While the O’Bannon appeal from the Ninth Circuit awaits a response from the Supreme Court, both sides have continued to strategically downplay the opposition’s arguments. Most recently, O’Bannon filed a July 1, 2016 brief advising the Supreme Court not to consider whether the Ninth Circuit should have barred the antitrust suit over compensation for athletes’ images and likenesses on First Amendment grounds. O’Bannon argues that the constitutional argument is not a central issue to the case.
O’Bannon, on behalf of the former NCAA athletes, has pushed back against the NCAA’s position that there has been no antitrust injury in the case. The NCAA suggests that because the former athletes could not succeed under a First Amendment publicity rights case, the case should be decided in favor of the NCAA. O’Bannon, however, posits that the First Amendment question is not ripe, therefore the case can only be argued as an antitrust claim. The athletes suggest that the fact U.S. District Judge Claudia Wilken and the Ninth Circuit have both found standing based on video game companies willingness to pay for athletes’ name, image, and likeness (NIL).
Additionally, the NCAA has suggested that the O’Bannon case is an opportunity to review the ruling in Keller et al. v. Electronic Arts Inc., where the Supreme Court held that the use of athletes’ NILs was not a transformative use, thus barring immunity from First Amendment publicity rights claims. The Keller decision is not distinguishable from other Supreme Court cases, rather, follows precedential application of the transformative use test. O’Bannon does not believe that this case is the appropriate venue to reconsider the issue, but realizes that the Court may find a different outcome upon review.
O’Bannon seeks to have the NCAA’s bid for Supreme Court review of the First Amendment question kicked from court. Ideally, the former athletes would like the court to grant the NCAA’s petition regarding antitrust issues, with an ultimately holding in favor of the athletes.
The Supreme Court has yet to grant cert to either the O’Bannon or NCAA appeal.