Former National Collegiate Athletic Association student athletes have asked a U.S. appeals court to reconsider its ruling that schools don’t have to pay them beyond covering the cost of their education.
The athletes want an 11-judge panel to overturn a decision made two weeks ago in which a three-judge appeals panel upheld a trial judge’s determination that the NCAA was subject to antitrust law while rejecting a provision for compensation.
The lower-court judge had ordered colleges to pay the ex-players no less than $5,000 a year for the use of their name, image and likeness. The former students said in their filing Wednesday that evidence presented during a 2014 trial showed that “small payments” won’t hurt consumer demand for college sports.
The case, led by ex-college basketball player Ed O’Bannon, challenges the treatment of students as amateurs as college basketball and football evolved into multibillion-dollar businesses, with money flowing to the NCAA, broadcasters, member schools and coaches—everyone but the players.
The Sept. 30 decision “creates a rift in this court’s precedent, clashes with Supreme Court authority, sows confusion in antitrust jurisprudence, and involves questions of exceptional importance at the intersection of college athletics and antitrust,” the athletes told the U.S. Court of Appeals in San Francisco.
In the September ruling, the appeals panel endorsed a practice that the college sports governing body began five years after the athletes sued in 2009. Since Aug. 1, the NCAA has allowed member schools to give student athletes stipends—typically $3,000 to $7,000 a year—to meet the total cost of attendance beyond tuition and other fees that can now be covered by scholarships.
“While the plaintiffs initially claimed victory, their appeal today signals a different point of view,” Donald Remy, the NCAA’s chief legal officer, said Wednesday in an e-mail. “We look forward to presenting our views in the event the Ninth Circuit asks us to respond to the plaintiffs’ appeal.”
Two of the three judges on the panel said U.S. District Judge Claudia Wilken in Oakland, California, erred in ordering the NCAA to provide publicity rights payments of at least $5,000 a year for football and men’s basketball players.
The athletes said in Wednesday’s petition for further review that Wilken and the one appellate judge who voted in favor of the payments got it right.
Wilken “properly found that small payments would not harm consumer demand, rejecting the NCAA’s core contention that the restraint is essential to college sports,” the athletes argued. “That finding was amply supported by testimony from the NCAA’s own witnesses as well as evidence of the abandonment of ‘amateurism’ in the Olympics, tennis, and rugby (without adverse consequences).”
The rehearing request is subject to a majority vote by the appeals court’s 29 active judges. Either side in the case could also appeal to the U.S. Supreme Court.