August 8, 2014

Multiple publications feature news of class action suit against the National Collegiate Athletic Association

3 min

Multiple publications featured news of a class action suit against the National Collegiate Athletic Association (NCAA) over the use of college players' names, images and likenesses without compensation. A California federal judge ruled that the National Collegiate Athletic Association's (NCAA) rules against paying student athletes for the use of their names, images and likenesses violates antitrust laws. Following a three week bench trial in June 2014, the judge said the NCAA's rules "unreasonably restrain trade in the market for certain educational and athletic opportunities offered by NCAA Division I schools."

Venable was one of several firms representing Ed O'Bannon (former UCLA basketball player) and other the plaintiffs in the suit. Partner Seth Rosenthal's questioning of witnesses at the trial was highlighted by multiple publications. 

Sports Illustrated and CBS Sports highlighted testimony over television broadcast contracts in June 12, 2014 articles. While questioning a sports television consultant who has negotiated deals between teams, leagues and networks, Rosenthal asked, "Is there anything in the contract that leads CBS and Turner to believe they didn’t have the rights of the participants in the game?" The witness answered no. The testimony also refuted a claim by the NCAA that broadcasters do not pay for the rights to show games, but rather exclusive access to where the games are played. Rosenthal asked the witness multiple times if the broadcast contracts include "any mention of access to facilities" hosting the events. The witness said they did not. 

In a June 16 article, Law360 noted Rosenthal's questioning of a Drexel University sport management professor as "refuting the association's argument that its restrictions on paying players for use of their names, images and likenesses protects their amateur status." In cross-examination, attorneys for the NCAA questioned the witness' qualifications without challenging the facts of her testimony. According to USA Today, Rosenthal said, "Hey, look, she's been doing this for 20 years. It's not as though she is picking a blog entry here and some random post on Twitter there and forming an opinion. This is what she does for a living. She studies, she teaches, she writes about college sports. That's her expertise. … The judge has already accepted her as an expert in the administration of college sport, and I suppose the NCAA is trying to do this to make a record for an appeal."

USA Today described partner Seth Rosenthal's cross-examination of Conference USA commissioner Britton Banowsky. The witness acknowledged his support of starting a trust fund for athletes who graduate, adding that he wishes some university presidents would "exercise better judgment" in terms of paying escalating coaches salaries in hopes of staying competitive. 

ESPN and USA Today wrote that Rosenthal grilled Banowsky about the lack of success teams from C-USA had against the power conferences, and got the commissioner to admit that some schools [Houston, Memphis, Central Florida and SMU] have left the conference in hopes of joining a BCS conference for more exposure and money. Banowsky agreed that this was a sign of the "extreme growth" that football and men’s basketball have enjoyed. 

At one point, presiding Judge Claudia Wilken asked for clarification on FBS and BCS. Rosenthal defined the terms for Judge Wilken, adding that "There's a new acronym, CFP, the College Football Playoffs."

Sports Illustrated focused on how Rosenthal successfully objected an attempt by NCAA attorneys to elicit an answer from Banoskwy that could have possibly advanced the defense's legal argument. Judge Wilken upheld Rosenthal's request, agreeing that the topic exceeded the scope of those allowable for Banowsky’s testimony. 

News of the ruling was featured in Law360 on August 8, 2014. On August 14, 2014, Law360 also featured the ruling in its "Legal Lions" section on August 14, 2014 and AmLaw Daily featured an interview with the lead attorney.