In an earlier case, known as O’Bannon, the appellate court agreed with part of a Wilken finding at the district court level that the N.C.A.A. ban on compensating athletes for the commercial use of their names, images and likenesses in things like video games was an antitrust violation. But the appellate judges overturned her proposal that athletes be able to receive up to $5,000 annually in exchange. The Ninth Circuit’s reasoning was that such payments were not “tethered to education.”
You can draw a direct line between that phrase, from 2015, and Wilken’s 2019 ruling in this case. That is how she Solomonically decided that the N.C.A.A. may restrict payments as long as they are noneducational.
“Future plaintiffs, if they challenge N.C.A.A. rules, will look for a jurisdiction outside of the Ninth Circuit,” Feldman said. The Ninth Circuit, after all, has now made it very clear it will defer to the N.C.A.A.
Another venue could rule in a more plaintiff-friendly direction. Kessler, the prominent sports lawyer, may now be able to push forward with a nearly identical case in Federal District Court in New Jersey.
Either way, the future of college athletics is now out of the hands of Wilken, who for nearly a decade has loomed over it.
Her decision last Friday may be a result of her understanding her power and its limits. Numerous observers expected a more plaintiff-friendly ruling based on the questions she asked during trial.
Yet here we are, with little change.
“This finding did not surprise me,” said Gerald Gurney, a former head of the reform-minded Drake Group.
“Even though she may have wanted to completely agree with Kessler’s arguments,” Gurney added, “she did have some constraints.”