O'Bannon trial is scheduled to begin in June, but NCAA tries to get another delay

Can the NCAA use the image or name of a current or former student-athlete and not pay him or her?

Courtrooms rather than basketball courts will once again be used to settle disputes involving the NCAA.

An antitrust trial that positions Ed O'Bannon, a former basketball player at UCLA, and other plaintiffs, against the NCAA was scheduled to begin on June 9.

But on May 30, the NCAA tried to once again delay the start of the trial and filed an emergency petition with the Ninth Circuit Court of Appeals.

"The petition filed today with the Court of Appeals makes clear the NCAA's serious concerns about potential violations of the Constitution resulting from the plaintiffs' last-minute maneuvering to obtain a bench trial,” NCAA chief legal officer Donald Remy said in a statement sent to InsideCounsel about the plaintiffs wanting the judge rather than a jury to hear the case. “While the NCAA does not take this step lightly, it could not abandon its right to a jury trial without seeking further review.”

When the trial finally commences in the Oakland, Calif., courtroom, O'Bannon’s side will try to stop the NCAA's current ban on paying student-athletes for using their names and images on photos, video games or DVDs.

The plaintiffs are addressing the NCAA making money and not sharing it with the athletes when the images of college athletes are used in media and marketing materials.

One professor who follows the business of college sports predicts the NCAA has a challenge on its hands, with the case.

"I think it's likely the players will win this suit," said Pat Rische, a professor of economics at Webster University, was quoted by CNBC.

"The NCAA must feel that the outcome of this case could so fundamentally change the economics of college athletics that they need to put up a fight," Rische added in the statement to CNBC.

There is a lot of money at stake given the amount sports networks will pay to carry college games, and related sports-themed merchandise.

"The outcry from student athletes has become louder as the money has poured in," Rische commented.

The lawsuit was initially filed in 2009. But there have been many delays since then, and U.S. District Judge Claudia Wilken earlier in May rejected a NCAA attempt to delay the case from going to trial.

Now, with the latest request for delay, the NCAA wants the appeals court to vacate Wilken's decision for the trial to start on June 9. The NCAA also wants the appeals court to delay the O'Bannon trial until the case involving Sam Keller is heard. Keller played for Arizona State and Nebraska. That lawsuit relates to video games, and is expected to go to trial in March 2015.

Last year, a settlement was made between plaintiffs in O'Bannon lawsuit and Electronic Arts and the Collegiate Licensing Co., both of whom were defendants. The settlement totaled $40 million, according to InsideCounsel, and representatives of the two firms could testify in the O'Bannon trial.

Remy said in a statement sent to InsideCounsel about the O'Bannon case, “We are prepared for trial and look forward to presenting our case to the Judge. At the same time, we will continue to prepare for a jury trial in the Keller case that is scheduled for March."

Meanwhile, Hausfeld LLP, which is representing O'Bannon, issued a statement in December that said in part, "The NCAA's rules that prohibit payment to student-athletes for the use of their names, images, and likenesses may have served a purpose in another era.”

“But in this era of the commercialization of college sports and multi-million dollar broadcast contracts, these rules only serve to exploit the very student-athletes that generate the millions of dollars that pad the pockets of the NCAA,” the statement added. "There is a growing public recognition that the NCAA's business practices are unfair and we look forward to proving in a court of law that they must be changed."

Michael Hausfeld, who is representing the plaintiffs, also told USA Today, “Hopefully we can change the enterprise to a free market where athletes have a balanced voice and a fair relationship."

Under a recent NLRB ruling, college football players at Northwestern University were allowed to form a union – a decision that has led to an outcry from many colleges and universities.

 

Further reading:

Key rulings coming in key college athlete payment case

Congress hears concerns about student- athletes’ move to unionization

Northwestern football players win right to form first college sports player’s union

 

 

 

 

Contributing Author

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Ed Silverstein

Ed Silverstein is a veteran writer and editor for magazines, websites and newspapers. A graduate of Harvard's Kennedy School of Government, he has won several...

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