Three Questions for the Third Week of the O’Bannon v. NCAA Trial
As the O’Bannon v. NCAA trial enters its third
week, commentators are already predicting the fall of the “college sports cartel.” In
the case, a group of about 20 current and former college men’s basketball and
football players, led by former UCLA basketball player Ed O’Bannon, are
alleging that NCAA restrictions, which prevent payment to players for use of
their name, image, and likeness, violate federal antitrust laws. They say
that by exerting control over the athletes’ publicity, the NCAA deprives
athletes of profitable use of their likeness and fixes the price of players’
names and images at zero in violation of the Sherman Act. The players are
seeking to enjoin the NCAA’s practices.
The NCAA counters that the plaintiffs’ arguments
are baseless. They claim that their amateurism rules are necessary
and the future of college sports will be jeopardized if amateur rules are
overturned by the courts. Much of the trial has been consumed by
expert testimony, as both sides have put forth experts to opine about whether
the amateurism rules are necessary for maintaining the public’s interest in
college sports. The NCAA also claims that the athletes have waived
their right to use their own images, pointing to the NCAA bylaws and forms
which must be signed by all players, authorizing the NCAA to use an athlete’s
name or picture to promote the NCAA.
Even before the judge issues her ruling in the
case (expected later this summer), this case has highlighted many interesting
questions related to antitrust law as applied to college sports. First,
is “promoting amateurism” a sufficient pro-competitive justification for the
NCAA’s actions to survive antitrust scrutiny? The NCAA argues that
banning athlete compensation is pro-competitive, leveling the playing field
among colleges and promoting the education of college athletes. But the judge in the case has already
shown she will not tolerate a general appeal to “amateurism,”
noting that the term is generally difficult to define. Instead, the NCAA
is attempting to show how the compensation restrictions promote fair recruiting
and athletic and educational integration.
Second, is there a market for players’ licensing
rights? In order to prove a violation of the Sherman Act, plaintiffs must
show that there is a market that is being harmed. Executives from EA
sports, a company that uses players’ likenesses in video games, have testified
in the trial that they would have been willing to pay players for the use of
their likeness, but were prohibited by NCAA rules. Interestingly, in a related settlement,
athletes have already settled claims against EA Sports, whereby about $40
million will be paid out to athletes whose images were used in the company’s
games. Under the terms of this settlement, payment will be much higher to
some players—whose game avatars are used more frequently—than to others who are
not prominently featured in the game. This in itself may suggest that there
is a market for individual players’ likenesses.
Third, and perhaps of most interest for those of
us who love college sports, what will happen if the NCAA is found to be in
violation of the Sherman Act? The plaintiffs are seeking an injunction in
the case, barring the NCAA from forcing athletes to sign forms which give up
the right to use their own likeness. If the NCAA was enjoined from the
use of this form, regulation could fall on the individual conferences, who
could then determine how players’ likenesses may be used and whether their
athletes could be compensated. If each conference had its own rules
related to player compensation and publicity, then a particular conference’s
rule could arguably survive, assuming that conference did not have market
power. Alternately, athletes could begin to negotiate payments as part of
the recruiting process and licensing agreements for use of their name and
image.
As the trial wraps up, we will continue to see
the parties’ attempts to answer these (and other) antitrust questions in the
case, and the judge’s ruling will determine whether college sports as we know
it begins to look a little different. Regardless of the outcome of the
case, you may want to buy your favorite player’s jersey while you still can—some
schools have already removed
specific player names and numbers from their fan jerseys in response to the suit.
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