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“Commonality” in NCAA Class Action Certification After Wal-Mart v. Dukes

Posted on October 31st, 2012

The U.S. Supreme Court delivered a blow to class action certification last year in the case Wal-mart v. Dukes, 131 S. Ct. 2541 (2011). The case set a precedent that may affect the ongoing NCAA lawsuit brought by players seeking compensation for use of their names, images and likenesses. In opposing class certification, the defendants argue that the commonality requirement of Rule 23 has not been met and complain that expansion of the class to include collegiate atheletes in other sports may result in new legal theories, additional eDiscovery requests and expensive defense productions.

In predicting how this case may be decided, the Wal-Mart case could have an impact. Plaintiffs in the “most expansive class action ever” were one and a half million current and former female employees, alleging Wal-Mart engaged in gender discrimination in their wage and promotion in violation of Title VII of the Civil Rights Act of 1964. Both the district court and the Court of Appeals for the Ninth Circuit, sitting en banc, certified the class. Justice Scalia, writing the opinion for the divided Supreme Court, however, reversed and denyed class certification.

Scalia disagreed that the plaintiffs had satisfied the commonality requirement finding that the discrimination was not a company-wide policy, but rather a series of local decisions that were ignored by the company resulting in ongoing discrimination.  Scalia also found that plaintiffs had not demonstrated the requisite “significant proof” that the company operated under a general policy of discrimination.

While legal minds differ on the reasoning and impact of the Wal-Mart decision, the facts of the NCAA anti-trust case are very different.  Here, the NCAA policy was administered on a collegiate wide basis as none of the players were compensated for the use of their names, images and likelihoods.  Given that the policy dictates that none of the players could be compensated regardless of sport, the commonality requirement of F.R.C.P. 23 appears to be satisfied.

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