Amateurism Lives To Fight Another Day in O’Bannon v. NCAA

This five year old lawsuit asked if the NCAA’s amateurism rules against compensation for student athletes were in violation of the antitrust laws. The core that made the litigation possible in the first place was the expanding willingness of state legislatures and courts to recognize and enforce rights of publicity─the right to control commercial exploitation of your life if the public is even slightly interested in it. No one questioned the idea that big time college athletes, their faces, numbers, uniforms, and moves were valuable.  

Last year the federal district court in the case decided the amateurism rules violated antitrust law and went beyond that to order a detailed deferred compensation scheme of up to $5000 a year for top football and basketball players to be held in trust and paid to them after they leave school. The Ninth Circuit Court of Appeals today agreed there was an antitrust violation, but the compensation scheme is gone. 

Bose McKinney & Evans LLP attorney Gary R. Roberts is also Dean Emeritus & Gerald L. Bepko Professor of Law at the Indiana University McKinney School of Law. He’s been involved in sports and antitrust law throughout his career and is spending the day today talking to media about the decision.  

He shared this quick comment with me between calls, and if you wonder what the decision really means for the future please read this: 

“Even though the NCAA and its Division I member institutions will breathe a sigh of relief that they now do not have to create those $5,000 per year trust funds for all their football and men’s basketball players (so it’s essentially status quo for now), the decision portends a difficult future for the NCAA in that it finds that any rule the NCAA adopts that limits what student-athletes can do or what they can receive is subject to being held illegal under the antitrust laws if a federal judge thinks a “less restrictive” rule is more fair or better policy. Unless the Supreme Court takes up this case and reverses this decision (which would be a long shot), I think there will now be a big push for Congress to grant some type of antitrust exemption to protect college athletics from an avalanche of antitrust lawsuits beyond the many already filed.”

O’Bannon v NCAA 9th Circuit decisions Sept 30 2015

About Craig Pinkus

Craig Pinkus is a partner in the Intellectual Property Group. He also is a member of the Litigation and the Sports, Entertainment and Media Groups. He assists clients with a broad range of disputes and transactions involving all areas of intellectual property, entertainment, and other complex business arrangements. He has conducted trials and arbitrations throughout the United States and has argued appeals before the Seventh, Sixth and Federal Circuit Courts of Appeal, the Indiana appellate courts, and United States Supreme Court.
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