NCAA Petitions Supreme Court to Protect Uses of Athletes’ Names & Likenesses
By Jennifer E. RothmanMay 24, 2016
Last week, the NCAA filed a petition for certiorari with the Supreme Court in O'Bannon v. NCAA. The bulk of the petition seeks to overrule the Ninth Circuit's decision that the NCAA rules requiring amateurism violate the Sherman Act and antitrust law. Part of the petition also challenges the Ninth Circuit's "flawed intepretation of the First Amendment" in Keller v. Electronic Arts.
In Keller, the Ninth Circuit rejected a First Amendment defense to the alleged use of athletes' likenesses in videogames. The NCAA now challenges Keller because it claims that the uses of the players' names and likenesses are protected free speech. Accordingly, the NCAA contends there was nothing of value for which the athletes should have been compensated. The NCAA therefore argues that the players lack standing to sue under the Sherman Act.
I have written elsewhere about the many problems with the First Amendment analysis in Keller and the related case Davis v. Electronic Arts, that involved similar issues with professional football players. As in Davis, I will be filing an amicus in support of review of the First Amendment issues here. Given the continued absence of a ninth justice and the complexity of the issues here, I am not convinced that the Supreme Court will grant review in the case. Nevertheless, there is no doubt that the ongoing conflict between the right of publicity and the First Amendment needs some guidance from the Supreme Court. In contrast to Davis, this case does not have the procedural baggage of the anti-SLAPP motion so may be a more attractive vehicle for reviewing the First Amendment issue. Nevertheless, the antitrust issues in the case and the looming question of college athletics and amateurism rules may overshadow engagement with the First Amendment and the right of publicity.
The student-athletes filed a petition in March seeking review of the proposed remedy for the antitrust violation. The plaintiffs are challenging the limit of $5,000 per year in deferred compensation as being an insufficient remedy for the NCAA's actions.