Federal Circuit Strikes Down Federal Ban on Disparaging Marks as Unconstitutional

In a landmark ruling that departs from decades-old precedent, on December 22, 2015, the U.S. Court of Appeals for the Federal Circuit held that the Lanham Act’s prohibition of “disparaging marks” violates the First Amendment’s guarantee of free speech. In re Simon Shiao Tam, Case No. 2014-1203 (Fed. Cir. Dec. 22, 2015). The decision is sure to be discussed by the Court of Appeals for the Fourth Circuit next year when it decides whether it was lawful for the United States Patent and Trademark Office (USPTO) to cancel registration of the marks owned by the NFL’s Washington Redskins, on the basis that the REDSKINS mark is disparaging to Native Americans.

The decision by the Federal Circuit involved the USPTO’s denial of trademark registration to an “Asian-American dance-rock band,” for their band name, THE SLANTS, a name the band intended to “reclaim” and “take ownership” of Asian stereotypes. Reasoning that the proposed mark was “likely disparaging to ‘persons of Asian descent,’” the USPTO denied federal trademark registration under the disparagement provision found in § 2(a) of the Lanham Act. A panel of three Federal Circuit judges affirmed, citing Circuit precedent that had rejected the constitutional argument on the grounds that the USPTO’s “refusal to register a mark under § 2(a) does not bar the applicant from using the mark, and therefore does not implicate the First Amendment.”

Sitting en banc, a divided Federal Circuit vacated the panel’s holding, overruled its prior precedent, and invalidated the disparagement provision, holding that the restriction cannot survive any of the levels of scrutiny applied to different types of restrictions on private speech. Starting with the premise that § 2(a) is a content and viewpoint-discriminatory regulation of speech, the Federal Circuit rejected the government’s arguments why the provision should not be subjected to strict scrutiny, an exacting standard that the government conceded the provision could not survive.

Citing the Federal Circuit’s prior precedent, the government contended that strict scrutiny does not apply because the Lanham Act does not prohibit expressive speech, but rather regulates commercial speech since the putative registrant is “free to name his band as he wishes and use this name in commerce.” Rebuffing this argument, the Federal Circuit found that federal trademark registration “bestows truly significant and financially valuable benefits upon markholders,” such as the right of exclusive nationwide use and the ability to recover treble damages for willful infringement, the denial of which creates a “serious disincentive to adopt a mark which the government may deem offensive or disparaging,” thus chilling private speech.

If trademark registration constitutes regulation of commercial speech, the Court held, the restriction would then be subjected to intermediate scrutiny, and even under that less exacting standard, the disparagement provision is still unconstitutional because the only interest the government has in prohibiting disparaging trademarks is its “disapproval of the message,” an interest that is not “legitimate” for First Amendment purposes.

Going forward, In re Tam is likely to have an immediate effect on other Circuits’ decisions when faced with similar issues, such as the Fourth Circuit’s future decision in the REDSKINS case. Moreover, the Federal Circuit hinted in a footnote that the decision may affect the other provisions of the Lanham Act that regulate expressive speech, such as the provision that permits the government to deny registration of a mark determined to be “immoral” or “scandalous.” The Government will almost certainly ask the Supreme Court to review the decision, but until the Supreme Court takes up the case, the USPTO will be barred from rejecting marks determined to be “disparaging.”

For more information on the Lanham Act or implications of In re Simon Shiao Tam, please contact Kathleen Barnett Einhorn, Esq., Director of the firm’s Complex Commercial Litigation Group, at keinhorn@genovaburns.com.

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Supreme Court Reiterates the FAA’s Preemptive Authority

On Monday, the United States Supreme Court in DIRECTV, Inc. v. Imburgia, 577 U.S. ___, No. 14-462, slip op. at 1 (Dec. 14, 2015), doubled down on its previous holdings that the Federal Arbitration Act (“FAA”) preempts state law judicial interpretations that do not place arbitration contracts “on an equal footing with all other contracts.” Imburgia is the Supreme Court’s latest rebuke of state courts that are hostile to arbitration clauses and class-arbitration waivers, and signals to lower courts that they may not utilize state contract law principles to interpret arbitration provisions so as to end-run the mandates of the FAA.

