United States: Ten Things To Know About The NCAA / O’Bannon Antitrust Case

Last Updated: August 13 2014
Article by Richard Brand, Michael Stevens, Maidie E. Oliveau and Karen S. Vladeck

In a landmark ruling for college athletes, US District Judge Claudia Wilken ruled that the National Collegiate Athletic Association (NCAA) cannot stop players from selling the rights to their names, images, and likenesses to the schools that they attend. The decision struck down NCAA regulations that prohibit players from receiving anything other than scholarships and the cost of attendance at their schools, holding that such regulations unreasonably restrain trade. O'Bannon v. NCAA (N.D. Cal. Aug. 8, 2014).

The case arose in 2009, when former University of California, Los Angeles (UCLA) basketball star Ed O'Bannon and 19 other former college athletes sued the NCAA, claiming that various NCAA regulations violated antitrust laws insofar as they reflected a conspiracy in restraint of trade among Division I schools and the conferences of which those schools are members, such as the Big Ten, the PAC 12, and the ACC. The lawsuit alleged that the regulations were aimed at blocking the athletes from receiving a share of the revenues that the NCAA, the schools, and the conferences generated from the use of the athletes' images in television broadcasts and video games. O'Bannon, who was MVP of the 1995 UCLA national championship basketball team, said he signed on as lead plaintiff after seeing his image in a video game authorized by the NCAA for which he received no compensation.

The Trial

As written about in prior Arent Fox alerts (click here and here to read them), after years of discovery and other pretrial proceedings, the case proceeded to trial before Judge Wilken in June. The litigation centered on federal antitrust law and whether the prohibition against paying players promotes the game and does not restrain competition in the marketplace.

Several players testified during the trial that, while in college, they viewed playing sports as their full-time occupation, and that the numerous hours they devoted to playing sports made it impossible to function like a regular student. O'Bannon testified that his "job" at UCLA was to play basketball and that it took up so much time that just making it to class was difficult. He claimed, as many others did, that he was "an athlete masquerading as a student," and that he was at UCLA strictly to play basketball.

Witnesses called by the NCAA during the trial testified that athletes received an education as payment for their services. The NCAA also put forth testimony that its economic model had worked for more than a century, and that paying players would make college sports less popular. The NCAA also put forth evidence that striking down the restrictions could force schools to cut other programs funded by the hundreds of millions of dollars generated by the football and basketball programs at many Division I schools.

The Judge's Decision

In a 99-page opinion, Judge Wilken sided with the players. Wilken rejected the NCAA's arguments in defense of its economic model, concluding that the "justifications that the NCAA offers do not justify this restraint and could be achieved through less restrictive means" while preserving college sports competition. Here are the top 10 things to know about the case and the decision:

  1. The ruling only applies to athletes who participate in football at Football Bowl Subdivision (FBS) Division I schools or who participate in basketball at all Division I schools. Athletes who participate in any other sport at any other level are unaffected by the ruling.
  1. Student-athletes may not go out and sell their names and likenesses to the highest bidder. But the ruling prevents the NCAA "from enforcing any rules or bylaws that would prohibit its member schools and conferences from offering their FBS football or Division I basketball recruits a limited share of the revenues generated from the use of their names, images, and likenesses in addition to a full grant-in-aid."
  1. Judge Wilken said that the NCAA could set a cap on what schools could pay athletes at $5,000 a year for covered football and basketball players. That would, at a maximum, amount to $20,000 per athlete over a four-year college career, which amount would be placed in a trust for the student-athlete.
  1. The money collected on behalf of an athlete that is put into the trust is only available to the athlete after he or she is finished competing in college athletics.
  1. If the applicable school does not use a player's name, image, or likenesses, there would be no money placed in trust and an athlete would be limited to receiving a cost-of-attendance scholarship.
  1. The decision by itself does not usher in an era of pay-for-play or endorsement deals for athletes. While the athletes are students, they can receive only a scholarship covering the full cost of attending college.

  1. The NCAA can still set rules governing eligibility, the number of scholarships a school may offer, and practice guidelines and retains the power to prevent athletes from signing endorsement deals.
  1. The NCAA's response to the holding is unclear. The NCAA will likely appeal the ruling (it has previously said it would take the case to the Supreme Court if it lost), and has given no indication that it is eager to embrace any form of payment to athletes that will change the way it does business.
  1. The changes will not be stayed while the NCAA appeals; the next recruiting cycle is likely to be the one affected. That means athletes who enroll in colleges on or after July 1, 2016 will be subject to the ruling.
  1. The NCAA still faces consequences from other major lawsuits — the Northwestern football player's unionization case (click here to read about it), and a pair of lawsuits alleging that the NCAA and the five largest football conferences conspired to limit the value of scholarships to less than the actual cost of attendance (Jenkins v. NCAA and Alston v. NCAA). If the plaintiffs in those cases are successful, it could have a far greater impact on the NCAA's model than the O'Bannon case.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions