O'Bannon plaintiffs file for increased athlete benefits

Lawyers for the plaintiffs in the Ed O'Bannon class-action antitrust lawsuit on Wednesday argued that the 9th U.S. Circuit Court should affirm a lower-court ruling against the NCAA, as well as an injunction that would allow further increases in the benefits major-college football and men's basketball players can receive.

In August, U.S. District Judge Claudia Wilken determined that NCAA rules limiting athletes to scholarships basically comprising tuition, fees, room, board and books violate antitrust laws. She also ordered the creation of a system under which Football Bowl Subdivision and Division I men's basketball players would be able to receive not only scholarships covering their full cost of attending school, but also what amounts to deferred compensation in exchange for their participation and the schools' use of their names, images and likenesses.

The NCAA appealed and submitted its initial written argument to the 9th Circuit in mid-November. In that filing, the NCAA claimed that Wilken erred "by refusing to follow" a 1984 Supreme Court ruling that the association has relied upon to preserve its amateurism system and "improperly … took on the role of superintendent of collegiate sports" in establishing the new benefits.

On Wednesday, the plaintiffs answered by saying that Wilken's ruling and injunction should be reviewed under a "clear error standard" and that review for clear error is "highly deferential."

They said that record shows, among other things, "the opacity of the NCAA's amateurism rules," and that "the NCAA's current version of 'amateurism' is vague and manipulable."

Although the appeal is supposed to be based on the record before the district court, the plaintiffs cited the vote at the recent NCAA Convention that will allow Division I schools to expand scholarships to cover the full cost of attending college, and in a footnote, they wrote that "a few weeks ago, the NCAA suddenly interpreted its rules to authorize payments" to cover the travel expenses of the players participating in the recent College Football Playoff championship game and the 2015 men's and women's basketball Final Fours.

The plaintiffs also attacked the NCAA's assertion that this case should be bound by the 1984 Supreme Court ruling in NCAA v. Board of Regents, a case that was about control of college football TV rights but the opinion on which included the statement that "in order to preserve the character and quality of the (NCAA's) 'product,' athletes must not be paid, must be required to attend class and the like."

The O'Bannon plaintiffs wrote that nothing in the Supreme Court's ruling in the Board of Regents case "remotely suggests" that the high court's analysis "should be frozen as of 1984." And they said that the NCAA's "inconsistent applications of 'amateurism';" its recognition that the commercialism of football and men's basketball "has eroded and undermined the relationship between athletics and academics" is evidence that was not before the Supreme Court in the Board of Regents case.

The 9th Circuit has agreed to handle the case in an expedited manner. The NCAA can offer a reply to Thursday's filing by Feb. 11. After that, the appellate court will consider whether to conduct oral argument, which seems all but certain.

The NCAA has asked that oral argument be set for a date in April or May. The 9th Circuit still has not specifically addressed that request, but appellate commissioner Peter L. Shaw's order last September expediting the case did say the appeal "will be accorded hearing or submission priority" under procedural rule that allows priority handling of appeals related to injunctions.

The case began in the summer of 2009 with a suit filed on behalf of O'Bannon, a former UCLA basketball player. It eventually boiled down to the plaintiffs seeking an injunction that would heavily overhaul the NCAA's limits on what Bowl Subdivision football and Division I men's basketball players can receive for playing sports and for the use of the names, images and likenesses in in live television broadcasts, rebroadcasts of games and video games.

This past weekend, at the NCAA Convention, schools and athlete representatives from the NCAA's five wealthiest conferences overwhelmingly voted to redefine an athletic scholarship so that it can cover the cost of attendance. That means a scholarship will now be able to pay for items including transportation and miscellaneous personal expenses.

The change occurred under a new governance setup that allows the Atlantic Coast, Big 12, Big Ten, Pacific-12 and Southeastern conferences greater autonomy in rules making.

The vote allows, but does not require, all Division I schools to award these so-called cost-of-attendance scholarships in all sports.

The new rules take effect Aug. 1, but scholarship agreements for the 2015-16 school year can be executed prior to that date.