Ninth Circuit Overturns Decision to Pay Student-Athletes for Use of Their Names, Images, or Likeness - Fordham Intellectual Property, Media & Entertainment Law Journal
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Ninth Circuit Overturns Decision to Pay Student-Athletes for Use of Their Names, Images, or Likeness

Ninth Circuit Overturns Decision to Pay Student-Athletes for Use of Their Names, Images, or Likeness

 

Sports generate plenty of drama and controversy on the field of play – but a recent Ninth Circuit decision, that Student-Athletes would only be allowed scholarship money “up to the full cost of attendance,”1 continues a dramatic and controversial battle off the field between the NCAA and its players.

The initial case was filed by retired UCLA basketball player Ed O’Bannon, as well as nineteen others, alleging an antitrust violation against the NCAA for not allowing its athletes to get a share of revenues generated from their name, image, and likeness. On August 8, 2014, U.S. District Judge Claudia Wilken agreed with O’Bannon, and held that the NCAA cannot prohibit athletes from selling the rights to their names, likeness, or image.2

Judge Wilken ruled that the NCAA could not prevent schools from paying its FBS football players, and Division-I basketball players, “up to the full cost of attendance.” Judge Wilken also ruled that the NCAA could not prevent schools from paying its FBS football players, and Division-I basketball players, $5,000 cash for revenue generated by the use of their names, images, and likeness. The money would aggregate for each year that the player competed, held in a trust for each athlete, and then distributed to each athlete, at an even amount relative to their fellow athletes, once they left their school. The money being put towards the $5,000 had to come through revenue generated from the players’ name, image, or likeness.

In its recent ruling, the Ninth Circuit reviewed the decision made by Judge Wilken, and in an Opinion written by Ninth Circuit Judge Jay Bybee, affirmed in part, and overturned in part, the lower court’s decision.3

The Ninth Circuit agreed that the NCAA’s current structure, preventing athletes from earning any sort of compensation from their name, image, or likeness, does violate federal antitrust laws. “‘The NCAA is not above the antitrust laws, and courts cannot and must not shy away from requiring the NCAA to play by the Sherman Act’s rules,’ the panel wrote. ‘In this case, the NCAA’s rules have been more restrictive than necessary to maintain its tradition of amateurism in support of the college sports market.’”4

The Ninth Circuit disagreed, however, with the lower court’s decision regarding the $5,000 payment permission to the athletes. In deciding so, the court stated, “The difference between offering student-athletes education-related compensation and offering them cash sums untethered to educational expenses is not minor; it is a quantum leap.”5

This decision – for the time being – has a tremendous impact on the landscape of collegiate athletics, and the rift between the NCAA and its players seeking additional compensation. Many believe the court overturning the $5,000 payment was the pivotal decision in this case, and argue that this is a tremendous victory for the NCAA.6 I would argue, though, that the decision in affirming the NCAA’s violation of federal antitrust laws is a more important point. Although the court has rejected the initial attempt at a form of additional compensation, they have left open the door for future ideas.

Unsurprisingly, both sides are looking to appeal the Ninth Circuit’s decision. The first type of appeal would be an en banc review to be heard by eleven of the twenty-nine judges on the Ninth Circuit – as opposed to the three judge panel which made the initial ruling. If that appeal were to not be heard, as en banc reviews are extremely rare, the parties can petition the U.S. Supreme Court to render an opinion on the matter. Getting a U.S. Supreme Court to accept the petition, however, is another highly rare situation.

Whether or not this case continues along the appellate track it is currently on, the decision made by the Ninth Circuit will have a major impact moving forward. There is likely to be a significant number of attempts made by current and former athletes to be compensated for their services, and that is due in large part to the Ninth Circuit’s decision.

 


  1. Zachary Zagger, NCAA Scores Big At 9th Circ. In Amateur Sports Fight, Law360 (Sept. 30, 2015, 10:25 PM), http://www.law360.com/articles/709455/ncaa-scores-big-at-9th-circ-in-amateur-sports-fight [http://perma.cc/E2S5-7F6E].

  2. O’Bannon v. Nat’l Collegiate Athletic Ass’n, 7 F.Supp. 3d 955 (N.D. Cal. 2014) aff’d in part, vacated in part sub nom. O’Bannon v. Collegiate Athletic Ass’n, No. 14-16601, 2015 WL 5712106 (9th Cir. Sept. 30, 2015), available at http://www.nacua.org/documents/Wilken-NCAA-Order_8-11-14.pdf [http://perma.cc/984H-B2US]. 

  3. O’Bannon v. Nat’l Collegiate Athletic Ass’n, No. 14-16601, 2015 WL 5712106 (9th Cir. Sept. 30, 2015), available at http://cdn.ca9.uscourts.gov/datastore/general/2015/09/30/14-16601%20Opinion.pdf [http://perma.cc/5JQE-AHEQ].

  4. Mark Schlabach, Court strikes down payment plan; agrees NCAA violates antitrust laws, ESPN (Sept. 30, 2015), http://espn.go.com/college-sports/story/_/id/13777916/appeals-court-nixes-plan-pay-student-athletes-ed-obannon-case-agrees-ncaa-violates-antitrust-laws [http://perma.cc/F5JS-8WK5].

  5. Mark Schlabach, Court strikes down payment plan; agrees NCAA violates antitrust laws, ESPN (Sept. 30, 2015), http://espn.go.com/college-sports/story/_/id/13777916/appeals-court-nixes-plan-pay-student-athletes-ed-obannon-case-agrees-ncaa-violates-antitrust-laws [http://perma.cc/F5JS-8WK5].

  6. Zachary Zagger, NCAA Scores Big At 9th Circ. In Amateur Sports Fight, Law360 (Sept. 30, 2015, 10:25 PM), http://www.law360.com/articles/709455/ncaa-scores-big-at-9th-circ-in-amateur-sports-fight [http://perma.cc/E2S5-7F6E].

Cole Renicker

Cole Renicker is a second-year law student at Fordham University School of Law and staff member of the Fordham Intellectual Property, Media & Entertainment Law Journal. Prior to attending Fordham Law School, Cole graduated from Penn State University with a degree in Business Management.