Federal Judge Rejects NCAA's Gender Excuse in Class Action

     SAN FRANCISCO (CN) - The NCAA cannot argue that not paying football and basketball players helps it to support women's sports, a federal judge ruled in a class action from college athletes suing for their right to profit from their images used in video games and broadcasts.
     The heated legal battle, now in its fifth year, involves the NCAA's use of athletes' images in video games, merchandise and other promotional materials.
     In the first lawsuit , former UCLA basketball player Ed O'Bannon CLAIMED the National Collegiate Athletic Association violated his and other athletes' right to make money off their likenesses.
     U.S. District Judge Claudia Wilken refused to dismiss the athletes' third amended class action in October 2013.
     The next month she certified a class of athletes who seek an injunction against the NCAA that would end the prohibition on athletes entering their own licensing deals.
     Shortly after the class certification, both the athletes and the NCAA moved for summary judgment. Wilken ruled partly in the athletes' favor Friday.
     The NCAA has argued that the pro-competitive effects of not paying its athletes outweigh the anti-competitive effects, which justifies its decision.
     The athletes argued that by not offering recruits money from broadcasting and licensing revenue, the NCAA deprives colleges "of a tool that they could otherwise use to recruit the top student-athletes," among other things.
     The NCAA says the principle of amateurism provides competitive benefits because it contributes to the popularity of college sports.
     Because there is conflicting evidence about whether paying athletes would affect the popularity of college sports, Wilken refused to grant summary judgment to either side on that issue.
     The NCAA also argued that BY not paying its athletes, schools' athletic budgets can better support more women's sports. Wilken rejected this argument.
     "This is not a legitimate pro-competitive justification," the judge wrote.
     "It is 'improper to validate a practice that is decidedly in restraint of trade simply because the practice produces some unrelated benefits to competition in another market,'" Wilken wrote, quoting the U.S. Supreme Court ruling in Sullivan v. National Football League.
     The NCAA could support women's sports and less prominent men's sports in other, less restrictive ways, Wilken said.
     "For instance, the NCAA could mandate that Division I schools and conferences redirect a greater portion of the licensing revenue generated by football and basketball to these other sports," Wilken wrote.
     "The NCAA has not explained why it could not adopt more stringent revenue-sharing rules," the judge wrote, granting the athletes summary judgment on that issue. "The challenged restraint is not justified by the NCAA's claimed desire to support women's sports or less prominent men's sports."
     While the Supreme Court has not ruled on whether the First Amendment prevents an athlete from asserting a right of publicity claim, Wilken noted that case law suggests that media organizations do not have "an unfettered right to broadcast entire sporting events without regard for the participating athletes' right of publicity."
     "Whether Division I student-athletes hold any ownership rights in their athletic performances does not depend on the scope of broadcasters' First Amendment rights but, rather, on whether the student-athletes themselves validly transferred their rights of publicity to another party," Wilken wrote.
     While Wilken rejected the athletes' argument that full game broadcasts were "commercial speech" under the First Amendment, she did not rule for either party on the issue of whether video clips and highlight footage are commercial speech.
     "If plaintiffs seek to prove that a similar market would exist for group licenses to use student athletes' names, images, and likenesses in clips and highlight footage, they will have to prove that there would be a demand for these clips and highlight footage specifically for use in commercial speech that is not protected by the First Amendment," Wilken wrote.
     The athletes previously moved to amend the definition of the class. Wilken granted the motion so the definition would reflect the athletes' third amended complaint, which reflects the athletes' antitrust liability theory.
     The trial is set to begin on June 9 in Wilken's courtroom, and a final pre-trial conference is scheduled for May 28.