Legal Backdrop to Ed O’Bannon’s Lawsuit Against the NCAA and the California Fair Pay to Play Act
In 2008, Ed O’Bannon, the former All-American UCLA power forward, happened to see his likeness on a video game which he had never authorized or been compensated for, so he sued. He became the lead plaintiff in an antitrust suit1 against the National Collegiate Athletic Association (NCAA), the maker of the video games, Electronic Arts, and the company which licensed the trademarks of the NCAA and a number of its member schools for commercial use. Sam Keller, the former starting quarterback for the Arizona State University and University of Nebraska football teams also saw his likeness on a video game, made similar claims, and the cases were joined together (consolidated) by the federal judges because they involved such similar issues.
What Does “Antitrust” Lawsuit Mean In This Context?
Antitrust suits claim violations of the Sherman Act2, which forbids any agreement or conspiracy in restraint of trade or commerce. A clear example of this would be a secret agreement between all manufacturers of a certain product not to sell that product below a certain minimum price, which would take away any incentive for the manufacturers to lower the price to compete with one another, maintaining the price at an artificially high level. O’Bannon claimed that the NCAA, by imposing its amateur athlete eligibility rules, restrained free trade and commerce by not allowing the athletes to receive any compensation under the threat of being disqualified to play. Only the NCAA rules and the agreements between these companies prevented them from being paid. They would otherwise have a clear right to be paid for this under the established rules of commercial law.
What Happened in O’Bannon’s Case? Read More
What Happened After O’Bannon’s Case?
Video games using the likenesses of college athletes became unavailable. While O’Bannon’s lawsuit was widely blamed for this, it was reported that the video game company would have been happy to negotiate with the players, but did not do so because they feared the NCAA would stop dealing with them or sue them. See, Blame the NCAA not O’Bannon
In deciding how much O’Bannon’s attorneys should be awarded in fees after winning the lawsuit, the federal magistrate judge noted that the NCAA was a behemoth organization, and likened suing them to the game of thrones: You win or you die.
It would allow college athletes in California to sign endorsement deals; earn compensation based on the usage of their name, image and likeness without no dollar amount limit, and sign all types of licensing contracts, but it would obviously not allow them to be paid for actually playing. This law says that the NCAA cannot enforce its amateur eligibility rules insofar as they prevent college athletes from doing these things.
Is the California Law Likely to Pass?
Yes – It passed unanimously in the California State Assembly, it is expected to pass in the state Senate, and Governor Gavin Newsom is expected to sign it. It is anticipated that it will go into effect in January 2023.
What Has the Reaction to This Law Been So Far? Read More
New York State Senator Kevin Parker has introduced a bill that would not only allow college athletes to earn money from their names, images and likenesses, it would require each college to take 15% of the revenue earned from ticket sales and to pay it to student athletes. I’m sure you’ll be hearing similar things in state legislatures all over the country soon.
LeBron James answered the NCAA very well in his tweet:
Or…….because of this bill, you can work with everyone to create a national policy that is fair to the athletes.
Edward O’Bannon, et al. v. National Collegiate Athletic Ass’n, U.S.D.C. NDCA, 2016 U.S. Dist. LEXIS 44131, Case 09-3329-CW,
 15 USCS § 1 et. seq.
 See, Joseph N. Crowley, In the Arena: The NCAA’s First Century 2 (2006), available at
 The Intercollegiate Athletic Association was formed in 1906 and changed its name to NCAA in 1910.
 O’Bannon v. NCAA, 739 Fed. Appx. 890.
The City of Everett, Washington, got very upset with the so called “Bikini Baristas”, and passed local laws which criminalized the clothing they wear as “lewd conduct”, and enacted a dress code for “Quick-Service Facilities,” which was clearly designed to apply to the drive through coffee-stands. In fairness to the City, the “bikinis’ were really only pasties and g-strings, instances of clearly lewd conduct, as well as customer-barista physical contact, had been documented, and one sheriff’s deputy had even been convicted of helping an owner evade the undercover officers in exchange for sex acts. Although the city police were clearly able to make arrests for the acts that violated the existing public lewdness laws, the city complained that the resources required for undercover investigation of these businesses could be better spent elsewhere and that the new ordinances would make enforcement much easier.
