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The NCAA Continues the Fight in Court in Antitrust Disputes – House v. NCAA and Fontenot v. NCAA



The NCAA is no stranger to antitrust litigation. For thirty years, the NCAA was wildly successful in protecting the amateur product from dozens of attacks brought by athletes, coaches, and constituents under the Sherman Act. However, the tide started to turn in 2006 with the filing of White v. NCAA. In White v. NCAA, the athletes challenged the artificial cap on the NCAA’s grant-in-aid that prohibited institutions from providing an athletics scholarship including the amounts that constitute full cost of attendance. Rather than push this matter to trial, in 2008, the NCAA settled the dispute by creating a fund in excess of $200 million to be accessed by athletes seeking to further their education.


Next, O’Bannon v. NCAA was filed in federal court in the Northern District of California challenging the use of the athletes’ names, images, and likenesses in commercial products such as videogames and broadcasts. Although the damages case was dismissed, the case pushed forward to a bench trial seeking injunctive relief. The athletes were ultimately successful in obtaining injunctive relief, but no monetary damages were awarded. The Ninth Circuit affirmed the decision of the District Court, in part, by indicating that the NCAA’s rules prohibiting compensation violated antitrust laws, but noted any benefits provided to athletes must be “tethered to education.”


On the heels of O’Bannon v. NCAA, the athletes filed Alston v. NCAA, which sought to extend the line of what was considered “tethered to education”. Again, the case was filed in federal court in the Northern District of California. The Athletes sought the ability, for example, to obtain scholarships that extended beyond their athletics eligibility (i.e., law school, medical school, culinary school) and to obtain items that enhance the educational experience such as computers, projectors, calculators, and other items. This matter went to the United States Supreme Court and was a 9-0 victory for the athletes.


Following Alston v. NCAA was House v. NCAA, which challenges the limitations placed on compensation for use of athletes’ names, images, and likenesses for remuneration and seeks damages for the NCAA’s prior prohibition. House v. NCAA was also filed in federal court in the Northern District of California. On November 3, 2023, the District Court certified the following three classes:


Football and Men’s Basketball: All current and former colleges athletes who have received full Grant-in-Aid (GIA) scholarships and compete on, or competed on, a Division I men’s basketball team or an FBS football team, at a college or university that is a members of one of the Power Five Conferences (including Notre Dame), at any time between June 15, 2016 and the date of the class certification order in this matter. This Class excludes the officers and directors, and employees of Defendants. This Class also excludes all judicial officers presiding over this action and their immediate family members and staff, and any juror assigned to this action.


Women’s Basketball Class: All current and former college athletes who have received full GIA scholarships and compete on, or competed on, a Division I women’s basketball team, at a college or university that is a member of one of the Power Five Conferences (including Notre Dame), at any time between June 15, 2016 and the date of the class certification order in this matter. This Class excludes the officers, directors, and employees of Defendants. This Class also excludes all judicial officers presiding over this action and their immediate family members and staff, and any juror assigned to this action.


Additional Sports Class: Excluding members of the Football and Men’s Basketball Class and members of the Women’s Basketball Class, all current or former college athletes who competed on a Division I athletic team prior to July 1, 2021 and who received compensation while a Division I college athlete for use of their name, image, and likeness between July 1, 2021 and the date of the class certification order in this matter and who competed in the same Division I sport prior to July 1, 2021. This Class excludes the officers, directors, and employees of Defendants. This Class also excludes all judicial officers presiding over this action and their immediate family members and staff, and any juror assigned to this action.


On November 20, 2023, yet another antitrust action was filed against the NCAA and the Power 5 Conferences. In Fontenot v. NCAA, the proposed class of athletes makes a direct challenge seeking compensation and seeks to allow “revenue to be allocated by the free market.” Unlike the other cases referenced above, this dispute was brought in federal court in the District of Colorado. Short of a settlement, this dispute clearly points to another five years of fighting in federal court and has the potential for major changes to college athletes.


If you have any questions, contact Christian Dennie at cdennie@denniefirm.com.


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