Last summer, NCCAA amateurism rules took a significant hit when a California trial court rendered its decision in O’Bannon v NCAA. For those unfamiliar with the case, O’Bannon v NCAA was a class action lawsuit which alleged that the NCAA and its licensing company violated antitrust law and deprived players of their right of publicity (in Canada, right of personality is referred to as personality rights, which are protected by the common law tort of misappropriation of personality) by using NCAA student-athletes’ names, images and likeness for their own commercial purposes.
The landmark trial decision ruled in favour of O’Bannon, determining that the NCAA cannot prevent athletes from selling the rights to their names, images and likenesses, but that the NCAA could cap payments to players for use of such rights at $5,000 per player for each year of competition. The money was to be held in trust for the athlete until their graduation or when they exhaust their playing eligibility.
The NCAA promptly appealed and this week, a decision was rendered. In it, the US Court of Appeal affirmed that certain NCAA amateurism rules violate antitrust law, however, the scope of the players’ victory was limited by the holding that schools only need to provide up to the cost of attendance — consequently dismissing the required compensation for name, image and likeness rights.
What does this mean for the athletes’ rights movement in American collegiate sports? University of New Hampshire law professor Michael McCann explains here that it is not all bad news. The US Court of Appeal agreed that NCAA amateur rules unlawfully prevent schools from compensating Division I revenue-generating sports (men’s basketball and football), and identified various ways in which these rules have injured athletes. Given the novelty of the issue and the fact that both sides have reason to appeal, McCann suggests that there is a real possibility O’Bannon v NCAA will be reviewed by the US Supreme Court.
Andrew is a 3L student at Osgoode Hall, and is currently serving as Co-President of ESLA.