NCAA petitions Supreme Court in Keller case
by Steve Berkowitz, USA TODAY Sports
The NCAA on Friday night filed documents asking the U.S. Supreme Court to review a federal appeals court ruling in a lawsuit against video game maker Electronic Arts concerning the use of college athletes’ names and likenesses.
EA alone had asked the Supreme Court to review the case, but it was one of several covered under a proposed settlement that would resolve claims against EA and the nation’s leading collegiate trademark licensing and marketing firm, Collegiate Licensing Co.
However, the NCAA was not part of that settlement. It has interest in the case because it was involved at the district court level and – equally as important — it raises issues that it views as critical to its position the anti-trust suit it is facing from former and current college athletes including former UCLA basketball player Ed O’Bannon.
On Friday, U.S. District Judge Claudia Wilken denied a motion from the NCAA to have the O’Bannon suit dismissed.
And the 24-page opinion she wrote in support of her ruling carried some potentially troubling signs for the NCAA. She indicated that the case should not be bound by a 1984 Supreme Court ruling that the NCAA has relied upon to preserve its amateurism system. In addition, she let stand the plaintiffs’ contention that NCAA rules forbidding schools from offering money to recruits for their labor or for the commercial use of their names and likenesses restrains competition for the athletes and results in lower compensation for the athletes than would otherwise exist in a more competitive market.
“These allegations are sufficient to state a Sherman (Antitrust) Act claim,” she wrote.
Sports law icon and antitrust expert Gary Roberts — former dean of the Indiana University law school in Indianapolis – told USA TODAY Sports on Friday that part of Wilken’s opinion is “something that I think will undoubtedly give the NCAA some serious concern.”
“If the judge considers the market in which Alabama and LSU and Ohio State compete for the top athletic talent … to be a relevant labor market for anti-trust purposes,” Roberts said, “that fundamentally undercuts the very foundation upon which the NCAA rests” at least … [For more on NCAA petitions Supreme Court in Sam Keller case, click here.]