In a private conference on Monday, the Supreme Court started considerations about two big cases for the sports world: the struggle between former college basketball star Ed O’Bannon and the NCAA, and the Washington Redskins’ trademark dispute.
Each September, the Supreme Court justices reconvene in private to consider a huge number of new cases for its new term. Known as the “long conference,” the meeting is important, and not without some controversy. The justices will somehow evaluate about 2,000 petitions and other motions, and they accept just a few for the term that starts next week.
On the long conference list were two cases that have made headlines for several years. In NCAA v. O’Bannon or O’Bannon v. NCAA (there are two petitions), the Court will consider appeals of a lower court ruling about the National Collegiate Athletic Association’s definition of amateur athletes and if student-athletes can ask for compensation from video game profits.
And in Pro Football, Inc., v. Blackhorse, the Court could decide if the Washington National Football League team can keep the exclusive trademark for its “Washington Redskins” football franchise.
First, in the O’Bannon case, the NCAA filed its appeal with the Court in July 2016. It wants the Supreme Court to answer two questions. It wants the Court to overturn a Ninth Circuit ruling that the NCAA violated the Sherman Anti-Trust Act when it defined “the eligibility of participants” in NCAA-sponsored athletic contests.” The NCAA also wants to know if the First Amendment protects it from compensation claims from student-athletes who believe their likeness was used in an “expressive work” such as a video game.
The NCAA claims the Ninth Circuit misapplied precedents from a 1984 Supreme Court decision, NCAA v. Board of Regents of the University of Oklahoma, when it ruled against the NCAA in the O’Bannon case. Part of the Board of Regents decision, it says, acknowledged that “in 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 O’Bannon group's lawyers want the Supreme Court to confirm the Ninth Circuit was correct “in refusing to confer categorical anti-trust immunity on the NCAA for what in any other industry would be an unreasonable restraint of trade.”
In the Pro Football, Inc. case, a federal district judge ruled in July 2015 against the Redskins in the trademark dispute over their controversial nickname, saying the United States Patent and Trademark Office had the ability to cancel the federal registration of six Washington team trademarks because the moniker was “disparaging of Native Americans.”
The team’s lawyers filed their appeal just days after the federal government filed its own appeal in a case called Lee v. Tam. The U.S. Court of Appeals for the Federal Circuit found in Lee v. Tam that a lower court ruling that barred a rock band from trademarking the name "The Slants" was invalid under the First Amendment because the decision imposed impermissible content-based and viewpoint-discriminatory burdens on protected speech.
The ruling didn’t immediately affect the Redskins decision, which was in the Fourth Circuit. The lawyers for Pro Football Inc., feel the Supreme Court could do a better job if it added their case to the Lee v. Tam case -- if the Court accepts it. Pro Football Inc. also wants its appeal to bypass the Fourth Circuit and to be consolidated with the Lee v. Tam case.
The federal government in June 2016 asked the Supreme Court to not accept Pro Football Inc.’s appeal. The lawyers for Amanda Nighthorse only want to the Court to accept the case if it just rules on a First Amendment question that would allow the registration of “racist and ethnic slurs” as part of its trademarks program.
The earliest the Supreme Court could act on these two cases is later this week, but the decision to accept (or deny) appeals could also come in the next few weeks.
Scott Bomboy is editor in chief of the National Constitution Center.
