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National College Football Writer

NCAA offers hints of its O'Bannon appeal strategy

The NCAA suggested its main arguments to appeal the Ed O'Bannon ruling allowing college athletes to be paid will focus on amateurism and First Amendment rights on live broadcasts.

In a filing Thursday night with the U.S. Circuit Court of Appeals, the NCAA's lawyers responded to a mandatory mediation questionnaire that asks to briefly describe the issues on appeal. The NCAA wrote, “The issues on appeal include but are not limited to whether amateurism is presumptively procompetitive for an amateur sports league and whether plaintiffs' claims based on a property right in the use of their (names, images and likenesses) in live broadcasts of sporting events are foreclosed by the First Amendment.” USA Today Sports first reported the filing.

U.S. District Judge Claudia Wilken ruled Aug. 8 that the NCAA's restrictions on what Football Bowl Subdivision players and Division I men's basketball players can receive “unreasonably restrain trade” and violates antitrust law. Wilken's injunction will allow football and men's basketball players to receive scholarships covering their full cost of attendance and deferred payments for the schools' use of their names, images and likenesses (NILs).

For decades, the NCAA's legal defense to avoid paying players has relied upon a landmark 1984 Supreme Court ruling that stripped the NCAA of TV rights and allowed conferences to sell their games. The NCAA has clung to a line from that decision: “In order to preserve the character and quality of the (NCAA's) 'product,' athletes must not be paid, must be required to attend class, and the like.”

In her October 2013 summary judgment ruling, Wilken wrote the Supreme Court opinion “does not stand for the sweeping proposition that student-athletes must be barred, both during their college years and forever thereafter, from receiving any monetary compensation for the commercial use of their names, images and likenesses.” In her August judgment after a three-week trial, Wilken noted that the O'Bannon plaintiffs provided enough evidence to show the college sports industry has changed “substantially” in 30 years.

Wilken also wrote that the Supreme Court opinion stating “athletes must not be paid” differed from the NCAA's own lawyers in the case. The NCAA's lawyers in 1984 said during an oral argument “that the NCAA was not relying on amateurism as a procompetitive justification and ‘might be able to get more viewers and so on if it had semi-professional clubs rather than amateur clubs,'” Wilken wrote. In addition, Wilken wrote that the NCAA has inconsistently applied its amateurism rules throughout the association's history and to this day.

Wilken's injunction allows the NCAA to create a cap on the deferred licensing money as long as the cap is not less than $5,000 per year. It's what's called a less-restrictive alternative to the antitrust violation found.

By appealing based on amateurism, the NCAA could find relief or perhaps an even more damaging ruling. Conceivably, the appeals court could determine that amateurism is so illegitimate that it's unreasonable for there to be any cap. That's the argument attorney Jeffrey Kessler makes in his class-action lawsuit against the NCAA and the five major conferences.

Another issue the NCAA suggested it will appeal in O'Bannon relates to the First Amendment and live TV broadcasts -- an area that generates billions of dollars for schools. The O'Bannon plaintiffs have sought to share that licensing revenue.

Earlier in the O'Bannon case, the NCAA claimed that the First Amendment and various state laws prevent college athletes from asserting any rights of publicity during game broadcasts. Wilken rejected that argument in April, writing that the First Amendment “does not guarantee media organizations an unlimited right to broadcast entire college football games” and questioned whether college athletes validly transfer their rights of publicity to another party.

Wilken added in her August judgment that a group market exists in live TV broadcasts for college athletes' NILs. But she determined that although some actions may be unlawful related to live TV broadcasts, there is no evidence they violate antitrust law.

The NCAA's hints this week of their appeal arguments aren't necessarily the only issues they will challenge. The NCAA left the door open for other issues in its language in the questionnaire. The appeal process could last more than a year.

O'Bannon lead attorney Michael Hausfeld said Friday the plaintiffs will decide within the next week or two whether to appeal Wilken's ruling. Hausfeld said he expects a “full-blown assault” by the NCAA from its amateurism defense.

“It's what they've contended from the very beginning of the suit is the essence of their defense,” he said. “It was thoroughly rejected by the District Court, and in some respect the Court of Appeals in refusing to grant them extraordinary relief of appeal before the judgment.”

Also this week, Washington D.C.-based attorneys Seth Waxman and Daniel Volchok formally filed with the federal appeals court their notices of appearance as NCAA lawyers. Waxman, a former U.S. solicitor general, has argued more than 65 times before the Supreme Court and was hired by the NCAA in 2013.

Many observers of the O'Bannon case believe the NCAA has been eyeing the Supreme Court as a remedy for a while. It's no given the Supreme Court would hear the case.


Jon Solomon is a national college football reporter with CBSSports.com. Solomon joined CBS in 2014 after covering college football at The Birmingham News/AL.com for eight years. He previously was a Clemson beat writer for The (Columbia, S.C.) State and The Anderson (S.C.) Independent-Mail.
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