By David Scupp, of Constantine Cannon
The antitrust battle between the NCAA and its former players over the use of their names and likenesses might finally be coming to a head.
Last Friday, Judge Claudia Wilken of the U.S. District Court for the Northern District of California ordered the NCAA to engage in settlement talks in the class action case of In Re NCAA Student-Athlete Name and Likeness Licensing Litigation, with the class representatives, who claim that the NCAA and its member schools illegally conspired to prevent players from earning compensation from the licensing of their name and likeness rights.
This order comes on the heels of a summary judgment hearing on February 20, 2014, when Judge Wilken stated in no uncertain terms that “[t]he whole case is not going away on summary judgment.” That means that, barring successful settlement negotiations, the case is very likely to go to trial. A trial date has been set for June 9, 2014, in Oakland, and is slated to last 19 days.
For its part, the NCAA has indicated that it is not interested in entering into any settlement that would do away with its amateurism rules that strictly limit the compensation available to collegiate athletes. The NCAA’s chief legal officer Donald Remy stated on Friday that the NCAA “will of course participate in the court-ordered mediation, however, we will continue to protect the core principles of the collegiate model.” This statement echoes the NCAA’s comments following the summary judgment hearing that the NCAA “will continue to defend the interests of the hundreds of thousands of student-athletes not recognized by the plaintiffs” — i.e., male and female athletes in sports other than football and men’s basketball — and that “the current model of college sports provides opportunities for success during college and beyond.”
Judge Wilken, however, might not be convinced. At the summary judgment hearing, she expressed doubts about three of the NCAA’s pro-competitive justifications for its amateurism rules: that amateurism rules (1) reinforce the on-field competitive balance among schools; (2) cultivate the integration between academics and athletics; and (3) provide financial support for sports other than football and men’s basketball.
These comments could motivate the class representatives to demand a settlement that eliminates, or at least heavily modifies, the NCAA’s amateurism rules. It is unclear whether the NCAA’s hard-line is merely posturing before the court of public opinion. If so, settlement discussions might be productive and the NCAA might be willing to cut a deal. But, given the billions of dollars riding on the maintenance of the NCAA’s “amateurism” model, the NCAA may very well be inclined to take the fight to trial.
Scupp is an associate in Constantine Cannon’s New York Office. This post appeared in the firm’s blog — Antitrust Today.
