OAKLAND, Calif. -- Four-and-a-half years after the case was filed, a federal judge Thursday green-lighted Ed O'Bannon's class-action antitrust lawsuit against the NCAA to proceed to trial beginning June 9.
Barring a settlement before then, the plaintiffs will ask a jury to strike down the NCAA's age-old restrictions preventing athletes from cashing in on their name, likeness and image.
"We're not asking for any money to be paid," Michael Hausfeld, attorney for the plaintiffs, said during Thursday's summary judgment hearing before U.S. District Judge Claudia Wilken. "We are asking for the restraint to be removed ... and then the market will determine how it plays out."
The purpose of Thursday's hearing was for Wilken to ask questions of both sides in response to their dueling requests for a summary judgment that would have ended the case before proceeding to trial. It's a rare occurrence, and as Wilken flatly acknowledged near the end of the two-hour proceeding, "The whole case is not going away on summary judgment." But she could issue a ruling that dimisses certain types of evidence or narrows the scope of the case.
Wilken primarily directed her questions at NCAA attorney Glenn Pomerantz.
For instance, the NCAA has argued in filings that First Amendment protections regarding the broadcast of newsworthy events -- i.e. a college football game -- preclude schools from having to seek permission from athletes for their appearance in game broadcasts. Wilken questioned 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.
Wilken also expressed skepticism regarding three of the NCAA's five pro-competitive justifications for why its no-pay rule does not violate antitrust laws. Most notably, she expressed a "problem" with the notion that sharing revenue with the athletes would negatively impact competitive balance within college sports. "Maybe there's a less restrictive alternative?" she wondered. "Maybe you could enforce more competitive balance by having coaches' salaries addressed."
One of the NCAA's other justifications is protecting amateurism. Wilken largely skipped past the topic with a dismissive line: "I don't think amateurism is going to be a useful word here."
Ultimately a jury, not the judge, will decide both sides' fate, but Wilken indicated she might throw out one or more of those justifications from consideration.
"Up to this point you always heard the NCAA argue that these restraints are lawful --purportedly," Hausfeld said to reporters afterward. "We're done with that. There's no presumptions. This court is saying if we go to trial, you're going to have to prove that."
The plaintiffs contend that athletes should be allowed to collectively license use of their name, likeness and images by broadcasters, just as pro sports' player unions do. While the origins of the case stem from O'Bannon, a former UCLA basketball star, seeing his avatar in an EA Sports video game, the plaintiffs' focus has shifted almost entirely to game broadcasts.
EA and licensing company CLC are no longer defendants in the case following a $40 million settlement announced last November, though Wilken expressed concern Thursday that the settlement has not yet been finalized. Hausfeld said in court that the parties are "close," and following a private side-conference between the judge and the attorneys she returned feeling confident enough to reaffirm the June trial date. It is scheduled to last 19 days.
While the NCAA has gone to trial numerous times over the years regarding a variety of issues, this would mark the first time its fundamental amateurism principles are the subject of a major trial.
"It was very significant," Hausfeld said of the case going to trial. "The NCAA and college sports will never be looked at the same today as it was before this case."
Donald Remy, the NCAA's chief legal officer, was in attendance but did not comment afterward. The organization released a statement on his behalf.
"We believe strongly in the merits of our case and will continue to defend the interests of the hundreds of thousands of student-athletes not recognized by the plaintiffs," said Remy. "For them and for all student-athletes, the current model of college sports provides opportunities for success during college and beyond. We believe the arguments presented show that the plaintiffs' claims are not supported by the facts or the law."