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Judge rejects NCAA's gender argument in college athletes' likeness rights suit

Judge rejects NCAA's gender argument in college athletes' likeness rights suit

The NCAA cannot justify its policy against paying student-athletes for the licensed use of their likenesses for broadcasts and merchandising by arguing that the policy ultimately supports women's college athletic programs, a federal judge ruled last week.

A group of current and former college athletes, led by former UCLA basketball player Ed O'Bannon, has been pursuing for nearly five years a class action against the NCAA in federal court over their right to a share of revenue generated from game broadcasts and the sale of video games, souvenirs and other merchandise bearing their images and names.

In her ruling issued April 11 in U.S. District Court in San Francisco, Judge Claudia Wilken denied both parties' motions for summary judgment of the lawsuit as a whole, but declared certain elements of the NCAA's argument inadmissible at trial.

Chiefly, Judge Wilken rejected the NCAA's position that allowing student-athletes to collect financial compensation for the use of their likenesses would jeopardize the viability of its member schools' less lucrative athletic programs, including women's sports.


“The NCAA cannot restrain competition in the 'college education' market for Division I football and basketball recruits or in the 'group licensing' market for Division I football and basketball teams' publicity rights in order to promote competition in those markets for women's sports or less prominent men's sports,” Judge Wilken wrote in her decision.

The ruling also noted the NCAA could, if it were so inclined, find a less restrictive means of preserving the economic sustainability of schools' less popular athletic programs than denying college football and basketball players the opportunity to profit on their likeness rights.

“For instance, the NCAA could mandate that Division I schools and conferences redirect a greater portion of the licensing revenue generated by football and basketball to these other sports,” Judge Wilken wrote. “The NCAA has not explained why it could not adopt more stringent revenue-sharing rules.”

The student-athletes' class action against the NCAA will proceed to trial on June 9.