By Joseph M. Hanna, of Goldberg Segalla
The National Collegiate Athletic Association (“NCAA”) is currently defending student amateurism on several fronts across the country in legal battles with big potential monetary implications. In one ongoing lawsuit, former UCLA basketball star Ed O’Bannon leads a class action on behalf of former and current NCAA players, alleging that the organization’s practice of licensing and profiting from student images and likenesses without their consent violates federal antitrust laws. Elsewhere, Northwestern quarterback Kain Colter organized a union movement at the school and requested that the National Labor Relations Board declare the students to be employees of the college.
The newest dispute emerged on March 17, 2014, in New Jersey federal court through a lawsuit filed by high-powered sports labor attorney Jeffrey Kessler. The crux of the action is that the NCAA has impermissibly limited player compensation to the value of their athletic scholarships.
In a statement to ESPN Kessler said, “The main objective is to strike down permanently the restrictions that prevent athletes in Division I basketball and the top tier of college football from being fairly compensated for the billions of dollars in revenues that they help generate . . . . In no other business — and college sports is big business — would it ever be suggested that the people who are providing the essential services work for free. Only in big-time college sports is that line drawn.”
Though the lawsuit names several current college athletes as plaintiffs, it is designed to be a class action representing all players on scholarship in FBS Football and Division I basketball. The relief sought by the action is injunctive in nature — it asks the court to declare that the NCAA’s practice of capping athletic compensation is unlawful. Players would then be able to seek monies in excess of tuition, room, board and books in exchange for their athletic performances.
Kessler commented, “We’re looking to change the system, that’s the main goal. We want the market for players to emerge.” Interestingly, the players’ suit notes that no other students are subject to educational or financial compensation caps by the universities that they attend. For example, high performing math and science students can be lured to certain schools with promises of full scholarships plus cash grants, with no limits on the benefits that can be offered.
Kessler is no stranger to taking on high profile cases involving professional athletes and various sports leagues. Twenty years ago Kessler helped bring the practice of free agency to the NFL, and today he acts as outside counsel to the NFL Players’ Association and the NBA Players’ Association. Kessler’s high profile athlete clients include the likes of NBA legend Michael Jordan and New England Patriots quarterback Tom Brady.
All in all, Kessler believes that a victory here will only improve collegiate athletics in the long run. He noted, “[This suit will bring about] fair treatment for athletes and a more sustainable, attractive product and system that everyone can get behind, just like in football, basketball, baseball and hockey at the pro level.”
