Is O’Bannon finished?

The word came yesterday that the Ninth Circuit would not revisit the three-judge panel’s ruling from a few months ago that undid Judge Wilken’s monetary remedy.  (Not surprising, in that it’s unusual for motions for en banc rehearings to be granted.)

That sets up an interesting scenario, namely, does either side appeal the Ninth Circuit’s ruling to the Supreme Court?  Knocking out the financial remedy was a win for the NCAA, but as plaintiff’s counsel notes, the appellate decision left one big thing in place.

O’Bannon attorney Michael Hausfeld said his legal team is evaluating its next options and suggested that could mean new lawsuits that attack other NCAA rules instead of petitioning the Supreme Court.

“We now have an unequivocal determination that the NCAA is a cartel and that as a cartel its conduct violates the antitrust laws with regard to college athletes,” Hausfeld said. “So the next step is what further proceedings could possibly be undertaken with regard to other restraints imposed by the association and the conferences.”

Hausfeld declined to say what NCAA rules he is considering challenging. The Ninth Circuit’s decision not to have a rehearing “focused on a remedy as opposed to the violation,” Hausfeld said. “That doesn’t in any way undercut the fact there is an unimpeachable finding that they violated the antitrust law.”

If it sounds like Hausfeld’s strategy is to sit back and leave the Ninth Circuit precedent out there as a boost to other litigation such as Jeffrey Kessler’s, does the NCAA pocket its winnings and sit back, too?  Or does it take the risk of appealing to the Supreme Court in the hope that it can get the entire matter overturned?