and there have been a couple other big Supreme Court class action decisions recently that will make it hard, in my opinion, for the damages class to be certified. The damages class is the one that only former student athletes belong to, and the chief reason it should not be certified is that ascertaining each former student athlete's damages will require an individualized inquiry (e.g., Ed O'Bannon's likeness is worth a lot more than some benchwarmer's who also happened to be on the 1995 UCLA basketball team). As a result, common issues will not predominate over individual issues, and a class action is not the superior means of adjudicating the claims of the putative class members.
If I were the judge, I'd definitely deny certification for the damages class and probably grant certification for the injunctive class.
It is easier to certify an injunctive class because the plaintiffs do not have to establish that common issues will predominate over individual issues or that a class action is the superior means of adjudicating the claims of the putative class members. This makes sense if you think about the fact that the relief the injunctive class is requesting is simply to have the court void the NCAA's contractual provision requiring current and former student student athletes to assign their right to sell their likeness to the NCAA as a condition of playing NCAA sports. By granting the requested injunctive relief, the court would be remedying the same injury for every member of the putative class in one stroke. The result would be that all current and former NCAA student athletes could now sell their likeness without worrying about breaching the NCAA contract. This is a very efficient use of the legal system, and is the reason why Congress authorized class actions.
Having given my personal view on the merits of this class action, I should add that this case is pending in federal court in California, where the trial courts liberally certify class actions, and the Circuit Court of Appeals for this region of the country (the 9th Circuit) rarely reverses such decisions. I therefore think it is possible the trial court certifies the damages class as well as the injunctive class.
If I were advising the NCAA, I'd appeal the damages class issue all the way to the Supreme Court because I'm 99% sure any damages class would be de-certified. As for the injunctive class, my sense is the Supreme Court would find this class properly certified but I would need to analyze the relevant case law more closely before offering a solid prediction. I know less about injunctive classes because my cases are consumer fraud class actions--so of course the plaintiffs are always seeking money damages.