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I. INTRODUCTION
On August 8, 2014, the United States District Court for the Northern District of California issued its decision in the highly awaited O'Bannon v. National Collegiate Athletic Association (NCAA) case, where a group of current and former NCAA football and men's basketball players challenged an NCAA provision prohibiting compensation for use of their name, image, and likeness (NIL).1 On September 30, 2015, the Court of Appeals for the Ninth Circuit affirmed the district court's ruling in part and reversing in part.2 The case, filed in 2009 by the named plaintiff, Ed O 'Bannon, along with 19 other student-athletes, challenged the NCAA's use of student-athletes' NIL in video games and live television broadcasts as a violation of antitrust law. 3 The O'Bannon decisions come in the midst of national debate and a number of student-athlete challenges to NCAA provisions about paying student-athletes above the current grant-in-aid scholarships offered by NCAA Division I schools.4
The debate regarding paying college football and men's basketball athletes engenders strong opinions on either side, but the near-billion dollar revenues generated by NCAA football and men's basketball raise the stakes and emotions surrounding this topic. Compensation for use of student-athletes' NIL creates a unique juxtaposition of a player's "right to publicity" and NCAA amateurism arguments. Student-athletes are unique participants in a commercial enterprise because they do not receive pay but contribute to the NCAA's success in commercializing college football and men's basketball. The O'Bannon decision introduces a new layer of complexity to the student-athlete "pay-forplay" debate because it supports student-athlete NIL compensation and seems to reject the historically successful NCAA amateurism defense.
This Note discusses the O'Bannon v. NCAA decisions and the impact on the NCAA's amateurism model. Part II of this Note addresses the history of the NCAA, its commercial growth, and the application of antitrust laws challenging NCAA provisions. Part II also distinguishes the details of O'Bannon v. NCAA and introduces the commercial/noncommercial test from Adidas America, Inc. v. NCAA.5 Part III analyzes the O'Bannon facts in the context of applying the Adidas commercial/noncommercial test. Part IV recommends the application of the Adidas commercial/noncommercial test by the NCAA to amend its provisions regarding player amateurism. Part V concludes by suggesting that courts hearing antitrust challenges against the...