The O’Bannon Case

Judge Claudia Wilken Oakland

Judge Claudia Wilken

It’s official: barring a settlement, Ed O’Bannon vs. NCAA is headed for trial in June. Both sides had asked Federal Judge Claudia Wilken to issue a summary judge in their favor. During a hearing yesterday, Judge Wilken refused, saying that some aspects of this case must be adjudicated before a jury.

In the course of the proceedings, Judge Wilken appeared skeptical of some of the NCAA’s key claims.

Two are of note:

1) From SI’s Stewart Mandel:

“For instance, the NCAA has argued in filings that First Amendment protections regarding the broadcast of newsworthy events — i.e. a college football game — preclude schools from having to seek permission from athletes for their appearance in game broadcasts. Wilken questioned why the NCAA can then sell exclusive game rights to a network like CBS while at the same time arguing the events are of public domain”

2) Concerning the NCAA’s insistence that its rules “protect” the amateur status of college athletes, Judge Wilken said: “I don’t think amateurism is going to be a useful word here.”

Here, in part, is how the NCAA articulates the principle of amateurism:

“Student-athletes shall be amateurs in an intercollegiate sport, and their participation should be motivated primarily by education and by the physical, mental and social benefits to be derived. Student participation in intercollegiate athletics is an avocation, and student-athletes should be protected from exploitation by professional and commercial enterprises.”

In other words, the players are potential victims of exploitation only when they are in a position actually to receive payment (beyond that approved by the NCAA in the form of a scholarship) for playing their sports. This is a pretty audacious use of language. But it’s long been necessary in order for the NCAA to rationalize operating an enterprise that makes billions of dollars while denying remuneration to its participants. In 2006, then NCAA President Myles Brand, a former philosophy professor, told the assembled delegates at the association’s 100th anniversary meeting that collegiate sports had, of course, become a commercial endeavor, and that “‘amateur’ defines the participants, not the enterprise.”

This has been an awfully tight rope for the NCAA walk, and Judge Wilken appears to be suggesting that the long-standing feat of acrobatics that is the NCAA’s novel understanding of the concept of amateurism is nearing the end of its run.

That doesn’t tell us how a jury might rule on the issues at trial. But the parameters within which the trial will unfold may be particularly unfavorable to the NCAA.

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