In 2005, the California Court of Appeal held in Discover Bank v. Superior Court that class-arbitration waivers were unenforceable in “consumer contract[s] of adhesion” that “predictably involve[d] small amount of damages” and met certain other criteria (known as the Discover Bank rule). In 2011, the Supreme Court decided AT&T Mobility LLC v. Concepcion, which held that the FAA preempts state law that bars enforcement of arbitration agreements if such agreements do not permit parties to utilize class-action procedures in arbitration or in court, thus invalidating the Discover Bank rule. The Supreme Court found that the Discover Bank rule stood as an “obstacle to the accomplishment and execution of the full purposes and objectives” of the FAA.

Compounding on its holding in Concepcion, the Supreme Court in Imburgia declared that Section 2 of the FAA preempts state law interpretation of a contract’s arbitration provision based on a rule that the state’s courts had applied only in the arbitration context, concluding that such a ruling “does not rest ‘upon such grounds as exist . . . for the revocation of any contract.’”

In Imburgia, Petitioner DIRECTV, Inc. entered into a service agreement with customers containing an arbitration provision governed by the FAA that provided for a class-arbitration waiver reading: “if the ‘law of your state’ makes the waiver of class arbitration unenforceable, then the entire arbitration provision ‘is unenforceable.’” Following a class action brought by Respondents in California state court, DIRECTV moved to compel arbitration, which was denied by the trial court. The California Court of Appeal affirmed, holding that the “law of your state” language in the arbitration provision meant that that the parties had agreed that California’s Discover Bank rule would govern, notwithstanding the holding of Concepcion.

The Supreme Court, by a 6-3 vote, reversed and remanded, finding that because such an interpretation of the arbitration clause was “unique, restricted to that field,” and because “California courts would not interpret contracts other than arbitration contracts the same way,” the interpretation was impermissible as preempted by the FAA. Going forward, the Supreme Court has made explicit that arbitration agreements, and specifically class-arbitration waivers, should be enforced by state courts—even in the face of a state’s former invalidation of such waivers. Imburgia stands as the latest in a series of pro-arbitration rulings under Chief Justice Roberts, and instructs states that its courts may not use novel interpretations of state contract law to intrude on otherwise valid arbitration agreements.

For more information on the FAA or implications of DIRECTV, Inc. v. Imburgia, please contact Kathleen Barnett Einhorn, Esq., Director of the firm’s Complex Commercial Litigation Group, at keinhorn@genovaburns.com.

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Mandatory Arbitration Undercutting Consumer Rights?

New Jersey businesses may face increased litigation if proposed legislation to bar mandatory arbitration clauses in consumer contracts is made law. The proposed bill – recommended for passage by the Assembly Consumer Affairs Committee on February 5 – stems from the increasing frequency with which contracts contain provisions that make it difficult or impossible for consumers to pursue remedies for various claims such as misrepresentations, deception, fraud, negligence or breach of contract. This legislation would change the current law in New Jersey – the Truth in Consumer Contract, Warranty and Notice Act – to prohibit companies and businesses from requiring consumers to sign these “take it or leave it contracts” which waive or limit their rights to seek assistance of the courts, and instead require claims arising from these contracts to be resolved through arbitration.

If passed, consumers would be entitled to pursue their claims under the Consumer Fraud Act, the Lemon Law or any other federal or state consumer protection law in court, as well as have the right to bring a complaint within the six-year statute of limitations. In a further effort to protect consumers’ rights, an individual agreeing to waive of any of these rights would only be permitted to do so upon the advice of counsel. In addition, any contract containing a provision requiring a consumer to waive any legal rights – in violation of the new law – could be declared null and void, and entitle consumers to a $100 fee, plus damages and counsel fees.

A number of business groups, including the New Jersey Chamber of Commerce and the New Jersey Business and Industry Association, are opposing the bill, claiming that it runs afoul of the Federal Arbitration Act which encourages arbitration as a valuable litigation tool. However, supporters of the proposed legislation believe the “troubling trend” of companies’ required arbitration clauses in their standard contracts only serves to support companies at the cost of consumers. The proposed bill will make its way to the New Jersey Assembly next for approval and if received, will go before the Senate. Until then, businesses dealing with the public can rest assured that the preferred method of arbitration remains king. However, if the bill becomes law, companies will have to analyze any arbitration language in their consumer contracts.

For more information, please contact Kathleen Barnett Einhorn, Director of the Complex Commercial Litigation Practice Group of Genova Burns, at KEinhorn@genovaburns.com.

