Potential Game Changers Only Have Eligibility Left to Suit Up for a Different Kind of Court: Former Student-Athletes Bring Class Action Antitrust Lawsuit Against the NCAA

Journal of Business & Technology Law, Dec 2011

By Christine A. Burns, Published on 01/01/11

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Potential Game Changers Only Have Eligibility Left to Suit Up for a Different Kind of Court: Former Student-Athletes Bring Class Action Antitrust Lawsuit Against the NCAA

Journal of Business & Technology Potential Game Changers Only Have Eligibility Left to Suit Up for a Different Kind of Court: Former Student-Athletes Bring Class Action Antitrust Lawsuit Against the NCA A Christine A. Burns 0 1 0 This Notes & Comments is brought to you for free and open access by the Academic Journals at 1 Christine A. Burns, Potential Game Changers Only Have Eligibility Left to Suit Up for a Different Kind of Court: Former Student-Athletes Bring Class Action Antitrust Lawsuit Against the NCAA , 6 J. Bus. & Tech. L. 391 (2011) Available at: - Potential Game Changers Only Have Eligibility Left to Suit Up for a Different Kind of Court: Former Student-Athletes Bring Class Action Antitrust Lawsuit Against the NCAA I. Introduction Ed O’Bannon starred on the 1995 University of California, Los Angeles (“UCLA”) basketball national championship team.1 He went on to play for a few years in the National Basketball Association (“NBA”) and now lives a comfortable life as a car salesman in Las Vegas.2 About three years ago, he discovered that kids in his neighborhood knew him because they “played him” on a classic college basketball video game.3 This video game incorporates all of O’Bannon’s identifying characteristics into his video game character, with the exception of his name.4 The neighborhood kids learned O’Bannon’s playing style, his jersey number, and even his lefty jump shot, all just by playing the video game.5 O’Bannon was disturbed to discover that the National Collegiate Athletic Association (“NCAA”) and its licensing company, the Collegiate Licensing Company (“CLC”), were still profiting from his collegiate image and likeness 14 years after he left college without ever compensating him.6 In July 2009, O’Bannon initiated an antitrust class action lawsuit against the NCAA and the CLC in the U.S. District Court for the Northern District of Califor© 2011 Christine A. Burns * J.D. 2011, University of Maryland School of Law. 1. See Dan Wetzel, Making NCAA Pay?, YAHOO! SPORTS (July 21, 2009), http://rivals. yahoo.com/ncaa/basketball/news?slug=dw-ncaasuit072109&prov=yhoo&type=lgns (explaining Ed O’Bannon’s situation and the circumstances giving rise to a class action antitrust challenge brought against the NCAA by former NCAA student-athletes). 2. Id. 3. Id. 4. Id. 5. Id. 6. Id. nia7 on behalf of former college men’s basketball and football players, seeking unspecified damages for the use, sale, and licensing of the former players’ images and likenesses in video content, photographs, and other memorabilia.8 O’Bannon’s complaint includes an allegation that the NCAA restrained trade in violation of § 1 of the Sherman Antitrust Act (“Sherman Act”) by requiring student-athletes to forgo compensation for the use of their collegiate identity rights, even after leaving college.9 The licensing of the player images and likenesses at issue generates revenue for the NCAA and its institutions through a variety of technological formats, including video games, DVDs, photographs, stock footage used in television commercials, and rebroadcasts of “classic” games.10 O’Bannon and the class of former NCAA student-athlete plaintiffs claim that the NCAA’s conduct is “blatantly anticompetitive and exclusionary, as it wipes out in total the future ownership interests of former student-athletes in their own images—rights that all other members of society enjoy—even long after studentathletes have ceased attending a university.”11 O’Bannon and the class of plaintiffs seek injunctive relief permanently prohibiting the NCAA from using “Form 08-3a” and any similar image rights release forms.12 The class also seeks to enjoin the NCAA and the CLC from “selling, licensing, or using former student-athletes’ rights” that these entities do not own.13 This comment analyzes the allegations in the class action lawsuit brought by former NCAA student-athletes that the NCAA and its institutions violate § 1 of the Sherman Act by continuing to sell, license, and use student-athletes’ images and likenesses after they leave collegiate competition without compensation.14 Part II examines the purpose and elements of § 1 of the Sherman Act and the two types of 7. Class Action Complaint at 1, O’Bannon v. Nat’l Collegiate Athletic Ass’n (NCAA), Collegiate Licensing Co. (CLC), No. CV 09-3329 (N.D. Cal. July 21, 2009), http://online.wsj.com/public /resources/documents/072209obannonsuit.pdf. 8. See id. at 8; see also Michael McCann, NCAA Faces Unspecified Damages, Changes in Latest Anti-Trust Case, SPORTS ILLUSTRATED (July 22, 2009), available at http://sportsillustrated.cnn. com/2009/writers/michael_mccann/07/21/ncaa/index.html (listing the kinds of NCAA activities the class of former NCAA student-athletes allege to be in violation of antitrust laws). 9. See Class Action Complaint, supra note 7, at 3; see also McCann, supra note 8. 10. Class Action Complaint, supra note 7, at 4. 11. Id. at 3. 12. Id. at 8 (stating the kind of relief the (...truncated)


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Christine A. Burns. Potential Game Changers Only Have Eligibility Left to Suit Up for a Different Kind of Court: Former Student-Athletes Bring Class Action Antitrust Lawsuit Against the NCAA, Journal of Business & Technology Law, 2011, Volume 6, Issue 2,