Antitrust Law Daily Wrap Up, ANTITRUST NEWS: NCAA seeks clarification of O’Bannon injunction, (Aug 12, 2014)

By Greg Hammond, J.D.

The National Collegiate Athletic Association is seeking an urgent clarification of an August 8 opinion, allowing student athletes to collect compensation for the use of their names, images, and likenesses in television broadcasts and video games. According to a motion for clarification filed in the federal district court in Oakland, there is uncertainty among college administrators across the country about whether the injunction is effective now or whether it is effective for student-athletes enrolling after July 1, 2016 (O’Bannon v. National Collegiate Athletic Association, August 11, 2014).

In the motion, the NCAA questions two sentences: (1) that the injunction “will not take effect until the start of next FBS football and Division I basketball recruiting cycle”; and (2) that the injunction “shall not affect any prospective student-athlete who will enroll in college before July 1, 2016.”

The Association first noted that the term “recruiting cycle” is potentially ambiguous, as student-athletes in the next recruiting cycle could receive offer letters beginning August 1, 2015. Consequently, the NCAA requests confirmation that its rules can remain effective until August 1, 2015, acknowledging that it would be prohibited from adopting or enforcing rules inconsistent with the injunction on or after that date.

In addition, the NCAA noted that various colleges and universities are concerned that the injunction could apply to current student-athletes. The association, on the other hand, believes that the injunction applies to student-athletes first enrolling after July 1, 2016. If the injunction applied to current students, the NCAA explained, member colleges would not have an opportunity to consider new rules consistent with the injunction. Further, the NCAA expressed that colleges need time to address a number of issues, such as “equal distribution of licensing revenues, caps on payments relating to licensing revenues, the implementation of a trust fund, etc.”

“Using the August 1, 2015, offer date for student-athletes enrolling in 2016 provides clarity for the coming academic year, an unambiguous deadline for the implementation of the injunction, and time for the NCAA member colleges and conferences to establish any new rules appropriate in light of the injunction,” according to the NCAA.

Attorneys: Glenn D. Pomerantz (Munger, Tolles & Olson LLP) and Gregory L. Curtner (Schiff Hardin LLP) for the National Collegiate Athletic Association

Companies: National Collegiate Athletic Association

News: Antitrust