Antitrust and Consumer Protection
Competition: Spring 2016, Vol 25, No. 1
Content
- 2015: a Year of Big Plaintiff Wins In Antitrust and Privacy Cases
- California Antitrust and Unfair Competition Law Update: Procedural Law
- California Antitrust and Unfair Competition Law Update: Substantive Law
- Chair's Column
- Considerations, Not Limitations: An Argument Against Defining the Anticompetitive Harm Under F. T.C. Vactavis As the "Elimination of the Risk of Potential Competition"
- Editor's Note
- Ftc Data Security Enforcement: Analyzing the Past, Present, and Future
- Golden State Institute 25Th Anniversary Retrospective and Prospective Views On California Antitrust and Unfair Competition Law
- Keynote Address: a Conversation With the Honorable Tani Cantil-sakauye, Chief Justice of California
- Managing Antitrust and Complex Business Trials-a View From the Bench
- Masthead
- Royal Printing and the Ftaia
- Settlement Negotiation Tactics, Considerations and Settlement Agreement Provisions In Antitrust and Ucl Cases: a Roundtable
- The Decision of the Supreme People's Court In Qihoo Vtencent and the Rule of Law In China: Seeking Truth From Facts
- The Nexium Trial Pioneers Actavis' Activation: a Roundtable of Nexiums Counsel Reflect On Their Six-week Trial
- The Ucl-now a Money Back Guarantee?
- Big Stakes Antitrust Trials: O'Bannonvnational Collegiate Athletic Association
BIG STAKES ANTITRUST TRIALS: O’BANNONVNATIONAL COLLEGIATE ATHLETIC ASSOCIATION
By David W. Kesselman1
I. INTRODUCTION
In June 2014, U.S. District Judge Claudia Wilken presided over a three-week bench trial in the high-profile antitrust class action filed by former and present Division I college basketball and football players against the National Collegiate Athletic Association ("NCAA").2 In this rare rule of reason trial, Judge Wilken was asked to determine whether the NCAA rules that prohibit basketball and football players from receiving compensation for the use of their names, images and likeness ("NIL"), constituted an unreasonable restraint of trade under Section 1 of the Sherman Act.
In a case offirst impression, Judge Wilken ruled in late September 2014 that the NCAA’s so-called amateurism rules banning compensation beyond the value of a full grant-in-aid scholarship were anticompetitive. Rejecting the NCAA’s position that prior Supreme Court precedent should be read to afford it immunity from antitrust scrutiny in this context, Judge Wilken balanced the student-athletes’ evidence of anticompetitive effects with the NCAA’s proffer of procompetitive justifications, and determined that the NCAA’s rules were more restrictive than necessary. In a decision spanning almost 100 pages, Judge Wilken fashioned an injunction requiring the NCAA to refrain from: (1) agreeing to set a cap on payment to student athletes below the cost of attendance; and (2) prohibiting NCAA member schools from depositing a limited share of licensing revenue in trust up to $5,000 per year for each year the student-athlete remained academically eligible to compete.3 The NCAA appealed Judge Wilken’s ruling in full.