. Players who were represented in the games from 2007 can further claim a share of the NCAA's $20 million antitrust settlement. Carey estimated that as many as 100,000 former and current players could file to be a part of the class and get a chunk of the change.
It's the first major concessions the NCAA has made to players who say they're owed compensation for their college athletic accomplishments. For years, the NCAA has maintained a hard line against settling such cases to avoid having to upend their economic model of providing scholarships and covering other costs through stipends for athletes.
The settlement could create an expensive ripple effect, potentially hurting the NCAA in other outstanding litigation. Most notably, former UCLA basketball star Ed O'Bannon's case against the NCAA is in trial this week, a case that could potentially force the organization to pay athletes for all forms of likeness not just video games. The Keller and O'Bannon case attorneys were working together until the last few weeks, as O'Bannon was more prepared to go to trial.
D.C.-based crisis consultant Dan Hill, who handles issues arising from lawsuits, said the NCAA is already losing ground in the court of public opion.
"The NCAA is fighting so many battles on so many different levels, it's hard for them to manage them all at once," he said. "I don't know if they've done a good job of defending themselves outside of the courtroom. They're reputation has already taken a hit, they need to find a way to fight back somehow to win over the general public."
Carey said the settlement will involve a "robust" notification program that will seek out former and current players by e-mail and postal service to get them to file a claim for the payout. A website will allow the athletes to verify that they were either represented in the games or were on a roster of a school in the games.
Carey estimated that the combined settlements will pay out an approximate minimum of $750 for each individual use of a player's image.
Chief legal officier Donald Remy said in the NCAA statement, "In no event do we consider this settlement pay for athletics performance." An NCAA spokeswoman declined to comment further on the settlement outside of the release.