As testimony concludes this week in a closely watched trial challenging the NCAA’s ban on paying college athletes for the commercial use of their images, many pundits have already declared the National Collegiate Athletic Association the loser.
The federal judge presiding over the case has shown signs of siding with the plaintiffs, who include Ed O’Bannon, a former UCLA basketball star. The players’ lawyers have poked holes in several key NCAA arguments. And many legal analysts believe that the plaintiffs have proved that the association’s rules prohibiting player pay violate federal antitrust laws.
The NCAA has argued that its rules are necessary to maintain competitive balance, differentiate college sports from the professional ranks, and promote the importance of education. Its witnesses have argued that, if players received a share of licensing revenue, they would treat their studies less seriously than they do now, and fans would lose interest.
To win the case, the NCAA must convince Judge Claudia Wilken, of the U.S. District Court in Oakland, Calif., that the benefits of its rules—including competitive equity and education—outweigh any harm that they may cause.
Such a burden has been difficult for many professional sports leagues and governing bodies to prove, said Matthew Mitten, a law professor and director of the National Sports Law Institute at Marquette University.
“It’s very difficult for a league to show an overriding procompetitive justification for a rule,” he said. “That’s why some people are saying that this is a tough case for the NCAA to win at trial. I would agree with that.”
A Valid Claim?
The NCAA may lose at the district-court level, but its chances would improve on appeal, several legal observers said.
Gary R. Roberts, a former dean of Indiana University’s Robert H. McKinney School of Law, in Indianapolis, believes that Judge Wilken will rule in the plaintiffs’ favor, issuing an injunction that would bar the NCAA from limiting player pay.
But Mr. Roberts, a past president of the Sports Lawyers Association who has taught classes on antitrust law, does not believe the O’Bannon plaintiffs have a valid antitrust claim.
“Antitrust law is designed to protect consumers from rigged markets,” he said. “It’s hard for me to imagine how consumers or consumer welfare is damaged by not allowing college football or basketball players to negotiate publicity-rights contracts.”
If the NCAA loses in district court, it could appeal to the U.S. Court of Appeals for the Ninth Circuit, which Mr. Roberts believes would overturn Judge Wilken’s ruling. If the NCAA were to lose there, it could appeal to the U.S. Supreme Court, a process that could take years.
To appeal, the NCAA would have to cite specific instances in which Judge Wilken had erred. The association’s lawyers have objected to dozens of arguments by the plaintiffs, a pattern that offers the possibility of appeals on numerous issues.
Legal experts say the NCAA could ask the appellate court to review how its amateur rules enhance economic competition among colleges or help consumers—questions that cut to the heart of antitrust law, which is designed to make sure consumers get the benefits of competition.
The NCAA could also ask the courts to reconsider its amateurism defense—that the ideal of the amateur student-athlete is worth protecting, even at the expense of commercial competition. Judge Wilken has ruled that such a defense, which has long protected the association from antitrust scrutiny, does not apply here. But an appellate court might feel differently, legal analysts said.
“Often appellate courts take a broader, more policy-oriented approach to an issue than lower courts,” Mr. Mitten said.
What Fans Think
Legal observers note two other significant grounds for an NCAA appeal.
In the months leading up to the trial, the NCAA argued that the First Amendment guaranteed news-media organizations unlimited rights to broadcast college football and basketball games. The association used that defense to justify its limits on paying players for the use of their images.
Judge Wilken rejected the NCAA’s argument that live television broadcasts are commercial speech. Because of the broader interest in that issue—broadcasters have filed supporting briefs in the NCAA’s defense—an appellate court would probably feel compelled to consider it. But it’s uncertain how higher courts might view the issue.
The NCAA could also find fault with the plaintiffs for failing to introduce into evidence a consumer survey showing how a change in NCAA rules would affect fan interest, one of the core issues in the case.
On Wednesday an NCAA witness described a handful of consumer surveys that ostensibly show fans would have less interest in watching college sports if they knew that athletes were making money beyond the value of their scholarships.
The plaintiffs tried to discredit the methodologies of the surveys, saying that the surveys did not ask fans specifically how they would view players’ being paid for the commercial use of their images.
But the plaintiffs’ expert witness did not conduct his own surveys to rebut the NCAA’s claims. Such an oversight could prove damaging to the plaintiffs on appeal.
