Steve Berkowitz

USA TODAY Sports

The Ed O’Bannon antitrust case against the NCAA — already uncommon in generating competing requests for hearing by the Supreme Court — has taken another unusual turn in its filings with the high court.

Lawyers for the O’Bannon plaintiffs recently submitted a brief in which they agreed with the NCAA’s argument that the court should consider whether the 9th U.S. Circuit Court of Appeals properly applied a 1984 Supreme Court ruling that the association historically has relied on in defending its amateurism system.

Predictably, the plaintiffs vehemently dispute the NCAA’s contention that the 9th Circuit erred when it unanimously upheld a lower court decision that NCAA rules limiting athletes to receiving tuition, fees, room, board and books violated antitrust laws. The plaintiffs, in a filing dated July 1, also argued that the high court should deny the NCAA’s request that it consider whether First Amendment protections should have come into play regarding the use of college athletes’ names, images and likenesses in videogames.

However, the idea that a party seeking Supreme Court review under one set of terms would concur, even in part, with different terms proposed by its opponent is rare — especially since, in this case, the NCAA has argued that the court should refuse to hear any of the questions that the plaintiffs offered in their petition to have the case heard.

Power conferences announce plan to reduce time demands on athletes

It’s “uncommon, but not super-rare” for both sides in a case to ask for Supreme Court review, said Jeffrey Fisher, a Stanford Law School professor who is co-director of its Supreme Court Litigation Clinic and has argued nearly 30 cases before the high court. “It’s considerably more uncommon for both sides to urge the court to take the same question. What the plaintiffs are doing is not unheard-of, but it only happens a handful of times” a year.

Fisher said such situations rise from “sides representing a cause who want a universally applicable precedent that decides an issue once and for all.”

That applies here, and the Supreme Court’s docket now shows that the parties’ respective bids for a hearing from the justices will be considered together, rather than separately. Although conferences at which the court makes a variety of procedural determinations will occur throughout the summer, it is more likely that the court will wait at least until the conference set for Sept. 26 before deciding whether take up this case. That means an announcement about whether the court will hear the case probably won’t come until at least early October.

The NCAA maintains that the 1984 case, NCAA v. Board of Regents, should have resulted in a ruling in its favor in the O’Bannon case without the detailed analyses that led U.S. District Judge Claudia Wilken and a three-judge panel from the 9th Circuit to their conclusions.

The Board of Regents case was about control of college football TV rights, but the opinion included the statement that “in order to preserve the character and quality of the (NCAA's) 'product,' athletes must not be paid, must be required to attend class and the like.”

In their new filing with the Supreme Court, the plaintiffs reiterated their contention that the court should consider the issues that they proposed, including the question of whether the NCAA’s version of amateurism has a positive impact on competition among the schools.

“Indeed,” the plaintiffs wrote, the NCAA’s request for consideration of the 9th Circuit’s application of the Board of Regents case “demonstrates the need to grant the O’Bannon Petition” for a hearing of the case and “operates as a precondition” to the NCAA’s request.

“The NCAA seeks a categorical declaration that its challenged no-compensation rule is procompetitive as a matter of law on the basis of … Board of Regents,” the plaintiffs wrote. “The NCAA misreads that decision, but the O’Bannon Petitioners urge this Court to grant review to make clear that the NCAA lacks the sweeping immunity it seeks.”