Amateurism is Dead, Long Live Amateurism?: Splitting the O’Bannon Baby

NCAA2As its college football season is in full swing, National Collegiate Athletic Association (“NCAA”) finds itself as both the winner and loser on the questions of its amateurism rules and compensation to student-athletes. The opinion from the U.S. Court of Appeals for the Ninth Circuit in O’Bannon v. NCAA leaves unanswered whether NCAA schools can compensate athletes for use of their names, images, and likenesses (“NILs”), and if so, what form that compensation may take.

The NCAA appealed a judgment from U.S. District Court Judge Claudia Wilken, who last year ruled that the NCAA’s bylaws prohibiting member schools from compensating student-athletes for use of their NIL was an unjust restraint of trade. O’Bannon v. Nat’l Coll. Ath. Ass’n, 7 F. Supp. 3d 955 (N.D. Cal. 2014). Judge Wilken concluded that the NCAA’s amateurism rules had pro-competitive benefits, and that the Plaintiff class had not shown that negotiating with third parties for compensation from use of their NIL while in school was a substantially less restrictive means for the NCAA to achieve those benefits. Id. at 984, 1004-05. However, Judge Wilken also found that member schools offering to student-athletes grants-in-aid up to the full cost of attendance — including cash stipends — and/or deferred compensation of up to $5,000, were less restrictive means of achieving the precompetitive benefits, and enjoined the NCAA from preventing member schools from making such offers. Id. at 1007-08. However, Judge Wilken qualified her judgment further by also holding that the NCAA could enact rules prohibiting schools from offering different amounts of money to different players in the same team’s recruiting class. Id. at 1008. The decision, while historic, did not permit a free market for paying student-athletes.

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Posted by Jim Smerbeck
Business Litigation
October 14, 2015

Supreme Court Holds “Content-Based” Sign Code Unconstitutional; What Laws Are Next?

freedom of speechThis past June, the U.S. Supreme Court issued a little-noticed, but major First Amendment decision in Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015). Although the case concerned a municipal sign code, the Court’s reasoning calls into question a variety of “content-based,” but viewpoint-neutral, laws and regulations. Indeed, Adam Liptak of The New York Times has called Reedthe sleeper case” of the Court’s last term.

So what happened? The Town of Gilbert, Arizona adopted a Land Development Code (“Sign Code”) that prohibited the display of outdoor signs without a permit.  Id. at 2225.  However, the Sign Code exempted from that prohibition 23 categories of signs that were identified by the type of information they conveyed.  Id. Each category was subject to different regulations, including how big the signs could be, and when and where they could be displayed.  Id. at 2224-25.

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Posted by Christopher Hollon
Business Litigation
October 9, 2015


arbitration_noticeIn Ohio, a party must have actual knowledge of an agreement that requires arbitration of disputes before that party can be compelled to arbitrate a dispute under the agreement.  Thus, merely posting a copy of an agreement in a place of employment is insufficient, in itself, to require an employee to arbitrate disputes with the employer under that agreement.  This is the holding in Jones v. Carrols, LLC d/b/a Burger King, 9th Dist. Summit C.A. No. 2738, 2015-Ohio-2250, ¶ 12, a recent ruling out of Summit County, Ohio.

The plaintiff in Jones began working at an Akron-area Burger King restaurant in 2004.  Id. at ¶ 2.  Two years later, Carrols—the owner of the Burger King location—implemented a Mandatory Arbitration Policy (MAP) that required employees to arbitrate nearly all employment claims.  Id.  Although Carrols required all new employees to sign a copy of the MAP, it did not require its then-existing employees (like Jones) to sign a copy.  Id.  Instead, Carrols: (1) distributed a memorandum to managers (to be disseminated to then-existing employees) stating that, by reporting to work on or after August 1, 2006, an employee agreed to the MAP; and (2) required managers to hang a poster containing the MAP in the place of employment.  Id.

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Posted by Michael Mayer
Business Litigation
September 30, 2015

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