The NCAA may not be sure about appealing the Ninth Circuit’s decision in the O’Bannon case, but the plaintiffs are.
Lawyers for the Ed O’Bannon plaintiffs on Tuesday asked the Supreme Court to hear their antitrust case against the NCAA, a request that carries risks and rewards but no guarantee of even being heard.
Last fall, the Ninth Circuit Court of Appeals threw out U.S. District Judge Claudia Wilken’s decision allowing college football and men’s basketball players to be paid up to $5,000 per year in deferred money. But the Ninth Circuit upheld that the NCAA’s rules restricting payments to players violate antitrust laws. As it stands now, cost of attendance stipends — since they are tied to education — are the highest form of payment the NCAA must legally allow schools to offer players.
There are layers upon layers here, as Solomon notes – the attorney’s fee award, the decision that compensation should be limited to COA stipends are two things at stake – but it seems to me that the NCAA should be truly worried about one thing above all.
For the NCAA, a Supreme Court case carries a tremendous risk of having the higher court agree with Wilken that athletes should be allowed to get paid beyond cost of attendance. The NCAA has spent considerable time in recent years lobbying Congress, potentially for some sort of antitrust exemption if that day is ever needed. Congress isn’t exactly passing legislation at breathtaking speed, though, and there’s no certainty the NCAA could get freedom from these types of antitrust lawsuits in the future.
A win at the Supreme Court could strengthen or clarify how antitrust laws impact the NCAA. Because of the O’Bannon decision as it stands now, the NCAA can no linger cling to a 1984 Supreme Court ruling in Board of Regents vs. Oklahoma that the association used to defend amateurism for decades.
If the Supremes take the case and uphold the Ninth Circuit, the NCAA will have won the battle and lost the antitrust war. And, yes, if that happens, you’ll see panicked lobbying of Congress like you’ve never seen before. The NCAA’s problem is, if they don’t take it, the Ninth Circuit’s decision still stands as the highest law in the land on the subject. Jeffrey Kessler can live with that.