In O’Bannon v. NCAA, the NCAA recently filed a motion to dismiss O’Bannon’s claims. The primary issue of consideration was how the Court would treat dicta in Board of Regents v. NCAA. The NCAA correctly relied heavily on Board of Regents and dicta that stated “[i]n order to preserve the character and quality of the [NCAA’s] ‘product,’ athletes must not be paid, must be required to attend class, and the like.” The Court, however, found that Board of Regents “focused on a different set of competitive restraints” and “never even analyzed the NCAA’s ban on student-athlete compensation.” Accordingly, the Court construed Board of Regents narrowly and cited a number of other cases that also provided a narrow application to such language. The Court concluded that Board of Regents “does not stand for the sweeping proposition that student-athletes must be barred, both during their college years and forever thereafter, from receiving any monetary compensation for the commercial use of their names, images, and likenesses.”
As it pertains to right of publicity claims, the NCAA contended that the First Amendment and the California Civil Code bar student-athletes from asserting any rights of publicity in the use of their names, images, and likenesses during game broadcasts. The Court concluded that the First Amendment does not provide a basis for dismissing the broadcast claims on a Motion to Dismiss and referred to summary judgment proceedings as the appropriate vehicle. Additionally, the Court concluded the Copyright Preemption Doctrine was inapplicable in that “[i]ntellectual property rights do not confer a privilege to violate antitrust laws.” Accordingly, the NCAA’s Motion to Dismiss was denied.