On Wednesday, December 16, 2015, the Ninth U.S. Circuit Court of appeals denied a rehearing request for its prior ruling in O’Bannon v. NCAA — the case involving the issue whether Division I student athletes should be compensated.
Ed O’Bannon, the named plaintiff representing student athletes, seemingly won at the trial court level. District Judge Claudia Wilken found the NCAA’s ban on compensating student athletes violates federal antitrust laws. Judge Wilken concluded that “less restrictive” means were available to preserve student athletes’ amateur status. She therefore held that NCAA member universities were permitted to engage in the following acts: (1) universities may grant to student athletes the full cost of attendance; and (2) universities may allow student athletes to receive up to $5,000 per year as compensation for the use of their names and likenesses in markets such as sports video games.
On appeal, the Ninth Circuit — made up of a three-judge panel — affirmed Judge Wilken’s ruling in part and reversed it in part.
The Ninth Circuit affirmed the majority of Judge Wilken’s decision. For example, the appellate division agreed that much of the NCAA’s student athlete compensation prohibitions violate federal antitrust laws. However, the court reversed on one of the two compensations measures issued in Wilken’s decision.
The Ninth Circuit affirmed Wilken’s first measure, allowing universities to grant student athletes the full cost of attendance (rather than merely the cost of tuition). But, the court reversed the second measure, which permitted student athletes to be paid $5,000 per year for the use of their names and likenesses (vacating the NCAA’s ban on compensation for such use). The court reasoned: “In finding that paying students cash compensation would promote amateurism as effectively as not paying them, [Judge Wilken] ignored that not paying student-athletes is precisely what makes them amateurs.”
The plaintiffs in O’Bannon subsequently requested a rehearing. Rehearings in the Ninth Circuit are conducted by an eleven-judge panel. The panel, however, denied a rehearing.
Following the denial of the rehearing, the parties now have 90 days to file an appeal with the United States Supreme Court. Donald Remy, the NCAA’s chief legal officer said in a statement:
The NCAA is pleased with the U.S. Ninth Circuit Court of Appeals denial of the plaintiffs’ en banc rehearing request. As we said previously, the petition did not meet the standard required for a rehearing en banc. … As I suspect the plaintiffs’ counsel will explore next steps, so too will the NCAA.