Yesterday morning, the Ninth Circuit Court of Appeals denied a request for a full rehearing of an earlier ruling in the Ed O’Bannon anti-trust lawsuit against the National Collegiate Athletic Association (“NCAA”). This decision could set the stage for either O’Bannon or the NCAA, which had opposed the rehearing, to petition the U.S. Supreme Court to hear the case.

What was the decision that the Appeals Court refused to revisit?

Previously, a three-judge panel for the Ninth Circuit Court of Appeals had unanimously affirmed the Northern District of California District Court Judge’s ruling that the NCAA’s limitation on student-athlete compensation violated the Sherman Antitrust Act by being too restrictive. O’Bannon’s appeal to the en banc review panel, however, was in connection with the Appellate Court’s decision to overturn the District Court’s injunctive ruling which had directed the NCAA to allow schools to pay athletes up to $5,000 per year in compensation for use of their names, images and likenesses (“NIL”).

Impact of O’Bannon Appeals Court Decision

As readers of this blog are aware, intellectual property rights exist with respect to a person’s name and likeness. The laws of at least 47 states have acknowledged a “right of publicity,” which grants an individual the right to prohibit third parties from commercializing his or her name, image, voice and/or likeness without permission. The decisions of the Appeals Court in the O’Bannon cases, however, have reaffirmed the NCAA’s right to prevent student-athletes from being compensated for use of their names, images or likenesses to the extent that such compensation is not related to expenses associated with attending school. Outside of the realm of college athletics, the risks associated with violating rights of publicity can be severe. Accordingly, it is important to remain vigilant about obtaining the written permission of any person whose name, image or likeness is explicitly used or otherwise serves as inspiration for a marketing campaign or commercial venture.