SAN FRANCISCO (CN) - In its fight for the reversal of a district court's historic ruling allowing student athletes to be compensated from broadcast revenue, the NCAA hung its legal hat on the argument that as the governing body for college athletics it has broad authority to protect amateurism in college sports by regulating student-athlete pay.
"If this were a challenge just flat out to a rule that said you aren't paying the full amount of the reasonable expenses of attending college, and the full amount is not consistent with the principle of amateurism, we would have a different case," NCAA attorney Seth Waxman told a 3-judge panel of the 9th Circuit on Tuesday. "But this is a situation in which a judge has said no, the athletes must be allowed to share in the specific commercial revenue stream that derives from their participation in sports, and that is not what amateurs do. It's what professionals do."
Waxman, a former U.S. solicitor general, added, "What constitutes reasonable expenses is a decision for the NCAA, an association of 1,100 educational institutions to make, not a federal antitrust judge to decide."
The idea that U.S. District Judge Claudia Wilken overstepped her authority by imposing an injunction that prohibits the NCAA from enforcing rules that student-athletes cannot be for the use of their names, images and likenesses was a common refrain for Waxman.
"It can't be the role of an antitrust court to essentially redefine the rules of eligibility that define the amateur nature of athletics," he said. "In no amateur sport, in no amateur league that exists are athletes permitted to be paid to play. The notion that an antitrust court could say 'I don't see how that violates the rules of amateurism,' it just doesn't compute."
In its appeal of Wilken's 2014 ruling, the NCAA has leaned on the 1984 Supreme Court case Oklahoma v. Board of Regents, which said that the NCAA "needs ample latitude" in maintaining amateurism, including not paying student-athletes.
NCAA believes Wilken erred by not following Board of Regents in her landmark ruling that said the NCAA's rules limiting what student-athletes can receive from schools "unreasonably restrain trade in the market for educational athletic opportunities for Division I colleges and universities."
Wilken explained her move, writing that "the college sports industry has changed substantially in the thirty years since Board of Regents was decided."
Her ruling allows for scholarships covering the full cost of college attendance, and permits deferred name, image and likeness payments of no less than $5,000 a year for every year a student athlete plays.
Led by former UCLA basketball star Ed O'Bannon, 20 student athletes sued the NCAA in a 2009 class action for the right to a share in the television broadcast revenue for their names, images and likenesses. A two-week bench trial was held in June.
On Tuesday, O'Bannon's lawyer Michael Hausfeld said the NCAA misinterpreted its key case. "They're trying to extrapolate that Board of Regents has somehow established an impregnable determination that no rule in anyway encompassing the rubric of amateurism can be challenged, and that's not what Board of Regents stands for."
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