NCAA makes new bids to redefine or delay O'Bannon trial

Lawyers for the NCAA on Monday night made two more filings designed to redefine and/or delay the prospective trial in a lawsuit relating to the use of college athletes' names and likenesses, as well as the association's limits on what major-college football and men's basketball players can receive for playing sports.

The NCAA seeks to ask U.S. District Judge Claudia Wilken to reconsider part of her ruling April 11 on the sides' respective requests for summary judgment – or, rulings in their favor without trial.

The association also is requesting that Wilken allow it to ask the 9th U.S. Circuit Appeals to review another aspect of her summary judgment decision. Because Wilken did not issue a ruling that ended the case, the ruling cannot be appealed without her permission.

Monday night's moves mean the NCAA now has four pending motions that could alter the complexion or timing of the case brought on behalf of a group of former college athletes headed by UCLA basketball player Ed O'Bannon. At present, a trial is scheduled to begin June 9 in Wilken's court in Oakland.

This past Friday, though, the NCAA filed two other motions in the case. It made an appeal with the 9th Circuit that seeks to dismantle the case's status as a class action. It also asked Wilken to either separate claims relating to video games from the rest of the case or delay the trial until a proposed settlement of those claims is finalized or the Supreme Court decides whether to take up and resolve issues related to video games that presumably were going to be rendered moot by the settlement.

In addition to the prospect of Wilken delaying the case, if the 9th Circuit allows the NCAA to pursue either of its potential appeals, there is little chance that the trial will open as scheduled.

"If you were at the point (the NCAA is) in this kind of case, it's automatic" that these types of motions get filed, said Steve Williams, an attorney who handles anti-trust and complex civil litigation for the Bay Area-based firm Cotchett, Pitre and McCarthy and has appeared before Wilken but is not involved in this case. "You do anything you can to slow it down."

With regard to Monday night's filing that asks for Wilken permission to approach the 9th Circuit, Williams said, "The NCAA is saying to the judge, 'With all respect, reasonable minds can differ, reasonable judges can differ. Shouldn't we let the appeals court take a look at it?"."

However, Williams said he believes Wilken "will not be inclined to grant" the NCAA the permission it needs and that "the odds of (the 9th Circuit allowing the NCAA to bring forward its appeals at this point) are very slim as well."

Wilken has determined that the plaintiffs can seek, on a class basis, an injunction that would prohibit the NCAA from limiting Bowl Subdivision football players and Division I men's basketball players to scholarships under which they basically can receive only tuition, mandatory fees, room, board and books. An injunction could allow football and men's basketball players to be compensated for the use of their names, images and likenesses in ways such as merchandising and live television broadcasts.

In Monday's filing, the NCAA reiterated its position that athletes cannot claim a right to market the use of their names, images and likenesses in live TV broadcasts because some state laws expressly say that athletes have no such rights and because the First Amendment bars such claims, since major-college football and men's basketball games are matters of great public interest and not commercial speech.

In her summary judgment ruling, Wilken, citing her interpretation of two previous cases, wrote that the First Amendment "does not guarantee media organizations an unlimited right to broadcast entire college football and basketball games."

She added that question of whether college athletes "hold any ownership rights in their athletic performances does not depend on the scope of broadcasters' First Amendment rights but, rather, on whether the student-athletes themselves validly transferred their rights of publicity to another party. Because the current 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."

Under federal court rules, this type of decision normally cannot be appealed because it is not bringing a case to an end. But a district judge can give permission for such an effort if the judge decides the issue involves a legal question for "which there is a substantial ground for difference of opinion and … an immediate appeal … may materially advance" the case's resolution.

The NCAA argued Monday that is precisely the case here "because (Wilken's ruling on this question) determines whether the bulk of plaintiffs' claims are viable at all" and because Wilken's ruling on the First Amendment issue "is unprecedented, and it departs from decades of First Amendment jurisprudence."

Even if Wilken gives the NCAA permission for the appeal, the 9th Circuit will not be required to take up the matter.

As for the issue that the NCAA would like Wilken to reconsider, it involves one of the justifications the NCAA has offered for its limits on what athletes can receive for playing sports. In this instance, the NCAA can have such limits unless the limits' harm to football and men's basketball players who might otherwise enjoy greater benefits from schools' competition for them is found to outweigh the positive effect that the limits have on college sports.

The NCAA had offered five justifications for its compensation limits, but in her summary judgment ruling, Wilken wrote that the NCAA cannot say during the trial that the limits enable schools to provide increased financial support for women's sports and less prominent men's sports. She said the NCAA cannot limit competition in the markets for football and men's basketball players in order to promote competition the markets for women's sports of less prominent men's sports.

She also said "the NCAA could mandate that Division I schools and conferences redirect a greater portion of the … revenue generated by football and basketball to these other sports" and the NCAA "has not explained why it could not adopt more stringent revenue-sharing rules" regarding money generated by the Division I men's basketball tournament.

In seeking Wilken's reconsideration of this, the NCAA argues that Wilken "wrong under controlling law" to hold the NCAA responsible for showing that alternatives exist; that obligation, it argues, was the plaintiffs' -- and they didn't meet it. The NCAA also argues that the markets for football and men's basketball players cannot be considered as distinct from the markets for women's sports and other men's sports because federal laws requiring gender equity in college athletics programs bar schools from viewing football and men's basketball "as categorically distinct from other intercollegiate athletic opportunities."

The NCAA's chief legal officer, Donald Remy, said in a statement Monday night: "This issue is critical to fostering equity and opportunity in college sports. We support all student-athletes, regardless of whether their sport brings in revenue, and we believe that the current model provides opportunities for many young women and men to access higher education and earn a college degree."