O'Bannon v. NCAA: Who Owns a College Athlete's Likeness?

Timeline

1. Jul 2009O'Bannon files suit against the NCAA and the Collegiate Licensing Company.
2. 2011Basketball greats Oscar Robertson and Bill Russell join as plaintiffs among about 20 former athletes.
3. May 2014EA Sports and the Collegiate Licensing Company settle for $40 million.
4. Jun 9–27, 2014Bench trial before Judge Claudia Wilken.
5. Aug 8, 2014Wilken rules NCAA rules are an unreasonable restraint of trade; she allows full cost-of-attendance scholarships and up to $5,000 a year in trust.
6. Sep 2015The Ninth Circuit affirms the antitrust violation and cost-of-attendance remedy but strikes the $5,000 deferred payments.
7. Oct 3, 2016The Supreme Court declines to hear the case.

The ethical issues

• Ownership of identity: whether athletes should control and profit from their own likeness.
• Amateurism as a justification for restraints on compensation.
• The role of courts in reforming a private association's rules.
• Fairness to former athletes whose images had already been sold.
• Distinguishing education-related support from pay.

Stakeholders

Stakeholder	Interests & obligations
Former and current athletes	Control over and compensation for their identities.
NCAA and member schools	The amateur model, revenue from media and licensing, and regulatory control.
EA Sports and licensors	Access to realistic content and legal certainty.
Fans and consumers	Products and broadcasts featuring college athletes.
Courts	Applying antitrust law to a cherished institution.

The case

Ed O’Bannon was the Most Outstanding Player of the 1995 NCAA basketball tournament, which UCLA won. Years later, he learned that the EA Sports game NCAA Basketball 09 featured an unnamed UCLA power forward with O’Bannon’s height, weight, bald head, skin tone, No. 31 jersey and left-handed shot. O’Bannon had never consented or been paid.^[1][2]

In July 2009, he filed an antitrust class action against the NCAA and its licensing arm, the Collegiate Licensing Company. He argued that the NCAA’s rules prevented football and men’s basketball players from receiving any payment, beyond scholarships, for the use of their names, images and likenesses in video games, broadcasts and archival footage, and that the schools had in effect agreed not to compete for athletes on those terms. Oscar Robertson and Bill Russell were among about twenty former athletes who joined as plaintiffs.^[1]

Background

The case targeted a business that had grown quietly for years. EA Sports had published NCAA basketball and football games using recognizable player likenesses with no names. The EA settlement could pay as much as $4,000 to as many as 100,000 current and former athletes who had appeared in the games since 2003.^[1] Oscar Robertson, the Basketball Hall of Famer whose own earlier lawsuit had changed NBA free agency, joined the class action in January 2011.^[1]

The litigation ended the video games. NCAA Basketball 10, published in 2009, was the final game in that series. The NCAA ended its license with EA after NCAA Football 14, published in 2013, in a dispute over licensing rates.^[1]

The rules and governance

The claim was that NCAA rules were an unreasonable restraint of trade under the Sherman Act. Specifically, they barred football and Division I men’s basketball players from any compensation beyond scholarships for the use of their names, images and likenesses in video games, live telecasts, rebroadcasts and archival footage.^[1] Under the rule of reason, the court asked whether the NCAA’s justifications could be achieved by less restrictive means. Wilken found they could: by allowing full cost-of-attendance scholarships and limited deferred payments.^[1][4]

The NCAA’s appeal relied on the Supreme Court’s 1984 decision in NCAA v. Board of Regents of the University of Oklahoma, arguing that Wilken had not properly considered its language praising amateurism.^[1] The Ninth Circuit agreed that the rules were subject to antitrust law but accepted part of the NCAA’s argument when it struck down the $5,000 payments.^[1][5]

