O’Bannon and Former Student-Athletes Continue Pursuit of Supreme Court Review

On May 26, 2016, former NCAA student-athletes, led by former basketball player Ed O’Bannon, filed a reply brief further urging the Supreme Court to review the Ninth Circuit’s reversal of compensation for the NCAA’s use of student-athletes’ image and likeness. The student-athletes’ contend that the NCAA misconstrued Supreme Court precedent to justify using amateurism as an excuse for its anti-competitive rules which violate federal anti-trust law.

This request to the Supreme Court was the result of a recent Ninth Circuit decision which found the NCAA officially subject to anti-trust law. However, in doing so they rejected the lower district court’s decision to create a deferred trust of licensing payments from the schools to give to each student-athlete for use of their name, image, and likeness capped at $5,000. In the alternative, the Ninth Circuit allowed increased scholarship packages which included full cost of attendance – a modest increase of a few thousand dollars and something the schools which make up the ‘Power 5’ athletic conferences were already doing. As a result of the Ninth Circuit’s decision, the student-athletes filed a petition for the Supreme Court to review the case in March. In May, the NCAA replied with a request to deny the student-athlete’s petition whilst filing a petition of their own for the Supreme Court to tackle the narrow issue of the Ninth Circuit’s holding that amateurism rules are subject to federal anti-trust laws.

The student-athletes’ reply to the NCAA’s petition argues that the issues presented are so closely related and of such great important that the Supreme Court should review the case. In fact, they agree with a great majority of the NCAA’s petition. Specifically, that the Supreme Court should review whether the Ninth Circuit erred in holding that the NCAA eligibility rules violated the Sherman anti-trust act; whether amateurism is a legitimate pro-competitive effect; and, if amateurism is not a valid pro-competitive effect, whether the Ninth Circuit’s use of a previous Supreme Court ruling was flawed. In sum, the student-athletes request the Supreme Court to decipher its 1984 decision in NCAA v. Board of Regents of the University of Oklahoma and what it means for amateurism — the now central issue of the dispute. On the one hand, the NCAA explains the Board of Regents decision stands for the idea that not paying athletes is amateurism and that system makes the whole college sports enterprise possible. On the other, student-athletes argue amateurism is not a sufficient enough counterweight to the anti-competitive effects their eligibility rules have on student-athletes.

In further support of their position, their reply takes the position that the Ninth Circuit set bad precedent. Particularly, in striking down the district court’s deferred payments remedy they have undermined all district court’s abilities to create discretionary remedies. Further, they characterize the NCAA as a business first enterprise and not the champions of amateurism in American sport that the courts have held them to be. Finally, they allege the NCAA and the Ninth Circuit used much of the Board of Regents dicta in their ruling while ignoring its actual precedent.

With a case this important and with such huge ramifications it is likely the Supreme Court will grant certiorari to clarify its earlier precedent and set a standard for college sports in America to abide by.

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