Court decision on paying college athletes could bring changes

The importance of a federal appeals court ruling that NCAA restrictions against paying college athletes violates antitrust laws “cannot be overstated,” according to a UB sports law expert.

“The Ninth Circuit issued a warning that will reverberate through the continuing dialogue about the role of the NCAA in regulating amateur athletics,” says Nellie Drew, who teaches sports law courses at the UB Law School 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.

Drew cites what she says is a crucial and influential sentence in the Ninth U.S. Circuit Court of Appeals’ written decision on Sept. 30: “The NCAA is not above the antitrust laws. And courts cannot and must not shy away from requiring the NCAA to play by the Sherman Act’s rules.”

“This strict enjoiner is unprecedented in NCAA litigation history,” Drew says. “It remains to be seen whether the Supreme Court will agree.”

The appeals court’s decision comes from a 2009 lawsuit filed by former UCLA basketball star Ed O’Bannon, who sued to recover revenue received by the NCAA and the use of college athletes’ names, images and likenesses.

In affirming in part the lower court’s decision, the appellate court flatly rejected the NCAA’s assertion that its rules governing amateurism are valid as a matter of law, according to Drew.

“The NCAA’s argument was based in large part upon dicta from a Supreme Court case, Board of Regents v. Univ. of Oklahoma, dating back to 1984,” Drew says. “The Ninth Circuit distinguished the O’Bannon case on the grounds that the Supreme Court case simply set the appropriate standard of review for NCAA regulations for federal anti-trust purposes.

“It did not give the NCAA carte blanche to ignore antitrust law when implementing amateurism regulations — or anything else.”

While the Ninth Circuit agreed with a lower court that restricting compensation would have a “significant anticompetitive effect on the college education market,” the judges recognized the same purpose could be achieved through a less-restrictive alternative: allowing schools to provide scholar-athletes with grants in the amount of the full cost of attendance.

“Today,” Drew says, “an additional development is expected from the same circuit court concerning another case challenging NCAA restrictions on student athlete compensation.”