O’Bannon Trial: The Ball is Now in the Hands of Judge Wilken

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After 24 witnesses over 15 days of trial, it has finally come to an end, with a final round of filings scheduled to end on July 10.  Presiding Judge Claudia Wilken is expected to render her decision by early August.  No matter who wins, there will be appeals.

During the last day of the trial, the NCAA articulated the plaintiffs must show all the elements in an antitrust case: buyer, seller, market, product, agreement, restraint, antitrust injury and victim.  The NCAA further argued its rules founded on amateurism, a core value of the NCAA, never harmed consumers.  Therefore, even if the NCAA harmed student-athletes by preventing them from monetizing on their names, images, and likenesses, the plaintiffs could still lose.  According to the NCAA, the harm must be done to specific markets, not to individuals, in an antitrust case.

Judge Wilken also had some fundamental questions about this antitrust case that neither side could agree on.  What is the “market” at issue? Who are the “buyer” and the “seller” of this “market?”  What is the “price” and what is the “harm?”

Furthermore, she seemed to be unsatisfied with the arguments presented by both sides in other areas as well.  She continued to doubt the NCAA’s contention that paying the players would cause college sports fans to lose interest and also questioned why the plaintiffs did not present survey data to argue against the NCAA’s theory.  In addition, she suggested maybe the schools could afford to pay student-athletes from coaches’ salaries.  Regarding the video-game market, the judge wondered if there was any true substitute for a college sports video game.  Essentially, she asked whether the consumers were sufficiently harmed by the lack of new college sports video games.  Finally, at the end of the trial, she presented several hypothetical outcomes from the case and asked the attorneys from both sides to analyze.  All of those hypothetical outcomes were based on the NCAA making some changes to its current rules.

On the same day, the plaintiffs filed a revision of their proposed injunction order that contains 11 prohibitions the NCAA, the schools, conferences and business partners must comply.  In general, the order enables the players to collectively negotiate licensing deals for the use of their names, images and likenesses.  Additionally, the order  establishes a trust fund to pay the players deferred compensation for the use of their names, images, and likenesses.  The proposed order also allows “third-party endorsements” for the players with a permission of their schools.

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