Academic journal article Journal of Corporation Law

Who's Afraid of the Big Bad NCAA? . . . the Ed O'Bannon V. NCAA Decision's Impact on the NCAA's Amateurism Model

Academic journal article Journal of Corporation Law

Who's Afraid of the Big Bad NCAA? . . . the Ed O'Bannon V. NCAA Decision's Impact on the NCAA's Amateurism Model

Article excerpt


On August 8, 2014, the United States District Court for the Northern District of California issued its decision in the highly awaited O'Bannon v. National Collegiate Athletic Association (NCAA) case, where a group of current and former NCAA football and men's basketball players challenged an NCAA provision prohibiting compensation for use of their name, image, and likeness (NIL).1 On September 30, 2015, the Court of Appeals for the Ninth Circuit affirmed the district court's ruling in part and reversing in part.2 The case, filed in 2009 by the named plaintiff, Ed O 'Bannon, along with 19 other student-athletes, challenged the NCAA's use of student-athletes' NIL in video games and live television broadcasts as a violation of antitrust law. 3 The O'Bannon decisions come in the midst of national debate and a number of student-athlete challenges to NCAA provisions about paying student-athletes above the current grant-in-aid scholarships offered by NCAA Division I schools.4

The debate regarding paying college football and men's basketball athletes engenders strong opinions on either side, but the near-billion dollar revenues generated by NCAA football and men's basketball raise the stakes and emotions surrounding this topic. Compensation for use of student-athletes' NIL creates a unique juxtaposition of a player's "right to publicity" and NCAA amateurism arguments. Student-athletes are unique participants in a commercial enterprise because they do not receive pay but contribute to the NCAA's success in commercializing college football and men's basketball. The O'Bannon decision introduces a new layer of complexity to the student-athlete "pay-forplay" debate because it supports student-athlete NIL compensation and seems to reject the historically successful NCAA amateurism defense.

This Note discusses the O'Bannon v. NCAA decisions and the impact on the NCAA's amateurism model. Part II of this Note addresses the history of the NCAA, its commercial growth, and the application of antitrust laws challenging NCAA provisions. Part II also distinguishes the details of O'Bannon v. NCAA and introduces the commercial/noncommercial test from Adidas America, Inc. v. NCAA.5 Part III analyzes the O'Bannon facts in the context of applying the Adidas commercial/noncommercial test. Part IV recommends the application of the Adidas commercial/noncommercial test by the NCAA to amend its provisions regarding player amateurism. Part V concludes by suggesting that courts hearing antitrust challenges against the NCAA incorporate the Adidas commercial/noncommercial test for provisions restricting player compensation.


A. History of NCAA Amateurism and Divisional Distinctions

1. History of the NCAA

Much of the debate that drives discussions about collegiate sports, particularly Division I football and men's basketball, is whether these widely popular endeavors are still truly amateur, wherein players receive no monetary remuneration. This debate centers around the NCAA, the non-profit governing body for the majority of intercollegiate athletic programs, whose basic purpose is "maintain[ing] intercollegiate athletics as an integral part of the educational program and the athlete as an integral part of the student body and, by so doing, retain[ing] a clear line of demarcation between intercollegiate athletics and professional sports."6 The NCAA's history is one that formed from a national concern, both social and political, to prevent the exploitation of collegiate athletes at the turn of the century.7

Since its inception, the NCAA upheld amateurism as its cardinal principle and purpose.8 A primary concern in the early formation of the NCAA was to address the need "to ensure fairness and safety" and to counterbalance the growing commercialization and "extreme pressure to win" in intercollegiate sports.9 During this time, intercollegiate sports faced major issues of cheating, unscrupulous recruiting practices, and severe-and even fatal-injuries to collegiate players. …

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