On Monday of this week, the nation’s highest court declined to consider the highest profile challenge to the NCAA’s amateurism principles. In a move that surprised almost no one, the Supreme Court of the Unites States’ decision to take a pass on reviewing the Ninth Circuit Court of Appeals’ September 2015 ruling effectively ended the meandering, seven-year-long litigation journey of Ed O’Bannon and a group of similarly-situated plaintiffs, Indeed, all that appears to remain is an assuredly nasty squabble over the Plaintiff’s hefty attorney fees. And while honoring the words of a certain legendary Canadian rock trio – in choosing not to decide the Supreme Court still did make a choice – the pertinent issue to unravel is what the Supreme Court’s decision means, going forward, for both college athletes and the NCAA.
In many respects, the immediate impact is, candidly, not all that much of one. Even though this appeal for the Supreme Court’s intervention had the unusual factual circumstance of both parties requesting it, both the O’Bannon Plaintiffs and the NCAA remain squarely where they were before Monday morning’s announcement. The Ninth Circuit’s ruling that NCAA regulations are subject to antitrust scrutiny is still in place, as is its declaration that limiting football and men’s basketball players to receiving only tuition, fees, board and books violates antitrust laws (the oft-mentioned “cost of attendance” issue and the related NCAA rules changes it spawned). Further, the Ninth Circuit’s ruling that antitrust laws do not compel and that schools are not required to cover “cash sums untethered to educational expenses” (i.e., pay-for-play) is still controlling precedent in all the federal courts within its jurisdiction (generally, the Western US States and a couple of territories). And while both the O’Bannon Plaintiffs and the NCAA sought Supreme Court review for distinct, nuanced clarifications to the Ninth Circuit’s ruling, the end result is that the status quo, it seems, is maintained for both sides. The NCAA’s much-criticized view of amateurism remains largely unchanged, and soldiers on.
But that’s the short-term snapshot, and if Clay Davis has provided no other life lessons, it’s that the long game is so much more fun to speculate on. The macro-level, and more desired, result that would have come out of the Supreme Court granting cert in the O’Bannon matter would have been the conclusive and binding authority it would have provided for all jurisdictions, settling this issue once and for all. As it presently stands, the Ninth Circuit’s ruling in the O’Bannon matter is mandatory authority for only those states within its jurisdiction. For all other 41 states not under the Ninth Circuit’s umbrella, the court’s ruling in this matter is only persuasive authority, to be considered but not necessarily adhered to.
The crux of the matter here is immediately apparent: what if a student-athlete in one of these other 41 states brings a case involving issues similar to the O’Bannon matter (the likelihood of which should really be a matter of when, and not if)? What if, for example, a cadre of Midwestern-based student-athletes avail themselves of the legendary collective brainpower of the Chicago-based Seventh Circuit Court of Appeals in an attempt to further challenge the NCAA’s amateurism rules (after winding through the district court level, of course)? And, finally, what if, in their infinite wisdom, the three-judge panel comprising the Seventh Circuit on that particular day sees these related issues differently than their contemporaries in San Francisco? As I alluded to earlier, the fact that the Supreme Court elected not to hear the O’Bannon case shouldn’t have been much of a surprise: the grant of a writ of certiorari by the Supreme Court is an incredibly rare thing (less than 1 percent of all cases per term are selected to be reviewed, with requests often numbering close to 10,000). But any first-year law student that didn’t sleep through Civil Procedure will tell you that most observers believe this kind of “circuit split” – specifically, when two different circuit courts of appeals provide conflicting rulings on the same legal issue – is the most likely reason for the Supreme Court to grant review.
Still, the problem here should be obvious, as even if an action similar to the hypothetical above were to be filed tomorrow, this new matter would take an exceedingly long time to work itself out. Recall, for example, that the O’Bannon litigation spanned seven years, a not-uncommon length for a matter involving complex issues and class certification requests. And that, therefore, is the only real certainty to come out of the long-awaited finality of the O’Bannon litigation: that while the case itself may be done, this issue is not permanently resolved and its impact could still be felt throughout the next decade. Seismic change has not been forever forestalled, but perhaps just momentarily delayed. To be sure, there are currently similar matters involving issues of NCAA amateurism pending, so the situation remains fluid (coincidentally, one particularly interesting matter, the Jenkins suit against the NCAA, happens to be in front of the same federal judge that presided over the O’Bannon matter at the district court level). But for student-athletes, university administrators, NCAA personnel, and college sports fans across the nation, there remains a frustrating degree of uncertainty about what this brave new world will definitively look like. And that’s without even considering the feelings of the fanatical hordes of PlayStation devotees pining for the newest, most updated round of college sports-themed video games.