Last Thursday, the NCAA announced that it had filed a notice of appeal of Judge Claudia Wilken’s August 8, 2014 decision in O’Bannon v. National Collegiate Athletic Association et al. The appeal was widely anticipated as the decision has been broadly viewed as a major setback for the NCAA. Although this is certainly true insofar as the court concluded that current NCAA rules represent a violation of federal antitrust law, the decision actually somewhat measured and contained some content beneficial to the NCAA, including (a) an acknowledgement of the NCAA’s interest in limiting payments to student-athletes while enrolled in order to promote the educational goal of integrating student-athletes into their respective campus communities, (b) an acknowledgement that limiting payments to student-athletes might help the NCAA maintain viewer interest in, and demand for, broadcasts of intercollegiate athletic contests, (c) an acknowledgement that permitting student-athletes to endorse commercial products would undermine the NCAA’s goal of preventing commercial exploitation of student-athletes, and (d) authorization for the NCAA to cap the amount of compensation paid by institutions to student-athletes for use of their likenesses. These aspects of the O’Bannon decision could be helpful to the NCAA, among other things in the context of Jenkins et al. v. National Collegiate Athletic Association et al. (the so-called Kessler litigation), in which the plaintiffs are expected to argue that the NCAA cannot limit student-athlete compensation at the cost of attendance. As a result, the NCAA’s decision to appeal is, on some level, interesting from a strategic standpoint.
In announcing its appeal, the NCAA made specific reference to a passage in Judge Wilken’s decision suggesting that reform of NCAA principles governing student-athlete compensation would be best achieved outside the courtroom. It is possible that discussion of such reforms may occur against the backdrop of the NCAA’s appeal and in advance of the decision becoming effective for the 2015-2016 academic year, though the pendency of Jenkins and other litigation will necessarily pose challenges in this regard.