NCAA hints at O'Bannon case appeal strategy
The NCAA suggested its main arguments to appeal the Ed O'Bannon ruling allowing college athletes to be paid will focus on amateurism and First Amendment rights on live broadcasts.
In a filing Thursday night with the U.S. Circuit Court of Appeals, the NCAA's lawyers responded to a mandatory mediation questionnaire that asks to briefly describe the issues on appeal. The NCAA wrote, The issues on appeal include but are not limited to whether amateurism is presumptively procompetitive for an amateur sports league and whether plaintiffs' claims based on a property right in the use of their (names, images and likenesses) in live broadcasts of sporting events are foreclosed by the First Amendment. USA Today Sports first reported the filing.
U.S. District Judge Claudia Wilken ruled Aug. 8 that the NCAA's restrictions on what Football Bowl Subdivision players and Division I men's basketball players can receive unreasonably restrain trade and violates antitrust law. Wilken's injunction will allow football and men's basketball players to receive scholarships covering their full cost of attendance and deferred payments for the schools' use of their names, images and likenesses (NILs).
For decades, the NCAA's legal defense to avoid paying players has relied upon a landmark 1984 Supreme Court ruling that stripped the NCAA of TV rights and allowed conferences to sell their games. The NCAA has clung to a line from that decision: In order to preserve the character and quality of the (NCAA's) 'product,' athletes must not be paid, must be required to attend class, and the like.
In her October 2013 summary judgment ruling, Wilken wrote the Supreme Court opinion does not stand for the sweeping proposition that student-athletes must be barred, both during their college years and forever thereafter, from receiving any monetary compensation for the commercial use of their names, images and likenesses. In her August judgment after a three-week trial, Wilken noted that the O'Bannon plaintiffs provided enough evidence to show the college sports industry has changed substantially in 30 years.
Wilken also wrote that the Supreme Court opinion stating athletes must not be paid differed from the NCAA's own lawyers in the case. The NCAA's lawyers in 1984 said during an oral argument that the NCAA was not relying on amateurism as a procompetitive justification and might be able to get more viewers and so on if it had semi-professional clubs rather than amateur clubs,' Wilken wrote. In addition, Wilken wrote that the NCAA has inconsistently applied its amateurism rules throughout the association's history and to this day.
Wilken's injunction allows the NCAA to create a cap on the deferred licensing money as long as the cap is not less than $5,000 per year. It's what's called a less-restrictive alternative to the antitrust violation found.
By appealing based on amateurism, the NCAA could find relief or perhaps an even more damaging ruling. Conceivably, the appeals court could determine that amateurism is so illegitimate that it's unreasonable for there to be any cap. That's the argument attorney Jeffrey Kessler makes in his class-action lawsuit against the NCAA and the five major conferences.
Another issue the NCAA suggested it will appeal in O'Bannon relates to the First Amendment and live TV broadcasts -- an area that generates billions of dollars for schools. The O'Bannon plaintiffs have sought to share that licensing revenue.
Earlier in the O'Bannon case, the NCAA claimed that the First Amendment and various state laws prevent college athletes from asserting any rights of publicity during game broadcasts. Wilken rejected that argument in April, writing that the First Amendment does not guarantee media organizations an unlimited right to broadcast entire college football games and questioned whether college athletes validly transfer their rights of publicity to another party.
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NCAA hints at O'Bannon case appeal strategy