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NCAA Athlete Pay Injunction to Take Effect Before SCOTUS Appeal

Aug. 5, 2020, 2:35 PM

The National Collegiate Athletic Association failed to convince the Ninth Circuit to suspend its ruling striking down caps on education-related compensation for college athletes while it appeals the case to the U.S. Supreme Court.

In a one-sentence order Tuesday, the U.S. Court of Appeals for a Ninth Circuit denied the motion for a stay pending the Supreme Court petition that the NCAA and its 11 member conferences say they’ll file by the mid-October deadline, which was extended because of the Covid-19 pandemic.

Although the order didn’t contain any reasoning, the appellate panel implicitly rejected the association’s argument that the injunction would irreparably harm college sports if it takes effect immediately because its effects will be difficult, costly, or impossible to reverse.

The rulings in question—by the Ninth Circuit and a federal judge in Oakland, Calif.—preserved the ban on outright pay for athletes but invalidated limits on education-related compensation.

They reflected a middle ground between the athletes’ bid for a free labor market and the NCAA’s insistence that restrictions are the only way to preserve the “amateurism” that differentiates collegiate from professional sports.

In their petition seeking to pause the injunction, the NCAA and its conferences previewed the case they plan to take to the high court.

They focused on the sorts of slippery slope arguments about the end of college sports that the two lower courts rejected. But the petition also raised more practical concerns, saying the line between education-related expenses and others—the core distinction drawn by the injunction—is a fuzzy one.

In light of the uncertainty around what counts as an education-related expense, the rulings “will almost certainly engender perpetual litigation,” the NCAA said, citing recent lawsuits like a proposed class action filed in June over athlete likenesses and social media brands.

Moreover, the Supreme Court is likely to take the case, both because the issues it raises are significant and because there’s a circuit split between the Ninth Circuit and other appeals courts, the petition said.

Chief Judge Sidney R. Thomas and Judges Ronald M. Gould and Milan D. Smith Jr. sat on the Ninth Circuit panel.

The NCAA is represented by Wilmer Cutler Pickering Hale & Dorr LLP. The plaintiffs are represented by Hagens Berman Sobol Shapiro LLP, Winston & Strawn LLP, Pearson, Simon & Warshaw LLP, and Pritzker Levine LLP.

The case is In re NCAA Athletic Grant-in-Aid Cap Antitrust Litig., 9th Cir., No. 19-15566, 8/4/20.

To contact the reporter on this story: Mike Leonard in Washington at mleonard@bloomberglaw.com

To contact the editor responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com

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