O’Bannon Plaintiffs Urge 9th Circuit to Affirm Pay-Rule Ban

On January 23, O’Bannon Plaintiffs filed a response to NCAA’s appellate brief that asked the Ninth Circuit to reverse the lower court’s decision allowing student-athletes to be paid.

In a 851-page long filing, the plaintiffs argued that the a limited compensation to $5,000 for every year of academic eligibility pursuant to the court’s decision is “such modest payment” to jeopardize NCAA’s policy on amateurism, a concept that has evolved and eroded admittedly by NCAA.  Further, the plaintiffs stressed that because the injunction was not mandatory, but prohibitory, “[s]chools that cannot afford to re-allocate any portion of their athletic budget for this purpose would not be forced to do so.”

Moreover, the plaintiffs rebutted the NCAA’s argument that its no-pay rules are procompetitive under the Supreme Court case NCAA v. Board of Regents of the University of Oklahoma.  The plaintiffs argued the Supreme Court decision simply requires courts to engage in a rule of reason analysis to find antitrust nature of an activity under the Sherman Act.  Additionally, the plaintiffs pointed out that the experts from both sides have stated that NCAA is a cartel that restricts competition.

Although not tackled in the filing, hiring Oliver Luck as new NCAA executive vice president after the district court’s pay-rule ban may put NCAA in a somewhat vulnerable position because Luck publicly has expressed his support for changing the NCAA’s compensation rules.  Luck spoke of the “fundamental right” of student-athletes to receive compensation for the use of their names, images and likenesses.  “I believe both as an individual and as an attorney in those fundamental rights that a student-athlete has, and I’m looking forward to having a longer dialogue with Mark [Emmert, NCAA President] and many others.”

The NCAA’s reply is expected on or before February 11.  Although the NCAA has requested for oral arguments, the Ninth Circuit has not addressed that request yet.

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