NCAA opposes O’Bannon plaintiffs’ request for full review from 9th Circuit

The NCAA argued Monday that a request by the plaintiffs’ attorneys in the Ed O’Bannon antitrust lawsuit to have the case reviewed by a full panel of the 9th Circuit U.S. Court of Appeals should be denied.

The association’s filing comes after the three-judge appellate panel of Sidney R. Thomas, Jay S. Bybee and Gordon J. Quist ruled in September that the NCAA is in violation of antitrust laws but that college athletes are not entitled to deferred compensation of as much as $5,000 per year.

On Oct. 14, the plaintiffs’ attorneys requested that an 11-member panel review the three-judge panel’s majority decision. On Oct. 26, those judges ordered the NCAA to respond to the court. The NCAA strongly suggested that it would see a reversal of the district court decision on broader grounds than the plaintiffs seek in their request.

According to federal rules for appellate procedure, the court will not order what is known as an en banc rehearing of the case “without giving the other parties an opportunity to express their views whether hearing or rehearing en banc is appropriate.”

Attorneys for the NCAA argued Monday that plaintiffs’ attorneys did not identify a case which the appellate court’s decision conflicts nor state a “question of exceptional importance,” which would be required for the 9th Circuit to grant the en banc review.

The three-judge appellate panel was unanimous in affirming U.S. District Judge Claudia Wilken’s finding that the NCAA’s rules limiting what athletes can receive while playing sports are illegal. The panel also agreed with Wilken’s determination that the association must allow schools the option of offering scholarships that cover the full cost of attending college, not just the traditional elements of a scholarship -- tuition, room, board, books and fees. (Following action at its annual convention in January 2015, the NCAA now allows such cost-of-attendance-based scholarships.)

However, Bybee and Quist threw out Wilken’s plan to let schools and conferences deposit money in trust for football and men's basketball players that will become payable when they leave school or their eligibility expires. Under this setup, the NCAA would be allowed to set a cap on the amount of money that may be held in trust, but that cap cannot be less than $5,000 in 2014 dollars -- now about $5,040 -- for every year the athletes remain academically eligible.

The new benefits were set to be put in place for incoming and returning athletes, beginning with the 2016-17 school year.

Thomas wrote in dissent that he would have allowed the plan to go forward.

In its filing Monday, the NCAA argued that even if the plaintiffs’ grounds for an en banc review had merit, granting such a review would raise other issues that it contends would require reversal.

In the plaintiffs’ filing last month, their attorneys argued, in part, that Bybee and Quist misapplied the law and legal precedent by viewing this through the lens of a need to preserve amateurism among college athletes.

The plaintiffs also argued that a district judge’s “findings of fact should be upheld absent a definite and firm conviction that a mistake has been committed.” They added that Wilken found “with ample support from the NCAA’s own witnesses, consumer interest in college sports is driven almost entirely by school loyalty and geography – and not by” the NCAA’s limits on what athletes can receive.