The NCAA has filed a flurry of motions in federal courts, seeking rulings that could delay the start of the landmark antitrust lawsuit brought by former UCLA basketball star Ed O’Bannon and others.
The latest filings target both the judge assigned to the case and the 9th Circuit Court of Appeals on issues that are at the center of the trial, now scheduled to begin June 9 in federal court in Oakland, Calif. Among them is a request for U.S. District Judge Claudia Wilken to reconsider an earlier ruling that the NCAA cannot use the defense that money from big revenue sports like football and basketball is used to fund smaller sports and women’s sports.
Other filings ask for the 9th Circuit to give the NCAA permission to appeal the class action certification decision earlier by Wilken, and for any litigation over the video game portion of the case to be either severed or for the trial to be postponed until a reputed $40 million settlement reached last year between the plaintiffs and EA Sports and others is finalized.
Lawyers for the NCAA also argued that they should be allowed to appeal an earlier ruling by Wilken dealing with First Amendment broadcast rights to the 9th Circuit before there is any trial.
“The issue is extremely important; the court’s ruling, if upheld, could fundamentally alter the nature of amateur athletics and raises First Amendment issues of enormous consequence,” NCAA lawyers wrote in filings this week.
The lead attorney for O’Bannon called the filings a last gasp attempt to derail a lawsuit filed in 2009 over whether athletes have the rights to market themselves and their own images instead of the NCAA.
“They are significant in the fact they express a great deal of desperation and lack of conviction in their position,” said attorney Michael Hausfeld. “No one files this many briefs in both district court and the court of appeals on this variety of issues unless you feel you have a particular vulnerability.”
There was no immediate indication from Wilken when she would rule on the filings.
O’Bannon sued the NCAA after seeing himself portrayed in a video game as a member of the 1995 UCLA national team. He and his attorneys argued that the NCAA both used and profited by his image without his consent and without him being compensated for it.
Plaintiffs say they not only want monetary damages for the former athletes, but an injunction that would force the NCAA to either drop or alter many of its rules to allow such things as additional compensation for athletes, the right for immediate transfers, and scholarships that continue until an athlete has graduated.
Some of those issues are now being debated by the five major conferences in the NCAA, with some rule changes likely by the end of summer.
Wilken in April ordered the two sides to try and reach a settlement, but Hausfeld said there was no progress in talks and no further talks scheduled.
“There’s a better chance of finding people lost in the Bermuda triangle than settling before trial,” he said.
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