Still No NCAA Pay for Play–9th Circuit Denies O’Bannon v. NCAA Rehearing En Banc

On December 16, 2015, the Ninth Circuit Court of Appeals decided that it would not rehear its earlier decision in a high-profile case on payments that can be made to student-athletes. Nearly three months earlier, a panel of the Ninth Circuit had upheld a lower court’s ruling that the amateurism rules of the National Collegiate Athletic Association (NCAA) violated federal antitrust laws under a rule-of-reason analysis. At that time, the Ninth Circuit also overturned the part of the district court’s order that had directed the NCAA to allow its member institutions to pay male Division I football and basketball players up to $5,000 per year in deferred compensation “for the licensing or use of . . . [their] names, images, and likenesses” (NIL). O’Bannon v. National Collegiate Athletic Association, Ninth Circuit Court of Appeals, Nos. 14-16601 and 14-17068 (September 30, 2015).

The plaintiffs petitioned on October 14, 2015, for rehearing en banc, and the court directed the NCAA to respond, which the NCAA did on November 16, 2015.

On December 16, 2015, the petition for rehearing en banc was denied. Chief Judge Thomas (who had dissented from the panel’s opinion regarding payments for NIL) voted to grant the appellees’ petition for rehearing en banc, but Judge Bybee voted to deny the petition, Judge Quist recommended denying the petition, and no judge requested a vote by the full court on whether to rehear the matter en banc.