Lawyers for the NCAA filed two more motions Monday in the Ed O'Bannon lawsuit that could delay or redefine the trial involving college athletes' names, images and likenesses.
The NCAA has asked U.S. District Judge Claudia Wilken to allow it to ask the 9th U.S. Circuit Appeals to review the First Amendment portion of her April summary judgment ruling. The NCAA wants Wilken to certify her ruling for appeal because it involves a "controlling question of law" with a "substantial difference of opinion" about whether publicity rights exists for athletes in live television broadcasts. The NCAA contends they do not.
Also, the NCAA asked Wilken to reconsider her summary judgment ruling that the NCAA cannot use women's sports and less-prominent men's sports to defend its rules that prevent football and men's basketball players from being paid.
The latest filings come after the NCAA last Friday asked the courts to dismantle or delay the case's status as a class action. The mounting requests could delay the trial, which is scheduled to begin June 9.
The NCAA wants to appeal Wilken's class certification of the live broadcast claims. It also seeks to separate claims related to video games until a proposed settlement with Electronic Arts and Collegiate Licensing Company is finalized or the Supreme Court takes on the case.
Now the NCAA is taking exception to two key opinions Wilken made in her April 11 order that were victories for the plaintiffs. Wilken ruled that the First Amendment does not guarantee media organizations unlimited rights to broadcast entire college football and basketball games. That's a defense used by the NCAA.
Wilken wrote that the question of whether athletes hold any ownership rights in their athletic performances depends on whether the athletes validly transferred their rights of publicity to another party, such as a school, conference or broadcaster.
"Because the record does not demonstrate that all Division I student-athletes validly transferred all of these rights, the First Amendment does not preclude student-athletes from asserting rights of publicity in live broadcasts or re-broadcasts of entire games," Wilken wrote. "Accordingly, the First Amendment does not preclude the existence of a market for group licenses to use student-athletes' names, images and likenesses in those broadcasts."
The NCAA contends that Wilken and the plaintiffs have not identified one state that clearly recognizes publicity claims for players in sporting events. If Wilken's ruling is upheld, the decision could "fundamentally alter the nature of amateur athletics" and raises First Amendment issues of "enormous consequence," the NCAA wrote.
The NCAA claims Wilken's First Amendment ruling is unprecedented. No court has held that individual players in a team sport have rights to use of their name, image or likeness during games, or that non-commercial speech can be limited without a recognized state law, the NCAA says.
Wilken's ruling suggests that every football and men's basketball player who appeared in a broadcast could single-handedly block the broadcast of the game without granting use of his name, image and likeness, the NCAA claims. In fact, Wilken denied that was the intent of her opinion in her order. But the NCAA wrote that "an athlete claiming the right to block would not find it difficult to challenge that denial."
In another ruling last month, Wilken threw out one of the NCAA's five procompetitive justifications for restricting compensation — the argument that not paying players enables increased support for women's sports and lower-profile men's sports. Wilken determined those are different educational markets than football and basketball and questioned why the NCAA could not adopt revenue-sharing rules in which a larger portion of football and basketball licensing revenue goes to other sports.
“The Court erroneously placed the burden on the NCAA, and then relied on a hypothetical less restrictive alternative for which (the plaintiffs) had not even argued, much less supported with any evidence in the summary judgment record,” the NCAA wrote Monday.
The NCAA argues that the question of how colleges could support many sports while paying football and men's basketball players should have been reserved for the jury. The NCAA also claims the markets for football and men's basketball players are not different than other sports because Title IX prevents schools from viewing the major-revenue sports “as categorically distinct from other intercollegiate athletic opportunities.”
The O'Bannon plaintiffs are seeking an injunction that would end the NCAA's restrictions preventing Football Bowl Subdivision football players and Division I men's basketball players from being compensated from licensing revenue.