The Ordinances and the Baristas’ Arguments: Baristas working at “Hillbilly Hotties” sued the city, challenging the constitutionality of prohibiting “more than one-half of the part of the female breast located below the top of the areola,” “the genitals, anus, bottom one-half of the anal cleft, or any portion of the areola or nipple of the female breast” as well as the dress code provision requiring the covering of “the upper and lower body (breast/pectorals, stomach, back below the shoulder blades, buttocks, top three inches of the legs below the buttocks, pubic area and genitals).”They claimed portions of these ordinances were unconstitutionally vague. In their complaint, the Baristas pointed out that the length of a common woman’s shirt is often short enough that stretching or bending would reveal part of her back or stomach, violating the dress code, Complaint Doc. 1 ¶4. They also argued that in order to enforce the law, police would have to require suspects to expose their entire beasts in order to measure the top of the areola to determine whether “more than one-half of the part of the female breast located below the top of the areola” is covered. Women with larger areola or breasts are subject to different restrictions than women with smaller areola or breasts and accurate determination would be impossible without such exposure. Id. at ¶¶31-3.
The Baristas Win the First Round:
The District Court judge1 found that the ordinances were probably not valid because they were constitutionally vague, especially because the term “bottom one half of the anal cleft” was not well-defined or reasonably understandable, and that the ordinances failed to provide clear guidance and presented risks of arbitrary enforcement. The District Judge reasoned that their choice of clothing was “communicative”, and conveyed messages of particularized values, beliefs, ideas, and opinions; namely, body confidence and freedom of choice, and that these messages are understood by customers. The City argued that the “message”, if any, was not sufficient to qualify for free speech protection, and was understood only as a sexual image. The District Court ruled that the constitutional challenges to the ordinances should be analyzed according to the “intermediate scrutiny” standard2. Read More
The Baristas Lose on Appeal
The appeals court3 viewed the case much differently, reasoning was as follows. First, since the terms “anal” and “cleft” are easily found in the dictionary, the public would not be left to guess about the meaning of the term, which is reasonably ascertainable to a person of ordinary intelligence. The second part of the vagueness test concerns whether the criminal “lewd conduct” provisions were amenable to unchecked law enforcement discretion. The appellate court recognized that some degree of law enforcement subjectivity might be involved in close cases, but the mere fact that there will be close cases does not make a law unconstitutionally vague. Where it is a criminal law, the defendant charged with committing the crime will always be entitled to proof beyond a reasonable doubt, which is sufficient protection in those close cases. Makes a law vague is not that it might be hard to determine whether the incriminating fact it establishes has been proved, but rather the indeterminacy of precisely what that fact is. A good example of a vague statute is a ban on the assembly of three or more persons on city sidewalks if they conduct themselves in a manner annoying to passers-by. Criminalizing conduct that is annoying is constitutionally vague, because what is annoying to one person may not be to another. Read More
P.S. – Nude and Semi-nude Dancing
It should be noted that nude and semi-nude dancing has been left to be expressive conduct entitled to at least some First Amendment protection, but the Baristas did not claim that they were covered by this. The City of Everett allows nude dancing, but it is subject to the adult entertainment licensing and zoning restrictions, which the owners of the Bikini Barista establishments chose not to comply with.
 U.S. District Court for the Western District of Washington, Edge v. City of Everett, Case No. C17-1361-MJP, District Judge Marsha J. Pechman.
 Depending on the nature of the speech, different standards are used to determine the validity of the government interest in restricting the speech and the extent to which the speech may be prohibited or limited. These analyses can become complex and go beyond the scope of a blog post like this.
 U.S. Court of Appeals for the Ninth Circuit, Edge v. City of Everett, 2019 U.S. App. LEXIS 19930.
