On October 25, 2013, the NCAA filed a motion for review by the U.S. Supreme Court of the Ninth Circuit's decision on the NCAA's First Amendment argument in the student-athlete likeness antitrust litigation. The Ninth Circuit determined that the First Amendment argument did not apply, because the NCAA did not change the likenesses of the football players enough in the NCAA Football series of video games. The NCAA contends that the argument does apply, and wants the Supreme Court to decide the issue. As mentioned yesterday, certiorari is infrequently granted.
If certiorari is granted, the Supreme Court would review the decision concurrently with the likeness antitrust litigation. This sort of review is analogous to when a football coach calls timeout in a game so he can challenge a referee's decision and obtain further review. Upon doing so, the referee consults instant replay and decides whether his decision is confirmed, stands, or is reversed. Here, the difference is that the referee does not review his own decision; the Supreme Court would review the Ninth Circuit's decision.