This evening, the plaintiffs in the O’Bannon litigation filed a brief in response to the NCAA’s Dec. 12 summary judgment motion. Plaintiffs’ brief offers nothing new in this years-old litigation and simply underscores the fact that their core contentions are without merit and barred by the First Amendment.
The plaintiffs’ filing fails to rebut the NCAA’s showing that NCAA rules fully comply with antitrust laws, because they are necessary to create the unique experience of Division I collegiate athletics. The NCAA backed its December filing up with, among other things, testimony from nine university presidents and six athletic directors that spoke to the pro-competitive effects of the NCAA’s rules and how professionalizing a few current student-athletes would hurt other student-athletes, fans and the broader university communities. Plaintiffs offer no persuasive evidence to the contrary.
The NCAA also demonstrated in its December motion that the First Amendment bars plaintiffs’ novel theory—never accepted by any court—that participants in televised sporting events may claim a share of broadcast revenue simply because their faces and names appear on camera. Last fall, the Court made clear that plaintiffs’ claim can only survive if they produced evidence that such broadcasts are “commercial,” that is, that they are product advertising. Plaintiffs, unsurprisingly, have failed to do so. Their filing tonight fails to rebut the NCAA’s conclusive showing that televised sporting events are matters of intense public interest, and that no one—athletes, coaches, referees, cheerleaders, band members, or fans in the stands—can demand that they be paid when the camera catches their face in the broadcast.
“Plaintiffs continue to argue legal theories that the courts have repeatedly rejected, and that would have the regrettable effect, if accepted, of reducing athletic and educational opportunities for the overwhelming majority of male and female student-athletes. We look forward to further presenting our arguments in our reply brief, on Feb. 3, and at the Feb. 20 hearing before the Court” – Donald Remy, NCAA Chief Legal Officer.