9th Circuit Hears O’Bannon Antitrust Appeal Arguments

On Tuesday, March 17, NCAA March Madness began in more than one respect.  In addition to the start of the NCAA Men’s Basketball tournament, Tuesday saw the beginning of the much anticipated NCAA appeal to the 9th Circuit challenging the outcome of O’Bannon v. NCAA.

Last August, Judge Claudia Wilken ruled in the case that the NCAA was unreasonably restraining trade in violation of antitrust law by limiting schools’ scholarship amounts to less than the full cost of attendance.  The ruling provides an injunction to take place on August 1st of this year, allowing schools to offer scholarships equivalent to the full cost of attendance, including transportation and other auxiliary costs.  Judge Wilken also held that players could be compensated for the use of their name, image, and likeness in the amount of no less than $5,000, which is to be placed in trust for the students to receive after their NCAA eligibility expires.

Attorneys for the plaintiffs and defendants argued their side of the appeal in front of a three-judge panel for the 9th Circuit for over 80 minutes.  Judges Thomas, Quist, and Bybee asked each party pointed questions expressing concern about Wilken’s ruling.  Noting that property rights to name, image, and likeness is a clouded area of law, one judge questioned where payments for such property rights were to stop, and how such payments would be enforced.  The defense used this issue to argue that the ruling allowing for a minimum payment of $5,000 for likeness rights is paying student-athletes to play sports, which is expressly prohibited by the NCAA amateurism model.  Judge Quist also questioned whether such payment would eventually trickle down to high school players.

The three judges hearing the O’Bannon case are the same three judges who ruled in 2013 that Electronic Arts couldn’t rely on First Amendment free speech to recreate NCAA players’ likenesses in their sports videogames.  The judges are expected to make their decision regarding Judge Wilken’s order within a month or two.

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