Author: Louis M. Leon, Associate Attorney
On April 5, 2019, the Law Offices of William Cafaro filed a lawsuit in the Eastern District of New York in Brooklyn against Wenig Saltiel LLP, Ira Greene, Jeffrey L. Saltiel, and Meryl L. Wenig (a real estate law firm, its partners, and Of Counsel) alleging that they subjected Plaintiff (an African American female) to a despicable hostile work environment on the basis of her race; retaliated against her for opposing discriminatory practices; and terminated her employment because of her race and/or in retaliation for engaging in protected activity. The case is known as Shonda Fernandez v. Wenig Saltiel LLP, Ira Greene, Jeffrey L. Saltiel, and Meryl L. Wenig. Case No. 19-cv-01979 (ENV)(RML). Click here for a copy of the filed complaint
The complaint thoroughly outlines Defendants’ alleged egregious and inexcusable conduct, which they purportedly perpetrated and/or condoned, including but not limited to Wenig Saltiel LLP’s Of Counsel regularly (1) watching videos of African Americans being raped, hung from trees, and set on fire, all from his office computer and within earshot of the rest of the staff; (2) declaring the inferiority of racial minorities in the United States of America; and (3) disparaging African Americans in the legal profession, including a well-respected female African American judge in Surrogates Court, Kings County, solely on the basis of their race. The complaint further outlines Plaintiff’s repeated and desperate attempts to have the Firm address the Of Counsel’s alleged behavior as well as the Firm’s alleged retaliation against her for daring to speak up. We will provide updates as the case progresses.
If you believe your employer has discriminated or retaliated against you, please contact the Law Offices of William Cafarotoday for a consultation.
You can sue a church (or any other institution or business) whether there is insurance coverage or not, so why does this matter? Because some dioceses, like the Roman Catholic Diocese of St. Paul and Minneapolis, have filed bankruptcy over sexual abuse claims, particularly where priests have abused many individual children. Claims against Larry Nassar, the sports doctor who had sexually abused approximately 500 young female athletes while recording many of the acts, singlehandedly caused USA Gymnastics to file for bankruptcy in 2018. In a bankruptcy situation, claims that are covered by insurance can be paid up to the limits of the policy, but those that are not covered either go unpaid or have to share a limited fund with other claimants.
What Determines if the Insurance Will Cover Your Case or Not? Read More
Not Only Was it Intentional or Accidental, but From Whose Point of View?
In RJC Realty1, a woman sued a health spa claiming that a masseur had touched her genital area while giving her a massage. The policy covered “bodily injury” caused by an “occurrence”. “Occurrence” was defined as an accident. There was also an exclusion from coverage for “’bodily injury’ expected or intended from the standpoint of the insured”. The insurance company said that this was not an “occurrence” because it was not an accident; it had to be intentional or it could not have happened, and because of the exclusion, the insurance policy did not cover the claim at all. The woman bringing the claim obviously didn’t accuse the spa owners of touching her; she accused them of being careless in hiring and supervising the masseur. It was also obvious that the spa owners never intended this to happen. New York’s highest court ruled that this was an “accident” and therefore it was also an “occurrence” because it was clearly not expected or intended from the standpoint of the insured. Read More
Interestingly, in coverage disputes in these cases, the child bringing the claim will usually join with the church, institution, or business being sued, against the insurance company, because they both want the claim to be defended and paid by the insurance company. The coverage issues will usually be fought out in a separate lawsuit, called a “declaratory judgment” action2, or in lawyer’s parlance, “DJ” for short. The parties to a lawsuit often want a decision on the coverage issues before they go forward in the lawsuit for the underlying claim, particularly before they talk about settlement. There are lawyers who do nothing but these insurance coverage disputes, which are very important to many people and businesses in many different contexts. In large commercial casualty losses, the way a few words in the policy are interpreted can make a difference of many millions of dollars.
How Will This Play Out Under the New NY Law Which Now Allows Lawsuits in Older Cases?
Under the new law just passed in New York3, people will now be allowed to sue any institution or organization for any claim of sexual abuse against a minor, no matter when it happened, for a one year period called a “window”. After the explosion of sexual abuse claims against the Catholic Church, insurance companies started writing the policy exclusions much more carefully, but because we will now be dealing with sexual abuse that occurred so many years ago, everyone will have to get the old policies of insurance out and see what they say. Read More
What if the Sexual Assault Occurred Over a Period of Years or There are Different Insurance Policies Involved?