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Public’s Interest in Records of Police Shooting Trumps OPRA’s Ongoing Investigation Exception

The public’s right to access government documents garnered additional support in New Jersey last week when a state trial court ruled that law enforcement records related to the police shooting of a black man who allegedly rammed officers with his vehicle must be immediately released in unredacted form to the public.

The Open Public Records Act, N.J.S.A. 47:1A-1 et seq. (“OPRA”), generally allows members of the public to inspect government records upon request. However, there are many specific categories of documents to which the government does not have to grant public access. These categories fall outside of OPRA’s definition of the term “government records,” and include records pertaining to an ongoing investigation by a public agency if disclosure of the records is “detrimental to the public interest.”

The records at issue here concern the fatal shooting of a black, 23-year-old Newark resident, who was shot by police when he allegedly struck a police car with his SUV after police had surrounded his vehicle to conclude a four-minute police pursuit. The Attorney General’s Office initiated an investigation into the shooting that day, and issued a press release. Within days of the shooting, North Jersey Media Group (“NJMG”) filed OPRA requests with the New Jersey State Police, the Bergen County Police, and the local police departments of Lyndhurst, North Arlington, and Rutherford, seeking records such as use-of-force reports, arrest reports, and various audio and video recordings. The police departments, citing the Attorney General’s investigation among other reasons, either refused to produce the records or produced redacted records after a delay.

Ruling on a complaint filed by NJMG seeking release of the records under OPRA and the common law, the court held, among other things, that the police departments’ refusal to produce the records at issue disregarded the statutorily-defined duties and public policy of OPRA.

Notably, the court made clear that the ongoing-investigation exemption under OPRA, which requires that disclosure be detrimental to the public interest, did not apply in light of the heightened need for public access to information related to police interaction with the public after highly publicized incidents in Ferguson (MO), Staten Island, and Brooklyn. Additionally the court ruled that the police departments had a common law obligation to disclose the records, and that the departments had waived the right to produce redacted records by failing to seek judicial review to determine whether they could withhold or redact the records in the first instance.

For more information on OPRA, please contact Kathleen Barnett Einhorn, Director of the Complex Commercial Litigation Practice Group, at KEinhorn@genovaburns.com.

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New Jersey’s Proposed Ridesharing Insurance Requirements May Simplify Coverage Litigation

In the midst of price wars and resistance from municipalities with a strong traditional taxi presence, so-called “ridesharing” companies—such as Uber and Lyft—must now navigate the initial legislative steps towards regulation in the Garden State.  On December 11, 2014, the New Jersey State Assembly’s Transportation and Independent Authorities Committee combined seven proposed bills, which tackled issues ranging from insurance requirements to drug testing for drivers, in a move lawmakers believe will ultimately benefit the passenger-consumers of these ridesharing services.  Though the bill still requires a vote by the full Assembly, as well as passage by the Senate and the signature of the Governor, most involved believe that some version of the legislation will eventually be enacted due to the growing calls for regulation of this burgeoning industry.

Aspects of the bill as currently drafted will reduce the complexity of future insurance litigation in the event of injuries to passengers.  Currently, ridesharing companies’ insurance structure mandates that its drivers, who are independent contractors, use their personal automobile insurance as “primary insurance” in such an occurrence.  Personal automobile insurance policies, however, will likely not provide coverage in a commercial setting.  The inherent contradiction between company requirements that the driver’s insurance provide the first line of coverage, and those policies specifically excluding recovery, has the possibility to create endless litigation, leaving the injured passenger with the burdens caused by the coverage delay.  The proposed legislation will provide clarity in such a scenario by mandating that ridesharing companies maintain a commercial insurance policy which would provide coverage from the moment a passenger is picked up until the moment they are dropped at their destination.

Of particular interest as this bill develops towards its final version is how commercial vehicles rendering services on behalf of ridesharing companies may be impacted.  These drivers and companies carry commercial automobile insurance, and are able to provide the primary coverage requested by ridesharing companies.  Whether some commercial drivers should re-evaluate their insurance coverage or if ridesharing companies should re-evaluate commercial vehicles place in their New Jersey business model will depend on the bill’s final language.

Consumers, independent contractors rendering services for ridesharing companies, and commercial taxi and limousine services should all monitor this legislation closely as it is debated and develops into law.

