Ed O'Bannon, a former UCLA basketball star, filed a lawsuit against the NCAA in 2009 challenging its rules prohibiting college athletes from being compensated for the use of their names, images, and likenesses. This lawsuit would eventually dismantle the fiction of amateurism in college sports. It led courts to rule that the NCAA's compensation rules represented an illegal restraint of trade. While the lawsuit helped pave the way for college athletes to make money off their NILs, it also brought unintended consequences such as potentially undermining non-revenue sports that rely on subsidies from football and men's basketball.

1. Amateurs No More
JRN 589 / 450
Ed O’Bannon
Prof. Hanley

2. Ed O’Bannon
In 2009, UCLA men’s basketball
player Ed O’Bannon filed a federal
lawsuit against the NCAA for use
of his name, image and likeness
for a video game without
compensation.
That lawsuit would eventually lead
to the end of the fiction of
amateurism in the NCAA.

3. Ed O’Bannon
O’Bannon was a star collegiate
player, winning the 1995 NCAA
Tournament in men’s basketball as
UCLA defeated Arkansas.
O’Bannon scored 30 points and
accumulated 17 rebounds in the
game, and he went on to play two
years in the NBA and eight in
Europe.

4. Ed O’Bannon
O’Bannon was already a widely
known collegiate star when UCLA
won the championship.
Electronic Arts, a video game
company, recognized that and
depicted O’Bannon in its
collegiate basketball video game
in 2008.

5. Ed O’Bannon
EA had been depicting the names,
images and likenesses of
collegiate football players and
men’s basketball players
beginning the late 1990s.
It paid the Collegiate Licensing
Company (CLC), for commercial
use of players images, and CLC
passed along a cut to the NCAA.

6. Ed O’Bannon
O’Bannon sued the CLC and NCAA
in 2009, asserting that the NCAA’s
amateurism rules amounted to an
illegal restraint of trade because
they precluded student-athletes
from being paid for use of their
names, images, and likenesses
That was a violation of the
Sherman Anti-Trust Act.

7. Ed O’Bannon
Meanwhile, a former starting
quarterback for the Arizona State
University, Sam Keller, and the
University of Nebraska football
team separately sued the NCAA,
CLC and EA.

8. Ed O’Bannon
O'Bannon’s case focused on
NCAA/CLC's sale and distribution
of commemorative DVDs
containing footage of UCLA's 1995
championship win. Keller,
challenged the NCAA/CLC's
authorization of players'
likenesses used in NCAA-licensed
football and basketball games.

9. Ed O’Bannon
O’Bannon and Keller argued that
the NCAA unfairly profited at the
expense of them and other
college athletes.
They asked the court for relief
from what they characterized as
“unjust enrichment” by creating
trusts from which college athletes
could receive after leaving school
to preserve the rules of
amateurism.

10. Ed O’Bannon
That means O’Bannon and Keller
weren’t seeking to “upend the
entire tradition of amateurism on
which the NCAA's mission is
founded and from which it derives
value, as the Supreme Court held
in Board of Regents of the
University of Oklahoma (a case
over TV broadcasts),” wrote
scholar Julia Brighton.

11. Ed O’Bannon
Instead, “a trust solution would
allow the NCAA to continue to
operate under the ideal of
amateurism, and its relationship
with member schools could
remain intact,” wrote Brighton in
the 2011 Communications &
Entertainment Law Journal article.

12. Ed O’Bannon
“This is a minimally invasive
solution that preserves the
overall structure of the
organization and would allow
the NCAA to remain true to its
ideals while still sharing its
profits with the student-
athletes who help to generate
them,” she concluded.

13. Ed O’Bannon
Brighten’s proposal mirrored that
of the U.S. Olympic Committee’s
structure that sidestepped rules of
amateurism by paying participants
in international competitions
through trusts, which disbursed
cash for training, and which
distributed the full value of
sponsorship deals when the
athletes’ careers ended.

14. Ed O’Bannon
Before the trial, EA settled the
class-action lawsuit against it.
EA paid a total of about $40
million to more than 29,000
current and former players who
were part of our class action.
Some players got checks worth up
to $7,200. The average landed on
$1,200.

15. Ed O’Bannon
“EA settled in part because it
didn’t care about protecting
amateurism—it cared about
publishing video games—and in
part because it knew that it had
used players’ images and
likenesses without their
permission,” wrote O’Bannon and
his attorney Michael McCann in a
book about the case.

16. Ed O’Bannon
“First off, as the evidence showed,
Electronic Arts wanted to pay for
the right to use complete player
identities. It wanted every college
roster and every roster of top
teams from the past. It wanted
every college player’s name. It
wanted a license to publish
everything about the players and
their identities within college
hoops.

17. Ed O’Bannon
“EA didn’t care if it had to pay the
NCAA, the schools, the players,
the former players, or some
combination of them for that
right,” O’Bannon and McCann
wrote.

18. Ed O’Bannon
They added: “This isn’t surprising
at all if you think about it. EA is in
the business of making video
games. It’s not in the business of
propping up amateurism. It
doesn’t care about amateurism.
Never has. Never will.”

