Winston & Strawn LLP, representing a group of current college football and basketball athletes, has filed a lawsuit in federal court against the National College Athletic Association (NCAA) and the five NCAA “power conferences” (the SEC, the Big Ten, the Pac-12, the ACC, and the Big-12), claiming that the defendants violated antitrust laws by restraining competition for the services of such athletes.
The firm alleged in the complaint that the challenged restraints yield “billions of dollars in revenues each year through the hard work, sweat and sometimes broken bodies of top-tier college football and men’s basketball athletes.”
The lawsuit, filed in the District of New Jersey, specifically challenged the limits that the NCAA and the conferences impose on the remuneration and financial aid, which top division football and men’s basketball players are permitted to receive. The case seeks permanent injunctive relief against the restraints on a class-wide basis, and individual damages for the player plaintiffs.
“Instead of permitting individual institutions to compete for the services of players who participate in their major college sports businesses, the NCAA and the power conferences act as a cartel in placing a cap on the athletes’ compensation,” said Winston & Strawn partner Jeffrey L. Kessler, who heads the firm’s global antitrust practice and co-chairs its internationally regarded sports law practice. “These restrictions are a blatant violation of antitrust laws, have no legitimate pro-competitive justification, and it is finally time to bring them to an end.”
The class action lawsuit has been endorsed by the National College Players Association and its Executive Director, Ramogi Huma.
“The bottom line of this collusion by the NCAA and its conferences is that players receive less for their services than they would in a fair and competitive market. This is unfair and hurtful to the athletes,” said Huma.
He added that “Winston & Strawn has closely consulted with the NCPA, and we hope that Jeff Kessler and his colleagues will achieve the same results for the highest level of college football and basketball players that he has historically achieved in fighting for NFL and NBA players against anticompetitive restraints.”
Under NCAA and conference rules, players may receive only tuition, required fees, room and board, and required course-related books in exchange for their services as college football and men’s basketball players. These restrictions are naked price fixing agreements, according to the complaint.
The complaint alleges that the defendants and their member institutions have exploited the players “under false claims of amateurism,” and “have lost their way far down the road of commercialism, signing multi-billion dollar contracts wholly disconnected from the interests of ‘student athletes,’ who are barred from receiving the benefits of competitive markets for their services even though their services generate these massive revenues.”
Kessler and his team — headed by New York-based Winston partners David Feher and David Greenspan — have litigated some of the most famous sports-antitrust cases in history, including the landmark antitrust jury trial, McNeil v. the NFL, which led to the establishment of free agency in the National Football League, and Brady v. NFL, which led to the end of the 2011 NFL lockout. Mr. Kessler and his firm are outside counsel to both the NFL Players Association and the National Basketball Players Association.
In October 2013, Winston & Strawn (www.winston.com) announced the launch of the firm’s college sports practice group led by David Greenspan and Tim Nevius, a former NCAA lead investigator. The practice group provides comprehensive legal services to clients involved in all aspects of college and amateur athletics, including the representation of clients involved in disputes with the NCAA.
ESPN’s Tom Farrey, who broke the story, contrasted the latest suit with “a similar, if less aggressive, claim filed earlier this month by a Seattle firm on behalf of former West Virginia running back Shawne Alston. In that suit, which does not include current players, the same defendants that Kessler’s group is targeting were asked to pay damages for the difference in the value of an athletic scholarship and the full cost of attendance — an amount equivalent to several thousand dollars annually.
“By contrast, the Kessler suit dispenses with the cost-of-attendance argument and does not ask for damages as a group,” Farrey wrote. “It simply states that no cap is legal in a free market, and asks the judge to issue an injunction against the NCAA ending the practice. It contends that NCAA member universities are acting as a ‘cartel’ by fixing the prices paid for athletes, who presumably would receive offers well in excess of tuition, room, board and books if not restricted by NCAA rules.”
Kessler told the outlet: “We’re looking to change the system, that’s the main goal. We want the market for players to emerge.”
