O’Bannon Evidence to be Used by both Litigants in NCAA Antitrust Trial

In a controversial move, U.S. District Judge Wilken has announced that, in the antitrust action brought by student athletes against the NCAA, she will admit evidence from the O’Bannon case, despite objections from both litigants.

In the case at hand, the athletes are pursuing claims that the NCAA illegally restrains their income potential by prohibiting pay beyond the students’ scholarship. Judge Wilken’s statement permitting the use of O’Bannon evidence will allow the NCAA in to use O’Bannon’s expert testimony for impeachment purposes, and will also allow the plaintiffs to refer to O’Bannon’s ruling in regards to relevant NCAA arguments and exhibits.

As we have previously reported, the landmark case of Ed O’Bannon v. NCAA addressed allegations against the organization accusing the defendants of violating anti-trust laws by price-fixing. Judge Wilken presided over the O’Bannon case, as well, ultimately holding that “the evidence…demonstrates that student-athletes themselves are harmed by the price-fixing agreement.” Subsequently, the Judge issued an injunction prohibiting the NCAA from setting a deferred compensation limit of less than $5,000 for every year an athlete remains eligible to play.

Here, the move by Judge Wilken to admit O’Bannon evidence in the current action is controversial because both parties initially objected to such admission. The plaintiffs argued that the NCAA should be barred from including defense expert testimony and reports, and the NCAA argued that the athletes should only be allowed to reference association rules that were changed or originated after the O’Bannon decision.

Now, with the permission of Judge Wilken, the NCAA will likely introduce O’Bannon’s sworn testimony to impeach witnesses on cross-examination, and the players can present evidence on all rules they are challenging, including those rules previously challenged in O’Bannon.

The bench trial for this action is scheduled for September 4, 2018.

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