How Not to Apply the Rule of Reason: The \u3cem\u3eO’Bannon\u3c/em\u3e Case

The case of O’Bannon v. NCAA has received significant attention. On behalf of a class of student-athletes, former college basketball star Ed O’Bannon sued the NCAA, challenging rules that prohibited payment for the use of names, images, and likenesses (NILs) in videogames, live game telecasts, and other footage. A Ninth Circuit panel, in a 2-1 decision, found that this restraint had anticompetitive effects and procompetitive justifications. And it considered “less restrictive alternatives,” upholding payment for incidental educational expenses beyond tuition and fees, room and board, and required books, but rejecting a deferred $5,000 payment for NILs. Straddling the intersection of antitrust, intellectual property, and sports law, the O’Bannon case presents engaging and complex issues. Much of the complexity, however, is unnecessary. For it stems from a ruling that misconstrued antitrust law. In particular, the Ninth Circuit applied a version of the Rule of Reason that short-circuited the analysis and insufficiently deferred to a district court judge who presided over an exhaustive trial on amateurism

Justice Oliver Wendell Holmes: Law and the Inner Self

A Review of Justice Oliver Wendell Holmes: Law and the Inner Self by G. Edward Whit

Why a Large and Unjustified Payment Threshold Is Not Consistent with \u3ci\u3eActavis\u3c/i\u3e

This Article offers three reasons why a requirement that a plaintiff demonstrate a large and unjustified payment before reaching the rule of reason is not consistent with Actavis. First, nearly all of the Court’s discussion of large and unjustified payments occurred in contexts unrelated to the antitrust analysis that future courts were to apply. Second, the Court instructed lower courts to apply the rule of reason, not a new framework with a threshold it never mentioned. And third, such a threshold is inconsistent with the Court’s (1) allowance of shortcuts for plaintiffs to show anticompetitive effects and market power and (2) imposition of the burden on defendants to show justifications for a payment

How Not to Apply the Rule of Reason: The \u3cem\u3eO’Bannon\u3c/em\u3e Case

The case of O’Bannon v. NCAA has received significant attention. On behalf of a class of student-athletes, former college basketball star Ed O’Bannon sued the NCAA, challenging rules that prohibited payment for the use of names, images, and likenesses (NILs) in videogames, live game telecasts, and other footage. A Ninth Circuit panel, in a 2-1 decision, found that this restraint had anticompetitive effects and procompetitive justifications. And it considered “less restrictive alternatives,” upholding payment for incidental educational expenses beyond tuition and fees, room and board, and required books, but rejecting a deferred $5,000 payment for NILs. Straddling the intersection of antitrust, intellectual property, and sports law, the O’Bannon case presents engaging and complex issues. Much of the complexity, however, is unnecessary. For it stems from a ruling that misconstrued antitrust law. In particular, the Ninth Circuit applied a version of the Rule of Reason that short-circuited the analysis and insufficiently deferred to a district court judge who presided over an exhaustive trial on amateurism

SOPA, PIPA, ACTA, TPP: An Alphabet Soup of Innovation-Stifling Copyright Legislation and Agreements

SOPA, PIPA, ACTA, TPP: An Alphabet Soup of Innovation-Stifling Copyright Legislation and Agreement

SOPA, PIPA, ACTA, TPP: An Alphabet Soup of Innovation-Stifling Copyright Legislation and Agreements

SOPA, PIPA, ACTA, TPP: An Alphabet Soup of Innovation-Stifling Copyright Legislation and Agreement