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9th Cir. Denies En Banc Review in O'Bannon, NCAA Antitrust Case

By Casey C. Sullivan, Esq. on December 16, 2015 2:59 PM

Ed O'Bannon and other college athletes won't get an en banc rehearing in the Ninth Circuit, the court announced today. O'Bannon, the once-upon-a-time star of the UCLA basketball team, sued the NCAA for antitrust violations after he discovered the association was licensing his image for video games, while preventing college athletes from making a dime off such deals.

The Ninth Circuit gave the NCAA a partial win in September. Yes, the NCAA is subject to antitrust laws, the court found. But no, the NCAA cannot simply set aside $5,000 in trust for athletes, payable on graduation. And no, the court announced today, it's not willing to reconsider.

Call It a Tie?

In the legal matchup between players and the NCAA, no one emerged as a clear victor. The Ninth Circuit's September opinion affirmed a finding that the NCAA was subject to antitrust laws and that the group had violated those laws when it prohibited student athletes from profiting off the use of their names, images, and likenesses.

But the Ninth also undid the district court's solution to the problem of student payment: deferred compensation. As part of its permanent injunction, the district court ordered the NCAA to set aside up to $5,000 a year in trust for student athletes, to be paid out when they leave college. Under the Ninth's ruling, athletes could get the cost of college attendance covered by scholarships, but not small cash payments.

The ruling was a draw. Or the court punted. Or perhaps there was no slam dunk. Whatever pun you prefer, the NCAA was found to be subject to antitrust rules, but athletes lost their payout.

No Instant Replay in the Ninth

O'Bannon and other athletes asked for en bank review. Their petition for rehearing cited a host of errors, complaining of the opinion's "wholesale re-evaluation of trial evidence" and "tautological" antitrust tests. Further, the court wrongly relied on Supreme Court dicta that the NCAA should be afforded "ample latitude" in governing college sports.

The Ninth Circuit, however, wasn't interested in those arguments. Only one judge from the Ninth Circuit panel, Judge Sidney Thomas, thought the case worthy of en banc review, according to USA Today. No other judge requested that a vote be taken on the rehearing.

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