Two Calls Go Against The NCAA In Student-Athletes’ Name and Likeness Litigation

By David Scupp

The NCAA was on the losing end of two orders entered this week in the In re NCAA Student Athlete Name & Likeness Licensing Litigation.

The U.S. District Court for the Northern District of California denied the NCAA’s motion for leave to file a motion for partial reconsideration of the court’s order denying the NCAA’s motion for summary judgment on antitrust claims of current and former student-athletes who were denied compensation for the commercial use of their name, image, and likeness. The NCAA had argued that the court should reconsider its finding that providing financial support to women’s sports and less prominent men’s sports is not a legitimate procompetitive justification for the NCAA’s challenged restrictions on student-athlete pay.

In its summary judgment decision, the court held that the market for women’s sports and less prominent men’s sports is separate from the market for Division I men’s football and basketball, and found that it would be “improper to validate a practice that is decidedly in restraint of trade simply because the practice produces some unrelated benefits to competition in another market.” The court also found that this procompetitive justification failed because the record contained undisputed evidence that the NCAA could support women’s sports and less prominent men’s sports through less restrictive means.

The NCAA sought reconsideration of this ruling on two bases. First, the NCAA argued that the court erred in treating Division I men’s football and basketball recruits as the only consumers in the college education market. The court rejected this argument, noting that the plaintiffs’ evidence and arguments make clear that they are challenging the NCAA’s restrictions on student-athlete pay because of the specific impact those restrictions have on the college education market for Division I football and basketball recruits.

Second, the NCAA argued that plaintiffs had failed to show that procompetitive effects of the challenged restraints could be accomplished by less restrictive means. The court rejected this argument as well, noting that the NCAA could provide financial support to women’s sports and less prominent men’s sports by redistributing the revenue generated by football and men’s basketball.

On the same day that the district court denied the NCAA’s motion for reconsideration, the U.S. Court of Appeals for the Ninth Circuit denied the NCAA’s urgent petition to appeal the district court’s class certification ruling from last November. The Ninth Circuit denied the NCAA’s request without comment.

Trial in the case is set to begin on June 9, 2014.

– Edited by Gary J. Malone