For more information regarding the Complex Business Litigation Program, please contact Kathleen Barnett Einhorn, Director of the Complex Commercial Litigation Practice Group, at KEinhorn@genovaburns.com.

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Recent Supreme Court Decision Expands Freedom of Speech Rights for Those in Common-Interest-Communities

The New Jersey Supreme Court’s December 3, 2014 decision in Dublirer v. 2000 Linwood Avenue Owners, Inc., et al., extended the free speech rights of those living within private common-interest communities relating to political speech and the right to distribute political materials therein.

In Dublirer, the Court addressed an action filed by a resident in a high-rise private cooperative apartment building (the “Co-op”) against the Co-op’s board of directors (the “Board”) who prevented the resident from distributing leaflets under his neighbors’ doors criticizing the Co-op’s governance and promoting his own candidacy for the Board. The Board’s rule banned the distribution of all written materials “anywhere upon the premises without written authorization of the Board of Directors.”

The Court noted that an essential element of living within a co-op community is the residents’ agreement to be bound by the co-op’s by-laws and rules. However, while the Board’s stated purpose for barring the distribution of such written materials was “to preserve the residents’ quiet enjoyment of their apartment and to cut down on litter pollution,” the Court found that the residents’ rights in speaking out about the governance of their community outweighed the “minimal intrusion [of] when a leaflet is placed under a neighbor’s apartment door.” The residents of the Co-op were not outsiders, and thus had both property and free speech rights within the Co-op. The Court developed a test for such restrictions, holding that courts “should focus on the purpose of the expressional activity undertaken in relation to the property’s use, and should also consider the general balancing of expressional rights and private property rights.”

The Dublirer Court found that the resident’s leaflets were akin to political speech, thus affording it the highest Constitutional protection. The Court took into account the potentially intrusive nature of the resident’s leaflets, noting that here, the resident “did not seek approval to use a bullhorn or a loudspeaker, or to erect a large sign in the lobby,” and that “residents could simply ignore or throw away any literature placed under their doors.” In considering the reasonableness of the Board’s restriction, the Court found no “convenient, feasible, and alternative means” for engaging in the same speech, finding that the resident had sought “the most direct and least expensive way possible,” and that there were not substantially similar alternatives for communicating the same message to his neighbors.

The Court held that “[s]peech about matters of public interest, and about the qualifications of people who hold positions of trust, lies at the heart of our societal values,” and thus is entitled to protection whether or not that speech involves those who hold positions of trust within private common-interest communities.

Similar common-interest communities, such as condominium associations, should be aware of the Dublirer holding and potential claims by residents against their boards. The Court’s characterization of certain types of resident speech as protected political speech requires particular focus, as the Court stated that such should be afforded the greatest protection. However, the Court did not find that a board of directors in common-interest communities could never impose any speech restrictions, noting that the Board could have adopted “reasonable time, place, and manner restrictions to serve the community’s interest.” Such restrictions, however, must be designed to promote the quiet enjoyment of the residents of the community, “without unreasonably interfering with free speech rights.” Thus, in designing by-laws and house rules related to speech, boards must take into account the practical effect of any such proposed limitations on speech and the effect it would have on the residents, paying particular attention to the availability for substantially similar (and cost effective) mechanisms for the residents to accomplish a similar result.

For more information regarding the firm’s Complex Business Litigation Program, please contact Kathleen Barnett Einhorn, Director of the Complex Commercial Litigation Practice Group, at keinhorn@genovaburns.com.

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New Jersey Supreme Court Approves Complex Business Litigation Program

The State Judiciary has recently announced the commencement of a Complex Business Litigation Program, which will begin accepting cases January 1, 2015. The new program will further the Judiciary’s goals of streamlining complex business, commercial, and construction cases and expediting resolution of those matters.

The program will provide for the assignment of a judge in each vicinage with experience in complex civil litigation to manage the resolution of qualifying commercial litigation cases. Each judge will receive training in especially relevant areas of the law and case administration, and will be expected to issue at least two written opinions each year, which will be posted on njcourts.com. The judges will be encouraged to post decisions online of particular interest to the business community in order to provide an educational legal resource to the public. In order to further resolution of commercial disputes, mediation will be encouraged whenever appropriate, but will not be required under the Judiciary’s mandatory civil mediation and arbitration program.

