SBD/August 29, 2014/Colleges

Filing Hints At NCAA's Appeal Strategy In Ed O'Bannon Player Likeness Case

The NCAA on Thursday night "strongly hinted at the primary arguments it plans to make in its appeal" of U.S. District Court judge Claudia Wilken's decision in the Ed O'Bannon class-action antitrust lawsuit, according to Steve Berkowitz of USA TODAY. In a filing with the 9th U.S. Circuit Court of Appeals, lawyers for the NCAA "indicated that they will take issue with two of Wilken's fundamental rulings during the course of the case." The first is a '84 Supreme Court ruling "on which the NCAA had relied for decades to preserve its amateurism system does not apply in the O'Bannon case." The other is that the First Amendment "does not bar athletes from making claims related to the use of their names and likenesses in live TV broadcasts." The NCAA repeatedly argued during the O'Bannon case that the plaintiffs' claims "should be rejected because of the 1984 Supreme Court ruling in NCAA v. Board of Regents." That case was primarily about "control of college football TV rights but the opinion on which included the statement that 'in order to preserve the character and quality of the (NCAA's) 'product,' athletes must not be paid, must be required to attend class and the like.'" On the First Amendment issue, the NCAA had "argued that it -- combined with various laws and prior court rulings -- combined to prohibit athletes from claiming that they are entitled to compensation for the use of their names, images and likenesses in live telecasts." If Wilken had "accepted that position, it would have knocked out the plaintiffs' claim that football and men's basketball players should be cut in on the NCAA's and the schools' billions in annual TV revenue" (USATODAY.com, 8/29).
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