O’Bannon goes to trial.

Nobody expected Judge Wilken to grant either party’s summary judgment motions, which she didn’t.  What she did do, though, was kneecap much of the NCAA’s position.  Consider the following:

  • “… the First Amendment does not guarantee media organizations unlimited rights to broadcast entire college football and basketball games, a defense used by the NCAA to justify not paying players for use of their names, images and likenesses.”
  • Wilken ruled that the NCAA cannot argue that the limits enable increased support for women’s sports and less prominent men’s sports, because it “could mandate that Division I schools and conferences redirect a greater portion of the licensing revenue generated by football and basketball to these other sports. … The NCAA has not explained why it could not adopt more stringent revenue-sharing rules.”
  • The NCAA had stated that not paying players promotes the integration of education and athletics because it keeps athletes from being treated differently from other students. Wilken rejected a set of statements from university and conference leaders supporting that argument and said the NCAA must show evidence showing the restriction “actually contributes to the integration of education and athletics.”
  • In another argument, the NCAA had said not paying players promotes competitive balance between schools. Wilken wrote that the NCAA presented “some evidence” but that to prevail at trial on that argument, the NCAA “will have to present evidence that the (limit) promotes a level of competitive balance that (1) contributes to consumer demand and (2) could not be achieved through less restrictive means.”

All told, that’s pretty brutal.  As plaintiffs’ lead counsel put it, “The opinion, the way we read it, does not leave a lot of credence to amateurism and shows it’s going to be their burden to establish it at trial…”  The judge tossed the NCAA’s First Amendment and Title IX defenses, which means it’s now going to have to convince a jury of its peers (heh) that somehow it’s okay for schools to pull in billions from commercial marketing of competitive sports while preventing athletes from profiting off their names and likenesses.  Maybe the NCAA can screen Chariots of Fire for the jury.

Oh, and that’s not all.  It may be time for ESPN and its brethren to get a little nervous, too.

“Whether Division I student-athletes hold any ownership rights in their athletic performances does not depend on the scope of broadcasters’ First Amendment rights but, rather, on whether the student-athletes themselves validly transferred their rights of publicity to another party,” Wilken wrote. “Because the record does not demonstrate that all Division I student-athletes validly transferred all of these rights, the First Amendment does not preclude student-athletes from asserting rights of publicity in live broadcasts or re-broadcasts of entire games. Accordingly, the First Amendment does not preclude the existence of a market for group licenses to use student-athletes’ names, images and likenesses in those broadcasts.”

If not for NCAA rules, college athletes “would have an economic interest in being able to sell group licenses for the rights to broadcast their games,” she wrote. Added Wilken: The First Amendment “would not empower broadcasters to undermine the student-athletes’ economic interests” by televising games without group licenses.

In other words, every existing broadcast deal out there, including those conference network partnerships, may be a nullity, because nobody bothered to license the student-athletes’ publicity rights.  Chaos, baby!

If I’m one of the plaintiffs’ lawyers, I’m having a real hard time suppressing my glee today.  Donald Remy, however, sees no reason to panic.

In a statement, NCAA chief legal officer Donald Remy said the association disagrees with the ruling that the NCAA cannot justify restraint due to women’s sports and other men’s sports.

“We have confidence in the legal merits of our case and look forward to presenting it at trial,” Remy said. “In the meantime, we are evaluating our legal options with respect to the decision.”

What he should see is a reason to tell Mark Emmert to settle, but I wouldn’t hold my breath on that.  Trial starts June 9.


Filed under The NCAA

25 responses to “O’Bannon goes to trial.

  1. Scorpio Jones, III

    Chaos indeed. What if, for instance, some players at an unnamed private, Division one school, assigned their rights to a group which would negotiate for the group?

    Correct me if I am wrong, but the way I read the decision would mean that the print media would also be impacted (photos, etc.) since the print media certainly makes money from covering college athletics.

    This shit is real, man.


  2. HVL Dawg

    I hope the trial is televised, then we’ll get to see some amateurs perform.


  3. Ron

    I’m glad this excites you but it’s so tiring. Yes, I’m still reading and have a choice to read something else. But geez, can you go 24 hours without spewing your opinion on amateur vs professional?

    Another UGA blog really needs to rise up right now.


    • So who’s stopping you from starting one?

      In the last week, I’ve put up 56 posts. Surely there’s something in all that of interest to you.

      Like it or not, O’Bannon is likely to turn out to be a very big deal for CFB. It should matter to you if you care about the sport.


    • DawgBiscuit

      Mark Emmert, is that you?


    • “Hey, I don’t come to where you work and knock the broom outta your hands…”


    • 81Dog

      why does that Peyton Manning commercial of him screaming “Cut that meat! Cut that meat!” at a butcher come to mind?

      I’m pretty sure it’s not required that anyone read this stuff. If the topic bores you, I don’t think anyone will judge for skipping over it when it pops up. It’s not like you’re going to be tested on the material later.


  4. Why didn’t the judge just grant a summary judgment? It’s all over but the shouting. Now, college sports fans get to deal with the fallout whatever it may be.


    • Hogbody Spradlin

      I’d be inclined, if I was judging, to think this is something that a jury should decide. A verdict of trial. That’s not the only reason, just one thought.


  5. Hogbody Spradlin

    “We have confidence in the legal merits of our case and look forward to presenting it at trial,” Remy said. “In the meantime, we are evaluating our legal options with respect to the decision.”
    That’s not even good drivel.


    • AusDawg85

      Legal option1: Keep head in sand.
      Legal option 2: Have faith a jury will believe it’s still about the children.
      Legal option 3: Fire Emmert, blame him, promise to do better after an indepth investigation.
      Legal option 4: Play Jack Nicholson scene from “A Few Good Men” to the jury and point-out there has yet to be a Code Red incident.

      Settlement is not an option.


      • Scorpio Jones, III

        “Da trut, you can’t handle da trut.”


      • James

        Or even easier — just take this one out of the GM playbook. The coaches work for the presidents, the presidents are many in number and have no actual individual authority, Mark is just a representative.

        So — don’t take any action despite dire consequences of the status quo, swap figureheads after blame is assigned, maintain all the presidents’ individual deniability, and let the same people already in charge build a new system from scratch.


  6. Cousin Eddie

    Let me see if I understand, the judge told the NCAA all your major points are invalid but I am willing to listen to you babble for weeks before telling you how wrong you are. Meanwhile the NCAA pats itself on the back and try’s to come up with a new defense? Do these guys at the NCAA even hear what everyone else hears? Are they purposely trying to lose so the entire system will have to be burned to the ground and started over the correct way?


  7. Russ

    Unfortunately this is only the first of many trials, and (I fear) Congressional hearings.


  8. americusdawg

    While reading this, one of the first thing that popped into my mind was the movie “The Rainmaker”. I realize it’s a different kinda lawsuit, but damn if the NCAA and its lawyers don’t play a spot-on Leo Drummond and the Great Benefit Insurance Company.