The fight over pay-for-play rules steamed ahead this month as the NCAA joined the O’Bannon plaintiffs’ request that the United States Supreme Court reconsider the ruling of the Ninth Circuit Court of Appeals, albeit for different reasons.
In March, O’Bannon sought review of the part of the Ninth Circuit’s ruling that found the NCAA did not have to pay student-athletes deferred compensation for the use of their name, image, and likeness. On May 13, the NCAA asked the Supreme Court to reconsider the Ninth Circuit’s ruling that found it violated antitrust law, stating that the Ninth Circuit failed to follow decisions of the Supreme Court and other federal appeals courts “under which rules that define the character of NCAA athletics, and are thus essential for the NCAA’s distinct product to exist, are upheld,” including the 1984 Supreme Court ruling in NCAA v. Board of Regents, where the Supreme Court ruled 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.”
Even with both sides seeking review, it is not certain that the Supreme Court will take the case—less than 1 % of the 8,000 or so cases appealed to the Supreme Court each term are ever heard. The NCAA stated in its petition that “the need for review is particularly strong given the nationwide scope and importance of college athletics.”
In September 2015, the Ninth Circuit unanimously affirmed the district court’s decision that NCAA rules that prohibited student-athletes from receiving more than the value of a full grant-in-aid scholarship (tuition, fees, room, board and books) violated antitrust laws. The Ninth Circuit reversed, however, the district court’s ruling that would allow schools to provide student-athletes deferred compensation as much as $5,000 per year (payable when eligibility expired) for use of the athlete’s name, image, and likeness.
Once initial briefing is complete, if the Supreme Court chooses to hear the case, the parties will submit full briefs on the merits of their respective cases, followed by oral argument. The Supreme Court will then issue an opinion during its term from October 2016 to June 2017.