Supreme Court’s O’Bannon ruling another step toward changing how college athletes are compensated, UB sports law expert says

BUFFALO, N.Y. – This week’s U.S. Supreme Court decision not to hear appeals in the O’Bannon v. NCAA case concerning the treatment of college athletes is another sign the NCAA must abide by federal anti-trust laws when implementing rules about the ability of athletes to earn compensation, a University at Buffalo School of Law expert said today.

“The ultimate outcome of the battle remains in doubt,” says Nellie Drew, an adjunct professor who teaches sports law courses in UB’s School of Law and has been quoted extensively both locally and nationally on sports law issues including the amateur status of college athletes and domestic violence in the NFL.

“However, for the first time it is clear that the NCAA’s regulation of amateur athletes is subject to anti-trust scrutiny,” Drew says. “This means that the NCAA rules prohibiting college athletes from receiving compensation – which are at issue in two cases currently pending in the 9th Circuit, the same Circuit in which O’Bannon was decided – are now suspect as well.”

At issue is O’Bannon v. NCAA, a case that came to the U.S. Supreme Court from a 2009 lawsuit filed by former UCLA basketball star Ed O’Bannon, who sued to recover revenue received by the NCAA from the use of college athletes’ names, images and likenesses. Drew said the ruling issued by the 9th U.S. Circuit Court of Appeals included a ruling that was “unprecedented in NCAA litigation history.”

“The NCAA is not above the antitrust laws,” the judges from the 9th U.S. Circuit Court of Appeals wrote in Wednesday’s ruling. “And courts cannot and must not shy away from requiring the NCAA to play by the Sherman Act’s rules.”

The Supreme Court has so far upheld this important legal declaration.

“The case is one of a series challenging the validity of several NCAA rules as violations of the anti-trust laws,” Drew says, “each of which attempts to narrow a previous Supreme Court ruling which upheld an NCAA justification of certain of its rules as necessary to provide a unique consumer product – amateur collegiate sports.

“This justification has been the basis for the NCAA’s defense of its many regulations of collegiate athletics for over 30 years, founded on the increasingly dubious proposition that such regulations are essential for the promotion of amateur athletics, and the protection against insidious inroads of professionalism.”

The Supreme Court’s decision not to review O’Bannon leaves the 9th Circuit ruling intact, opening the door to further erosion of the NCAA’s ability to regulate collegiate athletics in the other two cases, Jenkins v. NCAA, and Allston v. NCAA, according to Drew.

“It remains to be seen how compelling the 9th Circuit will find the NCAA’s amateurism argument in those cases – and whether either of those ultimately will find its way to the Supreme Court,” she says. “The fundamental nature of the NCAA itself, long the bastion of amateur athletics, may hang in the balance.”