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.

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