I’m coming back to this topic for the third time. See here and here for previous installments. Although the relevance to running is relatively indirect (due to the effects these cases could have on college runners), it’s an issue I think is worth some attention.
The last we heard from the O’Bannon case, the NCAA had partially lost (and the plaintiffs had partially won) a motion for summary judgment. The Court dismissed the NCAA’s argument that the “broader social purpose” of supporting women’s and non-revenue sports could not be a legal justification for what otherwise would be a violation of antitrust laws. Not willing to give up the pre-trial fight, Courthouse News reports that the NCAA has filed a motion to obtain interlocutory review of Judge Wilkens’ partial summary judgment order.
Among the arguments that Judge Wilkens rejected back in April was the argument that broadcasts of full games are commercial speech (an argument made by the athletes). The Judge did not decide whether clips or video highlights are protected by the First Amendment. Now, the First Amendment Coalition and a group of broadcast companies (including CBS, Fox, and ABC) have filed amicus briefs in support of the NCAA’s request for interlocutory review. The plaintiffs’ lawyers predictably (although perhaps not unjustifiably) blast the move by the NCAA as a tactic intended only to delay the early June trial.
According to the First Amendment Center “The uncertainty created by such a scenario – do broadcasters have the right to televise a particular game, or do they not? – will cause the NCAA, networks, and associated businesses to censor their protected speech.” That seems to me to be a logical prediction given the difficulty that would ensue from potentially having to license publicity rights from each individual athlete who might appear on a broadcast, but the plaintiffs counter that it is more or less beside the point. Aside from the likelihood of having group rights licenses that will be simpler to negotiate, the plaintiffs stress that “if the NCAA and its members are going to arrange for such exclusive deals, they should compensate players for use of their names, images and likenesses through some contractual group license in advance of dealing with the broadcasters.” There was an interesting response to that response in claiming that in order to set up the sort of group licensing system the plaintiffs contemplate, the NCAA and members schools would, by setting up such a system, be engaging in yet more anticompetitive behavior.
The NCAA and the amici seem to have come up with some new arguments, but given the way this case has been going so far, I tend to doubt the judge will find them compelling. In addition, the standard for interlocutory appeals is a rather stringent one. It’s not enough that the NCAA disagrees with some aspect of the ruling; they must have a truly compelling reason that those issues must be resolved now rather than later.
On a related note, I stumbled across this post on a site that focuses on economic issues in sports. It’s a list of what various economists have said about whether they think the NCAA operates as a cartel. Without spoiling it (as if I could), it suffices to say that if this list is representative of the thinking on this issue among economists, the question of the cartelization of the NCAA is not a close one.