No Pay for College Athletes, NCAA Says

(CN) - The NCAA said it doesn't exploit college athletes, answering an ongoing class action by former players who claim the league uses their images in broadcasts and videogames but restricts them from making any money.

Since 2009, a group of former NCAA athletes have been embroiled in a legal battle over the use of their images in videogames, merchandise and other promotional materials. In the first complaint, former UCLA basketball player Ed O'Bannon said the NCAA 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 consolidated class complaint earlier this year. In November, she partly certified a class of athletes seeking injunctive relief against the NCAA.

That class seeks an order ending the prohibition on athletes entering into licensing deals for the use of their names and likenesses in video games and broadcasts.

"Their request for this injunction is not merely ancillary to their demand for damages," Wilken wrote. "Rather, it is deemed necessary to eliminate the restraints that the NCAA has allegedly imposed on competition in the relevant markets. Without the requested injunctive relief, all class members - including both current and former student-athletes - would potentially be subject to ongoing antitrust harms resulting from the continued unauthorized use of their names, images, and likenesses."

Attorneys for the NCAA filed a motion for summary judgment last week, along with a memorandum in support. It disputed the athletes' characterization of participation in college sports as "exploitation."

"The record shows that playing college sports yields numerous benefits to student-athletes, both while in school (e.g., admissions, grant-in-aid packages, academic support services, health insurance, and the opportunity to participate in sports that are an integral part of collegiate life) and after," attorney Glenn Pomerantz wrote for the NCAA. (Parentheses in filing.)

Pomerantz added that the arguments made by the athletes are "based on errors of law and on a quintessential fact question." He said that athletes cannot prove that live broadcasts of football and basketball games are commercial in nature, which means the broadcasts are entitled to full First Amendment protections.

The NCAA also argued that because it did not renew its contract with videogame company Electronic Arts, the court should not grant injunctive relief to the athletes for "wholly hypothetical" transactions.

The NCAA has argued throughout the litigation that claims made by the athletes are barred by its principle of "amateurism," which the NCAA says does not violate antitrust laws.

The NCAA pointed to a survey showing that 68.9 percent of respondents were "opposed to paying money to student-athletes on college football and men's college basketball teams in addition to covering their college expenses." A number of respondents said they "were less likely to watch, listen to or attend games" if the athletes were paid.

This survey "destroys the athletes' arguments against amateurism," the league argued.

Additionally, athletes failed to show any evidence of other amateur-level sports broadcasts, such as the Little League World Series, that paid athletes for use of their images, the NCAA said.

"The reason that the Little Leaguers, the amateur golfers and the high school athletes are not paid for appearing on television is that they are amateurs," Pomerantz wrote for the league.

"Even when the Olympics was restricted to amateurs (between 1896 and the late 1980s) and the Olympics produced billions of dollars in television revenues, the athletes were paid no portion of the revenues because they were amateurs." (Italics and parentheses in original.)

Pomerantz pointed to a study by Professor James Heckman, who concluded that college athletes are more likely to attend college and have higher incomes than non-athletes. And their demands for compensation "would hit women's athletics particularly hard."

The NCAA cited an expert in gender equity in sports, who testified that "drastic cuts could be the outcome caused by plaintiffs' proposal, risking unraveling much of the progress and expansion in women's athletics that has been achieved in the past four decades."

"Paying men more because their sports are already popular will lock in gender differentials that are based and built on historical inequities," expert Judy Sweet added.

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