To start off the final round of filings, the plaintiffs in the O’Bannon trial submitted a brief addressing the court’s questions peppered at the end of the trial and rebutting the arguments articulated by the NCAA.
At the end of the trial, Judge Claudia Wilken rigorously asked fundamental questions to determine whether the plaintiffs sufficiently established that the NCAA has violated antitrust law. The plaintiffs reiterated in their brief that pinpointing the buyer and the seller in this case is pointless. Regardless of who the market players are, student-athletes have been harmed in the markets for recruiting student-athletes and for their names, images, and likenesses (NILs). The brief stated that
“[i]n this market, regardless of who is buyer or seller, the restraint prevents [p]layers from receiving any compensation for use of their NILs as part of the transaction for obtaining their athletic services.”
Furthermore, the plaintiffs again attempted to establish that the NCAA is a cartel, not a joint venture as its economic expert contended during trial. Based on the NCAA’s appellate brief in Board of Regents v. NCAA in 1982, the brief said
“the NCAA was not a joint venture for purposes of its television contracts, but was instead a cartel. … Indeed, the district court [in the Board of Regents case] called the NCAA a ‘classic cartel’ with an ‘almost absolute control over the supply of college football.’ “
Revisiting the testimonies of the NCAA’s officials and other expert witnesses, the plaintiffs argued the market for student-athletes NIL rights exists. Especially, the brief pointed to a statement by NCAA president Mark Emmert that the league did not renew its contract with EA Sports because he thought the alleged use of athletes NILs came too close to the permissible line.
During trial, the NCAA also contended that its compensation limits are justified because they promote competition in college sports. Under antitrust law, the plaintiffs must show that negatives from those limits outweigh any positives. In an attempt to rebut the NCAA’s justification, the plaintiffs reiterated that the NCAA failed to establish neither any harms from lifting the limits nor any benefits from having such limits.
Judge Wilken must determine whether all the elements of antitrust case exist here. Then she must decide whether the compensation limits are beneficial to the market(s) and if so, whether there is a less restrictive way to create similar benefits. The NCAA must file its brief by July 8.
O’Bannon plaintiffs answer judge’s questions in written closing
O’Bannon plaintiffs try to make their case in NCAA post-trial brief