A landmark ruling that opened the door for college football and basketball players to be paid went against all previous court rulings, including a 1984 U.S. Supreme Court decision, an attorney for the NCAA told a federal appeals court Tuesday.
Lawyer Seth Waxman told a three-judge panel of the 9th U.S. Circuit Court of Appeals that courts never previously held that rules meant to protect the amateur status of student athletes violated antitrust law.
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He cited the 1984 Supreme Court ruling that stated athletes must not be paid in order to preserve the character and quality of college athletics.
Plaintiffs' attorney Michael Hausfeld countered that the Supreme Court comment was made in passing and was not integral to the outcome of that case.
The ruling "does not establish an absolute, abstract, blanket, mechanical immunity from antitrust accountability for any NCAA rule of practice," Hausfeld said.
He also said the NCAA has not consistently defined what it means to be an amateur athlete, calling into question its contention that amateur athletes must not be paid to play their sports.
The NCAA is challenging U.S. District Judge Claudia Wilken's decision last year to allow players in the top division of college football and in Division I men's basketball to be paid at least $5,000 a year for rights to their names, images and likenesses. The money would be put in a trust fund and given to them when they leave school.
The NCAA was accused of violating antitrust laws by conspiring to block the athletes from getting a share of revenues generated by the use of their images.
The decision came in a lawsuit filed by UCLA basketball star Ed O'Bannon and 19 others. It is scheduled to take effect in July 2016. O'Bannon was in court on Tuesday to hear the arguments in the appeal.
Judge Jay Bybee said Wilken's $5,000 cap appeared to have crossed the line restricting college athletes from being paid to play.
Chief Judge Sidney Thomas — who noted the court was hearing the case as the NCAA March Madness basketball tournament was beginning — questioned how the $5,000 cap differed from the NCAA's policy of allowing scholarships covering an athlete's costs of attending school.
"This is a situation in which a judge had said the athletes must be allowed to share in the specific commercial revenue stream that derives from their participation in sports," Waxman responded. "And that is not what amateurs do."
The 9th Circuit is not under any set deadline to rule. The NCAA has previously said it would take the issue all the way to the U.S. Supreme Court.