Settlement and trial

EA Sports and the Collegiate Licensing Company settled in 2014 for $40 million, to be shared among current and former athletes who had appeared in the games.^[1][3] The NCAA went to trial. It argued that amateurism was central to college sports’ appeal to consumers and that its rules promoted competitive balance and the integration of athletes into academic life.^[1]

On August 8, 2014, Judge Claudia Wilken ruled that the NCAA’s rules were an unreasonable restraint of trade under the Sherman Act. As the Ninth Circuit later summarized her findings, she found that without the rules schools would compete by offering recruits more, so the rules worked as a price-fixing agreement in which colleges collectively “agree to value [NILs] at zero.”^[7] She found no anticompetitive effect in the licensing markets themselves, because broadcasters and game makers would need every team’s rights. Of the NCAA’s four justifications, she accepted only amateurism and academic integration, and only in part. She rejected competitive balance and increased output, and called the NCAA’s definition of amateurism “malleable,” having changed over time in “significant and contradictory ways.”^[7] As remedies, she ruled that schools must be allowed to offer scholarships covering the full cost of attendance, and to place up to $5,000 per year of eligibility in trust for each athlete, payable after they left school.^[1][4]

Appeal

In September 2015, the Ninth Circuit agreed that the NCAA rules violated antitrust law and upheld the cost-of-attendance remedy. It struck down the $5,000 deferred payments, reasoning that cash untethered to educational expenses would erase the line between amateur and professional sport.^[1][5]

The panel called it “this momentous case” and noted that, as far as it knew, Wilken’s was the first federal decision to hold “any aspect of the NCAA’s amateurism rules” unlawful under antitrust law. The opinion first rejected the NCAA’s threshold defenses. Its compensation rules regulated commercial activity and were subject to the Sherman Act. The plaintiffs had standing because, absent the rules, video game makers would likely pay for their likenesses. And the rules were “not exempt from antitrust scrutiny” even if many were procompetitive.^[7] Applying the rule of reason, the panel held that the rules fixed “an aspect of the ‘price’ that recruits pay to attend college.”^[7] Raising scholarships to the cost of attendance, it noted, meant “a few thousand dollars at most schools.”^[7] On the $5,000 payments, the majority found “little evidence in the record.” It wrote that “the difference between offering student-athletes education-related compensation and offering them cash sums untethered to educational expenses is not minor; it is a quantum leap.” Once that line was crossed, it predicted, plaintiffs would push “until they have captured the full value of their NIL,” and the NCAA would move “to minor league status.”^[7] Chief Judge Sidney Thomas dissented on that point. He argued that the question was consumer demand, not amateurism in the abstract. The majority, he wrote, had cited no record evidence that $5,000 in deferred compensation would reduce demand, and had relied instead on a “self-evident fact.”^[7] The Supreme Court declined to hear the case in October 2016.^[1][6] The NCAA was ordered to pay plaintiffs’ fees and costs of more than $42 million.^[1]

Aftermath

O’Bannon did not create a market for athletes’ likenesses. But it established that NCAA compensation rules were subject to antitrust review and must be justified by evidence. It led directly to further suits, including the Alston case on education-related benefits, which the Supreme Court decided unanimously in 2021. In July 2021, under pressure from new state laws, the NCAA allowed athletes to profit from their names, images and likenesses.^[1] EA Sports returned to college football in 2024 with a game that licensed and paid players.^[1]

The core dilemma

College sports generate billions of dollars, much of it from the identities and performances of athletes. Is it fair to bar those athletes from sharing in the value of their own image, in the name of amateurism? Or is a distinctly amateur model worth preserving, even if it limits athletes’ earnings?

Competing values

• Autonomy vs. institutional tradition: control over one’s identity against a long-standing model of amateur sport.
• Fair compensation vs. educational mission: pay for value created against keeping athletes students first.
• Competition law vs. association rules: antitrust principles against the NCAA’s claim to define its product.
• Incremental vs. sweeping reform: limited court remedies against wholesale change.

