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
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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:
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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
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)