Eligibility for the new Complex Business Litigation Program will be evaluated when each case applying for the program is filed. The program has a threshold damages amount of $200,000, although a party may make a motion to have their dispute included in the program in cases that do not meet that amount when good reasons are demonstrated. Conversely, a party may move for removal from the program if the party believes the case does not meet the program’s requirements.

The program is good news for businesses, who will certainly benefit from the streamlined judicial process for complex commercial litigation cases.

For more information regarding the firm’s Complex Business Litigation Program, please contact Kathleen Barnett Einhorn, Director of the Complex Commercial Litigation Practice Group, at KEinhorn@genovaburns.com.

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Public Records Produced Pursuant to OPRA May Not be Redacted for Irrelevancy

The New Jersey Appellate Division has recently confirmed the public’s unfettered right to access government records, regardless of whether certain information produced falls outside a specific request.

New Jersey’s Open Public Records Act (N.J.S.A. 47:1A-1 et seq.) (“OPRA”) permits members of the public to access public records maintained by government agencies, in order to ensure not only an informed citizenry but to minimize the evils inherent in a secluded governmental process.  Under OPRA, a member of the public may file a request with a public agency for a “government record”, defined as any record that has been made, received, or kept on file in the course of official business or that has been received in the course of official business.  There are 24 specific categories of documents that are exempt from production, including, deliberative materials, records within the attorney-client privilege, trade secrets or proprietary commercial or financial information, and criminal investigatory records.

Although public entities are exempt from producing confidential information, the New Jersey Appellative Division has recently ruled that custodians may not redact information they deem to be irrelevant in documents produced pursuant to an OPRA request.  In American Civil Liberties Union of N.J. v. N.J. Div. of Crim. Justice, the court addressed the issue of whether a government agency has the authority to redact admittedly responsive documents in order to withhold information the agency deems to be outside the scope of the OPRA request, and found that it could not.  The court held that if the redactions were not made pursuant to the statutorily recognized exemptions to disclose, or on a claim of confidentiality under the common law, information could not be redacted for irrelevancy.

The court noted that by redacting information deemed irrelevant, the custodian confers upon himself quasi-judicial powers which are based only on the custodian’s own notion of relevancy.  The court concluded that no legal support backs this policy. The decision, therefore, confirms that the general public has a right to access governmental records regardless of whether responsive documents to an OPRA request contain some seemingly irrelevant information.  Public agencies may not choose to withhold specific information when producing documents responsive to an OPRA request, because it deems that information irrelevant.  This, according to the Appellate Division, would push back on the very purpose of OPRA.

For more information on OPRA, please contact Kathleen Barnett Einhorn, Director of the Complex Commercial Litigation Practice Group, at KEinhorn@genovaburns.com.

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A Recent Folly by General Mills Exemplifies the Need to Consider the Business Consequences of All Legal Decisions

Before a legal decision is employed, it must be thoroughly vetted from multiple perspectives (including a determination of whether the decision comports with the company’s business goals).  Otherwise, unintended business consequences could overshadow the intended benefits of a legal decision.  A recent misstep by General Mills exemplifies this concept.  General Mills, like many other American companies, prefers to resolve consumer disputes through cost-effective negotiations and arbitrations – as opposed to engaging in traditional litigation.  Accordingly, General Mills recently rolled out a new policy that required all customers who used its website, subscribed to its email newsletters, downloaded or printed a digital coupon, entered a sweepstakes or contest, and/or redeemed a promotional offer to settle their disputes with General Mills “by informal negotiations or through binding arbitration.”

Although it is uncertain whether such a policy would even be upheld if it were challenged in court, what is clear is that General Mills did not anticipate the negative business consequences brought on by this seemingly innocuous legal policy revision.  Indeed, shortly after the policy change was made public, the New York Times ran an article (entitled “When ‘Liking’ a Brand Online Voids the Right to Sue”, Stephanie Strom, April 16, 2014) questioning the propriety of General Mills’ new policy.  This New York Times article led to a significant consumer backlash against General Mills, which ultimately caused the company to retract its revised policy.  In a blog post entitled “We’ve listened – and we’re changing our legal terms back” General Mills apologized to its customers, stating that: “We’re sorry we even started down this path.  And we do hope you’ll accept our apology.”

Just as General Mills learned, every legal decision must be evaluated from various angles in order to ensure, among other things, that the decision is consistent with your company’s business goals.  It is much better to make this determination at the onset rather than having to backtrack from unexamined decisions that could ultimately cost your company significant money and goodwill down the road.