This creates another whole slew of different questions, because the courts have to decide, for example, if abuse by the same priest over a period of years was one “occurrence”, one occurrence for the purposes of the policy period, or if each act was a separate “occurrence”. This can be very important because insurance companies have to pay certain amounts “per occurrence” and a certain maximum over the period of the policy. The church may also have bought its insurance coverage from different insurance companies over the period of the abuse, and these companies often fight amongst themselves over who has to pay and how much. The church may also have an “SIR” (self-insured retention) which is actually a very large deductible. This means that the church will have to pay the full amount of that deductible for each “occurrence”4 before the insurance company has to pay anything. These issues are too complex for the scope of this article, but if you have a case like this, you should choose an attorney who is closely managing the insurance coverage issues, as well as pursuing your claim against the church in court to make sure that you actually get paid after all the smoke clears – Remember that a huge verdict doesn’t mean anything if it can’t be collected.
 RJC Realty Holding Corp. v. Republic Franklin Ins. Co., (2004) 2 N.Y. 3d 158.
 In New York State court, Civil Practice Law and Rules § 3001, in federal practice, 28 U.S.C. § 2201 and Federal Rules of Civil Procedure Rule 57.
 Child Victim’s Act, the civil statute of limitations is extended under CPLR § 214(g).
 The leading case in New York on this point is Roman Catholic Diocese of Brooklyn v. National Union Fire Ins. Co. of Pittsburgh, PA., (2013) 969 N.Y.S.2d 808, 21 N.Y.3d 139, and there is an excellent article that discussed this in greater depth in the NY Law Journal, 3/20/19, p. 4 by Altschiler and Kardisch.
How Did Facebook Get Sued Successfully under the Housing Discrimination Laws without even Being a Landlord?
By passing a law called the CDA1, Congress decided to protect interactive computer services from any liability from material posted by others to promote open vibrant free expression on the internet. Because of this law, a company like Facebook can’t be sued for an ad posted by somebody else in the same way a traditional newspaper can. Was this just a frivolous lawsuit?
No. – Facebook settled the case, agreeing to make some significant changes in its advertising practices, to pay several million in fees and in advertising credit, and agreeing, at least to some extent, to police its advertising of certain things, which it never previously had any legal obligation to do.
So How Could Facebook Ever Be Liable for its Advertising Content Despite being Legally Protected by this Federal Law?
Certain public interest fair housing groups sued2 Facebook for violations of the Fair Housing Act, over discriminatory ads for real estate sales and apartment rentals in New York City. Here’s how: When any real estate agent posted an ad on Facebook, it had a choice of whether to include or exclude certain groups of people. For example, if the real estate agent knew that the landlord didn’t want any young children in the building, it had the option of excluding those people with children of any given age from the target group. When buying ads, advertisers decide to include, or exclude, certain groups from their intended target audience. This includes Facebook ads that are “boosted’ or will be shown to certain other Facebook users. The idea for this lawsuit came from ProPublica’s article detailing how Facebook’s online platform effectively enabled advertisers to exclude blacks, Hispanics and other ethnic groups from receiving their ads. Here’s what the portal actually allowed real estate agents to do:
In fact, the groups that brought the lawsuit placed an ad for a fictitious apartment and requested that African Americans and Hispanics be excluded. Facebook approved the ad and ran it. The people the advertiser didn’t want to rent to would simply never see their ad; it offered surgically accurate advertising placement that the unwanted customers would never see.
How is Facebook able to target its advertisements so precisely? Read More
Is it Legal for Facebook to Collect all this Information About You Without Even Giving You a Way to Opt Out?
Yes – Absolutely. Read More
What Did the Facebook Settlement Accomplish?
Under the terms of the settlement, a separate portal is now required to advertise for HEC (Housing, Employment or Credit) which will basically not give advertisers the option to exclude based on gender, race, religion or sexual orientation, like they do in the example above. Advertisers will be asked if they are advertising for housing or employment, and if so, their targeting options will be limited. Zip code targeting has also been eliminated and replaced by a minimum geographical radius of 15 miles. The settlement will, however, continue to allow advertisers to discriminate against anyone they like as long as the ad is not for something involving housing, employment or credit.
 Communications Decency Act, 47 U.S.C. § 230(a)
 Nat’l Fair Housing Alliance, et al. v. Facebook, Inc., SDNY 18-cv-02689, filed March 27, 2018.