Ed O’Bannon’s class-action antitrust lawsuit against the NCAA is set to go to trial beginning June 9, according to Sports Illustrated.
U.S. District Judge Claudia Wilken made the ruling at an Oakland, Calif., hearing on Thursday.
However, the 4 1/2-year-old case could still be settled.
If there is no settlement and the case goes to court, the plaintiffs will ask a jury to repeal the NCAA’s restrictions that prevent athletes from profiting from their name, likeness and image.
“We’re not asking for any money to be paid,” Michael Hausfeld, the plaintiffs’ attorney, said during Thursday’s summary judgment hearing. “We are asking for the restraint to be removed … and then the market will determine how it plays out.”
Wilken denied requests from both sides for a summary judgment to end the case before going to trial.
“The whole case is not going away on summary judgment,” she said.
However, Wilken could still dismiss some types of evidence or narrow the scope of the case.
The NCAA has argued that First Amendment protections regarding the broadcast of newsworthy events, such as games, exclude schools from having to seek permission from athletes for their appearance in those broadcasts. Wilken asked why the NCAA can then sell exclusive game rights to a network while arguing the events are of public domain.
Wilken was also skeptical about three of the NCAA’s five pro-competitive justifications for why its no-pay rule does not violate antitrust laws. She took issue with the notion that sharing revenue with the athletes negatively impacts competitive balance within college sports.
“Maybe there’s a less restrictive alternative?” she asked. “Maybe you could enforce more competitive balance by having coaches’ salaries addressed.”
One of the NCAA’s other justifications is protecting amateurism, but Wilken dismissed the topic.
“I don’t think amateurism is going to be a useful word here,” she said.
Wilken indicated she may throw out one or more of the NCAA’s justifications from consideration.
“Up to this point you always heard the NCAA argue that these restraints are lawful — purportedly,” Hausfeld said after the hearing. “We’re done with that. There’s no presumptions. This court is saying if we go to trial, you’re going to have to prove that.”
The plaintiffs say athletes should be allowed to license the use of their names, likeness and images by broadcasters, just as professional sports’ player unions do.
The case stems from former UCLA basketball star O’Bannon after he saw his avatar used in an EA Sports video game, but the plaintiffs’ focus has shifted to game broadcasts.
EA and licensing company CLC were dropped as defendants in the case after a $40 million settlement was reached late last year.
The June trial will mark the first time the NCAA’s amateurism standards are the main subject.
“It was very significant,” Hausfeld said. “The NCAA and college sports will never be looked at the same today as it was before this case.”
NCAA chief legal officer Donald Remy did not comment after the hearing but he released a statement.
“We believe strongly in the merits of our case and will continue to defend the interests of the hundreds of thousands of student-athletes not recognized by the plaintiffs,” he said. “For them and for all student-athletes, the current model of college sports provides opportunities for success during college and beyond. We believe the arguments presented show that the plaintiffs’ claims are not supported by the facts or the law.”
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