Oral argument in NCAA appeal of O'Bannon set for March 17

Oral argument in the NCAA's appeal of the Ed O'Bannon class-action antitrust lawsuit have been set for March 17 in San Francisco, according to an order posted Monday by the 9th U.S. Circuit Court of Appeals.

The date — the first night of the NCAA tournament First Four — is even earlier than the one the NCAA had sought in a joint motion it filed with the plaintiffs last September. At that time, the NCAA had asked for oral argument to be set for a date in April or May, with the hope that the appellate court would rule before Aug. 1, when U.S. District Judge Claudia Wilken's injunction in the case is scheduled to take effect.

Monday's order said each side will be allotted 30 minutes before judges Sydney R. Thomas, the circuit's chief judge; Jay S. Bybee and Gordon J. Quist. That is the longest oral argument period mentioned in the 9th's Circuit's guidelines for attorneys, which state: "Cases scheduled for oral argument will be assigned 10, 15, 20, or occasionally 30 minutes per side."

Last Thursday, the 9th Circuit issued an order that revealed the case is now under the jurisdiction of those three judges, who ruled 2-1 against one of the NCAA's former co-defendants in what the 9th U.S. Circuit Court of Appeals has decided is a "related case."

The 9th Circuit's ruling in that case — which involved video game manufacturer Electronic Arts and former Arizona State and Nebraska football player Sam Keller — was labeled as erroneous by the NCAA in its opening brief for the O'Bannon appeal, which it filed in November.

The O'Bannon plaintiffs filed their answer last week, and the NCAA has until Feb. 11 to submit a reply.

In the Keller case, Bybee and Quist rejected EA Sports' bid to strike a complaint filed on behalf of Keller, who had alleged that EA illegally used his likeness in the NCAA Football game. Saying that the game was not protected under the First Amendment as an artistic creation, they sent the Keller case back to a district court. Bybee wrote the opinion, Thomas a dissent.

The NCAA's interest in the ruling stems from the O'Bannon plaintiffs' claim that the association violated antitrust law by limiting 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.

In its initial written argument in support of the O'Bannon appeal, the NCAA said Bybee and Quist ruled "erroneously" in the Keller case, contradicting "settled First Amendment doctrine" that allows expressive use of realistic images. The NCAA added that it "preserves this argument for (full 9th Circuit) or Supreme Court review."

The NCAA also argues that the First Amendment — combined with various laws and court rulings — prohibits athletes from claiming that they are entitled to compensation for the use of their names, images and likenesses in live telecasts because the telecasts constitute news coverage.

At the time of the 9th Circuit's ruling against EA, the Keller case and the O'Bannon case had been consolidated at the district court level even though the Keller case did not involve antitrust issues and was progressing at a slower pace than was the O'Bannon case because of EA's appeal. (The NCAA and the nation's leading collegiate trademark licensing and marketing firm, Collegiate Licensing Co., also were defendants in the Keller case, but the First Amendment issue and others involved in that appeal related to EA's role, so it pursued the appeal.)

The Keller case and some video game-related issues in the O'Bannon case eventually reached preliminary settlements, removing EA and CLC from the action, but the NCAA continued to cite the First Amendment as a reason it should prevail in the O'Bannon case, which went to trial this past summer.

Wilken ended up ruling in favor of the O'Bannon plaintiffs. She determined that NCAA rules limiting athletes to scholarships basically comprising tuition, fees, room, board and books violate antitrust laws and she ordered the creation of a system under which Bowl Subdivision football 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.

David J. Madden, the assistant circuit executive for the 9th Circuit Madden said in an e-mail last Friday that the O'Bannon case "was offered and accepted by the Keller panel as a comeback case under the court's" general rules.

Madden wrote that the rules define a comeback case as one "involving substantially the same parties and issues from which there had previously been a calendared appeal or opinion."

He added: "The purpose of this practice is to conserve judicial resources by assigning related cases to a panel already having substantial understanding of the underlying facts of the case. O'Bannon and the (NCAA) are parties in both cases, which also involve the same video games. The two cases were so closely related that they were originally consolidated at the district court for purposes of pretrial proceedings."

Bybee and Thomas are members of the 9th Circuit, with Thomas the chief judge. Quist is a senior district judge in the Western District of Michigan who was temporarily assigned to the 9th Circuit for the Keller case; such assignments are allowed when judicial need arises.

University of San Diego law professor Shaun Martin, an expert on 9th Circuit matters.Martin said it is unusual for the court to determine on its own that one case is related to a prior case and for the same panel of judges to assume jurisdiction over the subsequent case. Usually, Martin said, such determinations are made after a request by one of the sides. No such requests have been recorded in the 9th Circuit's list of filings in the O'Bannon case.

"With run-of-the-mill cases, no one around even remembers (what might be) a related case," Martin said. "This ain't a run-of-the-mill case."

Martin said that the NCAA's specific assertions about Bybee's Keller appeal opinion won't help its cause in the O'Bannon case, but the bigger issue is that the three judges "already have expressed their opinions in a related case."

But Martin also cautioned that the NCAA's appeal of Wilken's ruling primarily focuses on other issues — Wilken's refusal to follow a 1984 Supreme Court ruling that the NCAA has relied upon to preserve its amateurism system and her injunction's specific reach into NCAA rules-making.

Thomas, the judge who favored EA in the Keller appeal, wrote as part of the reason for dissent that for a variety of legal reasons "an individual college athlete's right of publicity is extraordinarily circumscribed and, in practical reality, non-existent."

However, he added in a footnote: "The issue of whether this structure is fair to the student athlete is beyond the scope of this appeal, but forms a significant backdrop to the discussion." He cited the NCAA's hundreds of millions of dollars in revenue and that vast majority of comes from "television and marketing fees. However, few college athletes will ever receive any professional compensation. … And participation in college football can come at a terrible cost. The NCAA reports that, during a recent five-year period, college football players suffered 41,000 injuries, including 23 non-fatal catastrophic injuries and 11 (fatalities) from indirect catastrophic injuries."