At Genova Burns, we stand at the intersection of law, government, and business and pride ourselves on always evaluating decisions from numerous perspectives to ensure that our clients receive the highest quality legal advice.  For more information about how Genova Burns can assist your company in achieving its legal, business and political goals, please contact Kathleen Barnett Einhorn, Director of Complex Commercial Litigation.

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Section One’s Shining Moment: A new antitrust lawsuit threatens the NCAA

This year, the term “March Madness” meant more than basketball tournaments to the National Collegiate Athletic Association, its conferences and member schools.  On March 17, 2014, a group of college basketball and football players filed a federal class-action lawsuit in New Jersey against the NCAA and its five “power” conferences (the Southeastern, Big Ten, Pacific-12, Atlantic Coast, and Big 12).  The suit, Jenkins v. NCAA, alleges violations of Section 1 of the Sherman Antitrust Act, and seeks to remove the cap on compensation that colleges and universities can provide to their Division I basketball and Football Bowl Subdivision players.  The rules targeted by the suit also allow the NCAA to deny athletic eligibility to individual players, and to sanction or boycott its member schools who do not comply with the NCAA’s rules regarding athlete compensation.

The Jenkins plaintiffs assert that these rules are really a price-fixing and boycotting scheme that violates the Sherman Act, which broadly prohibits competing business entities from entering into agreements – “horizontal agreements” – that restrain trade.  The Supreme Court has declared horizontal maximum price-fixing to be per se illegal under Section 1, meaning the practice will be deemed illegal without further inquiry into its reasonableness or its beneficial effects.  Group boycotts have also been found per se illegal by the Supreme Court under Section 1, but only when the boycotting entities have market power; otherwise courts will apply the “rule of reason” approach which permits inquiry into the purpose of the boycott and its effects on competition.

The NCAA is no stranger to antitrust allegations under Section 1.  In a seminal case, the Supreme Court in NCAA v. Board of Regents, 468 U.S. 85 (1984), held that the NCAA’s then-current television plan, which limited the number of times college football teams could appear on television each season, violated Section 1.  And two pending Section-1-based class-actions against the NCAA have already garnered significant publicity.  The first case, filed in 2009 by former UCLA basketball star and former New Jersey Net Ed O’Bannon, confines its arguments to compensation derived from the use of players’ names, likenesses and images by broadcasters.  The second case, filed weeks ago by former University of West Virginia running back Shawne Alston, confines its arguments to the NCAA rules that cap the value of full athletic scholarships below the full cost of attendance.  The Jenkins case generally makes the same arguments and allegations as the O’Bannon and Alston suits, but does not seek monetary damages on behalf of the entire class, and seeks to invalidate the overall limit on compensation for athletes (unlike those prior suits).

Jenkins may be the most direct legal challenge to the NCAA’s amateurism model yet, but it faces significant obstacles.  Most importantly, although the Supreme Court invalidated the NCAA’s television plan in Board of Regents, the Court also stated that some horizontal restraints on competition, including requirements that athletes attend classes and remain unpaid,  were “essential” to the availability of the NCAA’s product – intercollegiate athletic competitions.  Therefore, the Court held that the rule of reason, instead of the per se rule, should be used to evaluate the NCAA’s policies.  Employing the rule of reason, multiple federal courts applying Section 1 have upheld NCAA policies regarding individual and institutional sanctions.

The Jenkins plaintiffs will likely have to argue that the Supreme Court’s statement regarding the essentiality of not paying players was dicta that does not bind lower courts, and that the ever-increasing amount of money flowing into big-time college football and basketball justifies a thorough evaluation of whether caps on athlete compensation support or undermine competition in big-time college sports.  The O’Bannon plaintiffs used similar arguments to successfully avoid dismissal of their claims last November, and even to partially prevail on summary judgment in April of this year – two rulings on which the plaintiffs in Jenkins will heavily rely.  However, questions regarding what rules the NCAA can promulgate in the name of promoting amateur athletics are very real, and likely cannot be answered by simply pointing to escalating coaches’ salaries, valuable broadcast contracts and licensing agreements, or even the recent National Labor Relations Board ruling that football players at Northwestern University qualify as university employees and can unionize.

The NCAA may be the favorite in its matchup against the players in this newest case.  But in litigation, as in March Madness, anything can happen.

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