Monday morning, the Supreme Court denied requests to hear two appeals brought forth from the O’Bannon vs. NCAA case, in which the Ninth Circuit found college athletics’ ruling institution was again guilty of violating the Sherman Antitrust Act. The case had a small chance of being heard by the eight justices initially, as both sides filed writs of certiorari in the lead-up.


With the appeals failing to garner the necessary four votes, the Supreme Court leaves in place the Ninth Circuit’s rulings on the O’Bannon case, that the NCAA can continue to endure antitrust scrutiny; that no constraints can be placed on football and men’s basketball players’ ability to receive tuition, books, and room and board fees from member schools; that a $5,000 payment to be issued to said players—a remedy established in a lower court—would be eliminated.

The Ninth Circuit ruling was favorable for both sides, but left a great deal to be desired for those hoping to see college athletes get their just due in this lifetime. The O’Bannon camp, while securing a win over the NCAA’s exploitation of player likeness in Electronic Art’s popular college football video game series and the institution’s ability to dictate how colleges provide tuition and housing for its athletes, wanted the remedy payments reinstated, per its petition. The Ninth Circuit also ruled future payments to athletes would have to be tied to the players’ educational experience—a bullshit diktat that lines up perfectly with faux-amateurism ideals the NCAA’s clutched onto for the past 30 years as its member programs have generated increasingly impressive revenue streams from television contracts, ticket and merchandise sales, and athletics-first donors.


According to its petition, the NCAA appealed in hopes of having the Supreme Court weigh in on the Ninth Circuit’s ruling that not compensating the athletes is a violation of the Sherman Antitrust Act—a ruling that runs contrary to the Supreme Court’s infamous ruling in the 1984 case, NCAA vs. Board of Regent, which found while the NCAA’s television contracts violated the Sherman Antitrust Act, its strict implementation of amateurism was fair game. The key line that has empowered the NCAA in the years since came from Judge John Paul Stevens, who offered the majority opinion on the landmark case:

The identification of this ‘product’ with an academic tradition differentiates college football from and makes it more popular than professional sports to which it might otherwise be comparable, such as, for example, minor league baseball. In order to preserve the character and quality of the ‘product,’ athletes must not be paid, must be required to attend class, and the like.

The NCAA was also left with a lawyer’s fee bill of $42.3 million from the Ninth Circuit ruling, which, had the Supreme Court taken on the case and reversed the antitrust finding, would have been erased. Instead, the NCAA will now be required to foot the bill for the O’Bannon side.

Jonathan S. Massey, the lead counsel for the respondents, did not respond immediately to a request for comment, but was quoted by the Daily Mail as being pleased with the Supreme Court’s decision to leave the NCAA open to further criticism.


“We look forward to continuing to challenge the NCAA’s anticompetitive rules,” Massey added.

The NCAA released a statement from chief legal counselor Donald Remy in reaction to the Supreme Court’s decision on its website Monday morning. Remy notes the NCAA was pleased with the continued defense of amateurism but made clear their disappointment with the justice’s decision to allow the Ninth Court’s anti-competitive stance to hold:



“The U.S. Supreme Court denied both the plaintiffs’ and NCAA’s request to clarify key issues of law affecting the NCAA and other similar organizations. In asking for the review, we hoped the court would take the opportunity to affirm its own 30-year precedent in the Board of Regents antitrust decision and support the appellate court’s now final endorsement of amateur college sports.

While we are disappointed with this decision not to review this case, we remain pleased that the Ninth Circuit agreed with us that amateurism is an essential component of college sports and that NCAA members should not be forced by the courts to provide benefits untethered to education, including providing any payments beyond the full cost of attendance.

We continue to believe, and many other appellate courts have agreed, that the NCAA membership agreements to advance college sports are not violations of the antitrust laws. We will continue to strongly advance that legal position in other litigation. Further, the Court’s determination to not hear the case will not deter our members from continuing to provide students with academic opportunities, safeguarding their health and well-being and creating fair policies centered on the student-athlete experience.”

The Supreme Court’s denial to hear the case now leaves the NCAA open to future legal action from antitrust groups hoping to institute some sort of cash payment related directly to the athlete’s athletic ability and labor.

Update (3:55 p.m.): Massey responded to our request to comment with the following statement:


“While we would have liked the Supreme Court’s review, we remain pleased that the Ninth Circuit unanimously affirmed the liability judgment of the District Court that the NCAA’s rules are an unlawful restraint of trade in violation of the antitrust laws and upheld a permanent injunction.”