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Categories: Appellate Law

Turmoil in the World of College SportsSteven J. Greenfogel

Since the last time that I wrote about O’Bannon v NCAA, several developments of interest have taken place. On March 15, 2015, the Ninth Circuit heard oral argument on Judge Wilken’s findings that the NCAA’s rules prohibiting payment to college athletes for the use of their name image and likeness rights violated the Sherman Act. The injunction issued by Judge Wilken, allowed schools to offer full cost of attendance and up to $5,000 per year in deferred payments to student athletes. Judge Wilken denied the NCAA’s motion to stay the injunction pending the appeal. Around two weeks ago, the NCAA asked the Ninth Circuit to enter a stay of the injunction pending their ruling on the appeal. Last Friday, the Ninth Circuit stayed the injunction pending the disposition of the appeal.  

If the injunction ever takes effect, schools will be able to offer recruits certain payments in order to obtain their athletic services. While it is not a truly open market where athletes can attempt to get their true worth for the athletic services they provide, it is a major step forward in their effort to reap some benefit from the many millions of dollars that they generate through ticket sales, TV revenue and other incidental monies received by the universities for the games that they put on during the football and basketball seasons. The NCAA has argued that this will create havoc in recruiting and that the schools have no idea as to how to implement the terms of the injunction. The plaintiffs have responded to these assertions by saying that the NCAA and its members have had a year to get ready for this eventuality and should have little problem in understanding the clear terms of the injunction. What will ultimately transpire remains to be seen but it is fair to say that, no matter what happens at the appellate level, college athletes will never be treated as indentured servants again.                          

As the victors at trial, plaintiffs’ counsel were entitled to seek attorneys’ fees and costs from the NCAA. This is provided for by the antitrust laws. Judge Wilken assigned the task of deciding this matter to a Magistrate Judge in the Northern District of California. Despite the NCAA’s protestations that the plaintiffs’ attorneys did relatively little to benefit the class, the Magistrate Judge awarded more than 95% of what the plaintiffs attorneys requested. That fee award is now on appeal before Judge Wilken and will be heard by her in early September. It is expected that, no matter how she may rule, the NCAA will take an appeal to the Ninth Circuit.

No matter what the outcome of the anticipated rulings, it is likely that the Supreme Court will be asked to weigh in on these matters. While the legal road may still twist and turn, if the injunction takes effect, college athletes will never again have to worry about running short of money to buy food or not have the ability to purchase essentials to which every other student seems to have access. For this, they will have a former UCLA basketball player, Ed O’Bannon, to thank. He took a courageous stand for fairness and decent treatment for college athletes. Hopefully, his name will be long remembered by those who follow in his athletic and scholastic footsteps.