Strongest arguments

For O’Bannon: using a person’s likeness commercially without consent or payment is wrong in any other context. A cartel of schools agreeing not to pay is exactly what antitrust law forbids, and amateurism had become a label that protected revenue.

For the NCAA’s position: college sports are distinct because athletes are students, and consumer demand reflects that. Allowing payments could make recruiting a bidding war, harm smaller programs and Olympic sports, and change the relationship between athletes and their schools.

Applying the frameworks

Rights

A rights lens begins with a person’s control over their own identity. O’Bannon’s likeness was used commercially without consent or payment, which most people would see as wrong in any other setting. The question is whether membership in college sport can justify giving up that right.

Justice

A justice lens asks how the value created by college sport should be distributed. Schools, conferences, broadcasters and game makers profited while athletes received scholarships. The ruling’s cost-of-attendance remedy and the rejected $5,000 payments show the courts trying to balance fairness against the NCAA’s model.

Kantian (duty)

A Kantian lens asks whether using athletes’ identities for profit without consent treats them as mere means. It also questions whether the amateurism justification, used to deny compensation while others profit, could be accepted by the athletes as a rule they would freely endorse.

Walk it through: the Simple Decision Model

1. Spot the issue. You are an NCAA executive in 2009 after O’Bannon files suit. The stakeholders include current and former athletes, member schools, EA Sports, broadcasters and fans. The codes in play are NCAA amateurism bylaws, licensing contracts and antitrust law.
2. Gather facts. What do the licensing contracts allow? Do the games use identifiable athletes? What do the athletes receive?
3. Test options. Options: (a) defend the rules fully in court; (b) settle and change licensing practices; (c) propose a system for paying athletes for their likeness. Weigh legal risk and the amateur model against fairness to athletes.
4. Check codes and law. Would you accept this use of your own image without consent? Are you defending a principle or revenue?
5. Decide and document. Record your analysis and decision.
6. Communicate and follow up. Communicate openly with member schools and athletes about the risks and the options for reform.

What’s settled and what’s contested

• Settled: NCAA compensation rules are subject to antitrust law; the cost-of-attendance remedy; the $40 million EA settlement.
• Contested: whether any amateurism-based limits can be justified; whether the courts’ incremental approach was right.

Why this case matters

O’Bannon marks the legal turning point for college athletes’ economic rights. It is a foundational case for thinking about consent, identity and commercial value in sports.

Key terms

Myth of amateurism

The critique that athletes generate large revenues without the pay or labor protections other workers have. Tested by justice, consent and dignity.

Agency

An athlete’s ability to make decisions and act independently about their body, career and voice.

Consent and autonomy

Whether people have agreed freely and with full information, and whether their right to make their own choices is respected.

Humanity formula

A Kantian check: treat people as ends in themselves, never merely as a means to someone else’s goal.

Definitions from the Ethics Cases glossary.

Discussion questions

1. O'Bannon was used in a game without permission or pay. Is the wrong primarily about consent, money, or both?
2. The Ninth Circuit accepted cost-of-attendance scholarships but rejected $5,000 deferred payments as pay. Is there a principled line between the two?
3. Is amateurism a value worth protecting? If so, what does it require?
4. Should former athletes be compensated for past uses of their likeness, and who should pay?
5. What role should courts play in reforming college sports versus Congress or the NCAA itself?

Sources

1. O'Bannon v. NCAA — Wikipedia
2. Former Bruin O'Bannon sues NCAA — ESPN
3. Players, game makers settle for $40M — ESPN
4. N.C.A.A. Must Allow Colleges to Pay Athletes, Judge Rules — The New York Times
5. N.C.A.A. Appeal of Ruling in O'Bannon Case Is Heard — The New York Times
6. O'Bannon plaintiffs ask Supreme Court to take case — USA Today
7. O'Bannon v. NCAA, No. 14-16601 (9th Cir. Sept. 30, 2015), opinion — U.S. Court of Appeals for the Ninth Circuit