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The Ed O’bannon Case Will Go To Trial

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NCAA College FootballMuch to the chagrin of Mark Emmert and the NCAA Commissioner’s office,  Federal US District Judge Claudia Wilken has refused to dismiss  a 4 ½ year legal battle between the NCAA and Ed O’Bannon saying, “the whole case is not going away on summary judgment.” Meaning, probably, that this case is destined for the US Supreme Court at some point in the future.

And it is a big one. Ed O’Bannon is just spearheading a huge class-action antitrust lawsuit seeking retribution from online gaming manufacturers and the NCAA for the use of their images in their wildly popular sports video games.

Ed O’Bannon’s long legal battle with the NCAA took a major turn Thursday, with a federal judge ruling that the class-action antitrust lawsuit may not be dismissed so easily.

NCAA attorney Glenn Pomerantz argued that the First Amendment protections regarding the broadcast of newsworthy events, like college football games preclude schools from having to seek permission from athletes for their appearance in game broadcasts.

But what about the millions that were made off using the images? Exact likenesses in most cases in video games for sale on the open market? Should permission also be implied for that as well? Big question.

The judge asked Pomerantz why the NCAA can then sell exclusive game rights to a network like CBS while at the same time arguing the events are of public domain.  It seems like the NCAA Commissioner’s office would like to ‘have their cake and eat it too’.

Judge Wilken displayed skepticism when questioning the NCAA about their now infamous ‘five precompetitive justifications’ for why its no-pay rule does not violate antitrust laws.  Especially problematic is the idea that sharing revenue with the athletes would negatively impact competitive balance within college sports.

She asked the NCAA lawyers present, “Maybe there’s a less restrictive alternative?  Maybe you could enforce more competitive balance by having coaches’ salaries addressed.” Don’t you know that one brought a few jaws dropping down a bit!

A $40 Million settlement was reached last fall between the plaintiffs, including O’Bannon with the Electronic Arts and the Collegiate Licensing Company.  The case has now expanded past simply using a player’s likeness in video games to the legality of the entire college sports model.

Add to that the recent movements at the University of Northwestern in Evanston to unionize student athletes and it looks like the NCAA Commissioner’s office is going to be a very busy place for some time to come.

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