By Courtney Hirsekorn
Fairfield & Woods
When thinking about the sports law issues that may come up in 2017, there are many possible stories to cover: ongoing concussion-related litigation, Major League Baseball holding the St. Louis Cardinals vicariously liable for conduct of an employee who accessed the Houston Astros’ proprietary information, Aaron Hernandez’s double murder trial, immigration laws’ impact on sports leagues and Los Angeles’s Olympic bid, transgender athletes’ ability to participate in competition, and NHL expansion into Las Vegas to name a few.
Three other issues are particularly interesting and important this year: college athletes’ continued efforts for compensation, the collective bargaining agreement between the U.S. Soccer Federation and the United States Women’s National Team and the possible merger between FanDuel and DraftKings.
COLLEGE ATHLETES’ CONTINUED EFFORTS FOR COMPENSATION
At the end of 2016, the U.S. Supreme Court rejected certiorari in O’Bannon v. NCAA leaving intact the 9th Circuit’s September 2015 rulings that the NCAA’s rules are subject to antitrust scrutiny and that the NCAA’s rules limiting compensation to tuition, fees, room, board and books instead of the full cost of attendance violate the Sherman Antitrust Act; and that the NCAA can prohibit schools from paying “cash sums untethered to educational expenses,” such as compensation for the use of the athletes’ names, images and likeness, because this serves the procompetitve purposes of integrating academics with athletics and promoting amateurism.
O’Bannon was the prominent case, but multiple lawsuits still pending relating to college athlete compensation will now move into the spotlight. For example, Jenkins v. NCAA, a case before the same district court judge that ruled on O’Bannon, alleges that the NCAA and the five major conferences made “agreements to price-fix players’ compensation, and to boycott any institutions or players who refuse to comply with the price fixing agreement” in violation of the Sherman Antitrust Act. The plaintiffs seek to ultimately allow colleges to compete for recruits by offering them more than the athletic scholarships.