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First Monday in October Might be Big Day for College Athletes

No, the First Monday in October is not when the first poll for the College Football Playoffs is released.  And it is not the day of an important college football match-up.  However, it still might be an important day for college athletes—and the NCAA.

As many know, the First Monday in October is when the Supreme Court reconvenes.  It is also likely to be when we will find out whether the Supreme Court will hear the O’Bannon case, the Court having the pending petitions for a writ of certiorari teed up for decision at their September 26th conference.  O’Bannon v. NCAA, 802 F.3rd 1049 (9th Cir. 2015).

This is not the occasion for a full-blown discussion of the O’Bannon right of publicity class action.  Suffice it to say for now that both the district court and the United States Court of Appeals for the Ninth Circuit found that the NCAA rules that barred athletes for getting compensation for their likenesses, for example, appearing in video games failed scrutiny under the antitrust rule of reason.  The Ninth Circuit, however, set aside the district court’s innovative relief which would have permitted payments to student-athletes up to $5,000.

Both the NCAA and the O’Bannon plaintiffs have filed cert petitions, giving the Supreme Court the opportunity to review and opine on all aspects of the case.  The Supreme Court often limits its certiorari grant to specific questions presented in the petition, so the decision is not “all or nothing” as to what to review.

Meanwhile back in district court, the NCAA raised the Ninth Circuit O’Bannon ruling to get rid of the injunctive relief portion on the still-pending attack on NCAA restrictions on compensation related to athletic performance.  When the consolidated group of lawsuits were filed, the NCAA had in place a cap on the grant-in-aid (GIA) that student athletes could receive—the value of tuition, fees, room and board and required course books.  While the litigation has been pending, these rules changed under autonomy granted to the conferences to allow schools to provide student-athletes with GIAs for up to their cost of attendance.

On August 6th, Judge Wilkins acknowledged that O’Bannon limits the types of relief plaintiffs may seek but it does not provide a basis upon which a judgment on the merits can be rendered since plaintiffs have also challenged rules prohibiting the provision of “in-kind” and other benefits as well as cash payments.  In re: National Collegiate Athletic Association Athletic Grant-In-Aid Cap Antitrust Litigation, No. 14-md-2541 CW (N.D. Cal. Order Aug.6, 2016) Of course, if the Supreme Court grabs and runs with the ball, the score on these issues could change dramatically as well.

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Bruce D. Sokler

Member / Co-chair, Antitrust Practice

Bruce D. Sokler is a Mintz antitrust attorney. His antitrust experience includes litigation, class actions, government merger reviews and investigations, and cartel-related issues. Bruce focuses on the health care, communications, and retail industries, from start-ups to Fortune 100 companies.