U.S. District Chief Judge Claudia Wilken, Northern District of California (Hillary Jones-Mixon / The Recorder)
OAKLAND — A class action challenging the National Collegiate Athletic Association’s long-standing rules barring student-athletes from cashing in on their names and likenesses is barreling toward trial.
Considering cross-motions for summary judgment at a hearing on Thursday, U.S. District Chief Judge Claudia Wilken said she does not expect to issue an order for either side that will knock out the case. A class of current and former college athletes, who played on Division I men’s football and basketball teams between 1953 and the present, argue that NCAA policies, which bar them from striking group deals to license their names and likenesses for use in video games and television broadcasts, violate antitrust laws.
NCAA lawyer Glenn Pomerantz of Munger, Tolles & Olson told Wilken that the players’ claims are doomed because their games are events of public interest that are shielded by free speech protections.
“If it is not commercial speech, and it’s a matter of public interest, then the First Amendment trumps the individual rights,” he said.
But Wilken questioned why the games may be broadcast exclusively by one network if they are a matter of public interest.
“That’s where your parade of horribles goes wrong,” she said.
Arguing for the plaintiffs, Michael Hausfeld slammed the NCAA’s attempt to quash the players’ right of publicity.
“It’s a total circle,” he said of the NCAA’s argument. “The circle is that there is no economic value to your right because you don’t have any right, and you don’t have any right because we tell you you don’t have a right.”
Wilken certified a class of student-athletes in November but refused to approve a subclass of plaintiffs seeking damages in In re NCAA Student-Athlete Name & Likeness Licensing Litigation, 09-1967.
Hausfeld told Wilken that the plaintiffs seek an injunction to stop the NCAA from preventing the players from claiming a share of the licensing revenue. The plaintiffs previously proposed that universities could place licensing revenue in a fund to be paid to players after they graduate. But Hausfeld advocated a more open-ended approach at the hearing.
“We’re asking for the prohibition of the restraint, and then the market would determine how that plays out,” Hausfeld said.
Pomerantz tried to convince Wilken that the NCAA’s policies actually promote competition. If players were promised a share of licensing revenue, they would be drawn to universities with splashy athletics programs, putting small colleges at a disadvantage, he argued.
“It’s basic economics here,” Pomerantz said. “More and more of the most talented athletes will follow the money.”
Pomerantz also argued in court papers that the NCAA’s long-standing amateurism model has helped colleges strike a balance between sports and education for student-athletes.
But Hausfeld claimed the NCAA’s rules have done little to level the playing field among colleges and even less to reinforce the bond between athletics and academics.
“We’re talking about a restraint that is imposed for profit-maximizing purposes,” he said.
Barring a settlement, the parties are set for trial in June.
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