19. Ed O’Bannon
The NCAA stopped licensing its
intellectual property to EA, which
decided to end its production of
college sports video games.
Without access to recognizable
players, EA believed it could not
market the games.

20. Ed O’Bannon
The two cases against the NCAA
were consolidated in a federal
district court in San Francisco, and
Judge Claudia Wilken ruled that the
NCAA's compensation rules were an
unlawful restraint of trade.
The judge ordered the NCAA to stop
barring member schools from giving
student-athletes scholarships up to
the full cost of attendance at their
respective schools.

21. Ed O’Bannon
But Judge Wilken did state in her
decision that she rejected one of
O’Bannon’s proposed alternatives
– unlimited compensation for
commercial products – as it would
“undermine the efforts of both
the NCAA and its members
schools to protect against
‘commercial exploitation’ of
student athletes.

22. Ed O’Bannon
The NCAA appealed, and in 2015
the U.S. Court of Appeals for the
Ninth Circuit ruled in favor of
O’Bannon, finding that certain
NCAA amateurism rules violated
federal antitrust law.

23. Ed O’Bannon
The Court of Appeals ruling
rejected what most previous
courts had accepted as fact: that
the NCAA’s definition of
amateurism would be presumed
under the law to be the prevailing
standard. (A 2009 case, Oliver v.
the NCAA, had earlier rejected the
organization’s prevailing definition
in a case involving a scholarship_

24. Ed O’Bannon
The NCAA appealed to the
Supreme Court, which refused to
hear the case.
Interestingly, O’Bannon wanted
the Supreme Court to rule on the
case to establish precedent that
would guide future decisions on
proper compensation for student-
athletes.

25. Ed O’Bannon
In short, the courts had
determined that the NCAA’s
amateurism rules constituted an
anti-competitive conspiracy of its
1,200 member institutions,
conferences and related
organizations.

26. Ed O’Bannon
The purpose of the conspiracy was
clear to the courts: to deny men’s
basketball and football players of
the monetary value of their
names, images, and likenesses
when used for commercial
purposes.

27. Ed O’Bannon
The rulings showed that since
intercollegiate sports emerged in
the late 19th century, student-
athletes had been used as
moneymaking instruments for the
schools. The flood of TV money
beginning in the 1950s directly
went to the member institutions
who deepened their commercial
bounty by licensing products
associated with their teams and
athletes.

28. Ed O’Bannon
The O’Bannon case eliminated the
fiction of amateurism in college
sports and paved the way for state
legislation across the U.S. that
required schools to pay for the
names, likenesses, and images of
the players.
But it, like many cases, had
unintended consequences.

29. Ed O’Bannon
In a 2016 article published in the
Iowa Law Review, Dillon J. Besser
wrote that non-revenue sports
would be placed at risk by NCAA
policies that would lead to pay-
for-play in football and men’s
basketball, the two sports that
generate most of the money for
the organization and its member
institutions.

30. Ed O’Bannon
As Besser points out in the article,
the O’Bannon case excluded non-
revenue sports.

31. Ed O’Bannon
“The real end game for legal
battles like O’Bannon is not
whether schools will have to share
revenues with FBS football
players, but ‘football players
deciding whether they should
continue to allow gymnasts,
swimmers, wrestlers and the like
to share in their money,’” wrote
Besser, quoting Dan Wetzel of
Yahoo! Sports.

32. Ed O’Bannon
Sports economist Andy Schwartz
agreed, as quoted in Besser’s
piece:
“And so if those programs are of
so little value to the campus
community as a whole, that with
the reduction of the subsidy from
football and basketball, no one
values them enough to pay for
them if the subsidy is reduced,
they will probably go away.”

33. Ed O’Bannon
Besser discussed scenarios if the
NCAA goes all-in on the pay for
play model.
Bear in mind that Besser wrote his
piece before the NCAA permitted
NIL income in 2021.

34. Ed O’Bannon
Besser discussed scenarios if the
NCAA goes all-in on the pay for
play model.
Bear in mind that Besser wrote his
piece before the NCAA permitted
NIL income in 2021.

35. Ed O’Bannon
1. The laissez-faire “anything
goes” model.
2. The government intervention
model (the government is
already intervening)
3. Continued NCAA Governance
under 21st century reforms.

36. Ed O’Bannon
“All it takes is a 21st century
approach by the governing voices
that can step forward with a real
economic and legislative reform
plan that suits all interests,
including those ‘other’ sports,”
Besson wrote.

37. Ed O’Bannon
“Non-revenue sports’ athletes
need not have doubts about their
future because of the O’Bannon
decision or any other student-
athlete compensation litigation.
Intercollegiate sports are entering
a new era, and all the sports are
coming right along for the next
chapter,” Besson concluded.

38. Ed O’Bannon
And that next chapter begins with
NIL legislation that permits
athletes to earn money – as much
as they can – off the playing field
by securing sponsorship details.