OAKLAND, Calif. (CN) – As trial approaches in a class action from college athletes who say they should be compensated for their images, a number of major broadcasters filed briefs in support of the NCAA. The athletes claim the NCAA is submitting “a calculated barrage of filings” to prevent the trial from starting in June.
The NCAA says the case should be severed and that discovery isn’t complete.
Since 2009, a group of former college athletes have been embroiled in a legal battle over the use of their images in video games, merchandise and other promotional materials.
In the first complaint , former UCLA basketball player Ed O’Bannon said the National Collegiate Athletic Association violated his and other athletes’ right to make money off their likenesses. A separate complaint, later consolidated, was filed by former Nebraska quarterback Sam Keller.
The NCAA claims that the competitive effects of not paying its athletes outweigh the anti-competitive effects.
But the athletes claim 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.
U.S. District Judge Claudia Wilken refused to dismiss the former athletes’ third amended class action in October 2013. The next month, she certified a class of athletes seeking an injunction against the NCAA that would end the prohibition on athletes entering their own licensing deals.
In April this year, Wilken ruled partly in the athletes’ favor in one of several motions for summary judgment.
While the U.S. Supreme Court has not ruled on whether the First Amendment prevents an athlete from asserting a right of publicity claim, Wilken noted in April 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.
The NCAA filed a motion for interlocutory review of Wilken’s order, which the antitrust plaintiffs opposed in a new filing this week.
“This motion is part of a calculated barrage of filings since April 25, the purpose of which is to prevent the trial set for June 9 from going forward,” attorney Michael Lehmann wrote for the athletes. “The antitrust plaintiffs respectfully submit that the Court should put a quick end to these diversionary tactics.”
Last week a number of broadcasters and nonprofits filed two amicus briefs in support of the NCAA’s motion for interlocutory appeal of Wilken’s April order .
The broadcasters include ABC, CBS and Fox, and were joined by Reporters Committee for Freedom of the Press.
The First Amendment Coalition filed a separate amicus brief .
“State law has consistently vested exclusive broadcasting rights in the producers of entertainment, not individual participants in a team sport,” attorney Celeste Phillips wrote for the broadcasters.
As the NCAA has done, the broadcasters’ brief notes that Little League and high school basketball games often appear on television, and those minor athletes are not compensated for their rights of publicity.
“Collegiate athletes occupy a unique, hybrid status, because NCAA rules permit athletic scholarships and proscribe any other compensation,” Phillips wrote for the broadcasters.
“It is not the case, however, that professional athletes earn their compensation by reaping rewards from exercising ephemeral rights of publicity in game broadcasts that student-athletes are denied. Instead, it is a function of the structure of the sport in which they participate.”
The broadcasters said “that they take no position whatsoever” about whether student-athletes should be paid, but rather, advanced the argument that the athletes do not have the asserted right of publicity.
The First Amendment Coalition argued in its amicus brief that “student-athletes will be free to negotiate individually for publicity rights” if the athletes “would have to transfer their rights of publicity to some representative entity,” as Wilken concluded previously.
“The uncertainty created by such a scenario – do broadcasters have the right to televise a particular game, or do they not? – will cause the NCAA, networks, and associated businesses to censor their protected speech,” attorney Kent Raygor wrote for the First Amendment Coalition. “Such self-censorship is anathema to the First Amendment, and must be addressed as early as possible.”
The athletes suing for antitrust claims disagreed with how the amicus briefs characterize the action, and said both the amici and the NCAA have advanced “straw man” arguments.
“The antitrust plaintiffs have never said that the NCAA and its members should not enter into exclusive licenses with broadcasters. Nor have they said that those licenses cannot be structured to include the names, images and likenesses of players,” attorney Michael Lehmann wrote Wednesday.
“What they do say is that if the NCAA and its members are going to arrange for such exclusive deals, they should compensate players for use of their names, images and likenesses through some contractual group license in advance of dealing with the broadcasters.”
Granting an interlocutory appeal to the NCAA would not make the trial materially different, Lehmann argued.
“If and when the Ninth Circuit takes up this issue, it would benefit from the more complete factual record created at trial,” the attorney wrote.
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