A federal appeals court has refused to reconsider its landmark ruling that the NCAA did violate antitrust law but nonetheless does not have to pay college football and basketball players a share of profits for use of their names and images.
The 9th U.S. Circuit Court of Appeals denied a request by former UCLA basketball star Ed O’Bannon to rehear the case before 11-judges in what’s called an “en banc” review. The order leaves the athletes with only one remaining potential appeal – the U.S. Supreme Court.
Earlier this year a three-judge panel, voting 2-1, had found the NCAA violated antitrust law by barring schools from paying athletes for the use of their names and images in commercial venues, but rejected a lower court finding that the NCAA should not less than $5,000 per player annually as compensation.
The ruling partially upheld U.S. District Judge Claudia Wilken’s decision that the NCAA operated as an anti-competitive cartel to keep athletes locked out of a rightful share of the profits from the use of their skills. She issued an injunction telling the NCAA it can no longer bar schools from paying athletes for names, images and likenesses (NIL). She didn’t tell the NCAA and athletes how this can be achieved except to say the money could be put in a trust to be paid after the students graduate and that the salary cap cannot be below $5,000.
But Wilken did impose limits. She allowed the NCAA to prevent athletes from marketing themselves, holding that was a legitimate pro-competitve rule.
Since that decision, the NCAA has changed its rules to allow schools to pay athletes the actual cost of college attendance, including stipends of up to $5,000.
NCAA has been gradually changes rules to allow other small perks as criticism mounted about the billions of dollars it collects from contracts while shutting out the athletes.
During the six-week, non-jury trial the lawyers for O’Bannon argued the NCAA violated antitrust law when it barred student athletes from pocketing a share of the sale of licenses to use their NIL in videogames, live TV and other footage. He is the lead plaintiff among a group of 20 current and former student athletes who played Division I men’s basketball or football from 1956 to the present.
Case: O’Bannon v. NCAA, No. C09-3329CW