What Does the O’Bannon Petition Mean for the Future of Amateur Athletics?

O'Bannon PetitionThe O’Bannon Petition & the future of “amateurism”

Ed O’Bannon Jr. and a group of former NCAA athletes have filed a petition to the Supreme Court to not consider the NCAA’s appeal to overturn a decision for intellectual property of athletes’ images and likenesses. This has already been a groundbreaking case for intellectual property rights, but this “O’Bannon petition” has the potential to change not only college sports, but amateur athletics as well.

“This is a groundbreaking case for intellectual property rights.”

The initial case was an antitrust suit over whether athletes should be compensated for their images and likenesses based on First Amendment grounds. In its appeal to the Supreme Court, the NCAA believed the Ninth Circuit decision should have rejected the antitrust suit. Law360 reported that both the former athletes and the NCAA are also seeking a review of the Ninth Circuit’s ruling that athletes are not required to be paid – other than with their college tuitions – but upheld a district court’s decision that NCAA rules against compensation for athletes was anti-competitive.

Background of the appeal to the Ninth Circuit decision

The athletes urged the Supreme Court to review the Ninth Court’s decision that reversed an order to require the NCAA to allow colleges to compensate athletes for use of their names, images and likenesses in deferred licensing payments up to $5,000 annually. Their claim was that the Ninth Circuit’s assertion of amateurism was just another term for compensation restraint for student athletes.

This prompted the NCAA to appeal to the Supreme Court to deny the athletes’ petition. The NCAA then filed a separate petition to protest the fact that it had any antitrust liability with its non-compensation rules for student athletes. Its argument was based on the precedent set in the Supreme Court’s NCAA v. Board of Regents of the University of Oklahoma decision to protect the integrity of amateurism.

The NCAA also asserted that the case was allowed to move forward in lower courts due to the Ninth Circuit’s decision, which in its view misinterpreted First Amendment rights. It argued that the transformative use test could have a potentially adverse impact on intellectual property holders who cannot predict if their work will receive constitutional protection.

The NCAA’s push to appeal the Ninth Circuit decision

The organization petitioned to appeal because it claimed that athletes received no damages for antitrust injuries. As part of the First Amendment, the NCAA argued that athletes would not have been able to make a case for video games using their names, images and likenesses.

The athletes petition not to consider the NCAA’s appeal

Ed O’Bannon and the group of athletes argued that because this is an antitrust case, any First Amendment dispute should be considered in a separate case and has no place in this appeal. The athletes urged the Supreme Court to review the fact that if the videogame companies were involved in the case, the First Amendment would not factor into the decision at all. In fact, because the video game companies were willing to pay for the names, images and likenesses of the athletes, there should be a willingness to compensate them as well.

For more articles dealing with O’Bannon, check out:

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Anthony R. Caruso is a business transactional attorney in New York and New Jersey with experience in structuring, negotiation and completion of legal deals involving business, entrepreneurs, athletes and performers.

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