By Ellen J. Staurowsky, Ed.D., Professor, Sport Management, Drexel University, Senior Writer
In early August of 2017, Plaintiffs in In Re: National Collegiate Athletic Association Athletic Grant-in-Aid Antitrust Litigation filed a request for summary judgement against Defendants NCAA and top conferences. On September 29, 2017, the Defendants, in turn, filed their own motion for summary judgement and opposition to the plaintiff’s motion for summary judgement. While the Plaintiffs alleged that the business practices adopted by college sport officials in the NCAA and select conferences in the form of a bundle of 80 NCAA rules violate the Sherman Antitrust Act (see Staurowsky, September 15, 2017 for details), Defendants take a different tack, arguing that they should be granted summary judgement because O’Bannon (2016) affirmed that the NCAA and conferences need the latitude to establish their own rules and that the Plaintiffs are attempting to relitigate a decision established as binding precedent.
Introduction: “The Unique Nature and Special Appeal” of College Sports
The NCAA begins with a familiar assertion, that for more than a century the central principle at the core of college sport is the requirement that “student-athletes” not be paid professionals.. The term itself, as put forward in the NCAA’s filing, is intended to evoke in a literal way the delicate ecosystem that the college sport environment creates where athletes in the sports of football and basketball are competing at high levels and must, at the same time, respond to the demands of pursuing university degrees. As noted in the motion, “This balancing is both complex and essential to preserving the unique nature and special appeal of college sports” (NCAA response, 2017, p. 1). Citing to O’Bannon v. NCAA (2015), the NCAA holds out the specter that should football and basketball players be rendered professional, the “unique appeal” of college sport would no longer exist and the enterprise itself relegated to “minor league” status. The NCAA takes the position that previous rulings in O’Bannon and NCAA v. Board of Regents (1984) afford it latitude to pass rules that preserve the competitiveness and popularity of the college sport product and that Plaintiffs challenge to the “entire architecture of NCAA” offends the meaning of those rulings.
NCAA & Conferences Should Be Granted Summary Judgement Because of O’Bannon Precedent
The NCAA argues in response to Plaintiffs that their challenge to NCAA rules governing the terms and conditions under which football and basketball players receive athletically-related financial aid and the limit imposed on compensation beyond full cost of attendance (COA) is foreclosed by the ruling in O’Bannon. According to the NCAA, given that the COA limit is “the cornerstone of the NCAA’s prohibition on pay-for-play” NCAA Response, 2017, p. 15), this issue was already determined by the Ninth Circuit Court of Appeals. They go further in arguing that the Plaintiffs’ case presents “… a nearly identical challenge by essentially the same class…”, effectively ignoring what the NCAA considers to be the binding legal precedent established in O’Bannon. Under the Rule of Reason analysis, attempts by the Plaintiffs to expand benefits accorded to players beyond stipends that cover full cost of attendance runs headlong into the Court’s determination that the NCAA is not compelled to offer more than that amount, noting that the Court expressly rejected the placement of $5,000 in trust for athletes to collect after their eligibility had ended. Invoking doctrines of stare decisis, res judicata, and collateral estoppel, the NCAA takes the position that the Ninth Circuit’s ruling presents a substantial roadblock to moving forward with the Plaintiffs’ claims and lends support for the NCAA’s defense that it need only provide compensation that is tethered to educational expenses regardless of whether the Plaintiffs introduce new facts.. The NCAA argues that “Were it otherwise, then no matter how many times a court found that a certain rule was procompetitive, a new set of plaintiffs could argue that the supposedly ‘new facts’ in a ‘new record’ compelled a different factual finding” (NCAA Response, 2017, p. 20).
Plaintiff’s Motion Should be Denied Because of Binding Precedent & Record Evidence
The NCAA argues that their rules governing compensation of athletes are wholly consistent with its principle of amateurism. In response to Plaintiffs attempts to challenge the cap on compensation imposed by the athletic scholarship or grant-in-aid (which covers tuition, housing, room and book, and fees) and limits stipends to the gap between what an athletic scholarship covers and full cost of attendance (COA), the NCAA argues that going beyond such payments would violate the ruling in O’Bannon. In response to Plaintiffs’ charge that the relaxation of the compensation limits resulting from O’Bannon has not harmed consumer demand for the college sport product, the NCAA argues that this fact is merely a reflection of the “wisdom of the court” and not evidence to press for even greater expansion. The NCAA further takes issue with Plaintiffs argument that the stipend constitutes a payment for athletic services by offering the perspective that payments, whether given as reimbursements or checks, fall within the category of payments for education because they are determined on the basis of the federally calculated cost of attendance formula. The offering of certain specific benefits that allow for cash or in-kind awards of value to athletes beyond COA as permitted in NCAA rules does not violate the NCAA’s principle of amateurism and were already subjected to scrutiny in O’Bannon.
They next tackle the allegations leveled by the Plaintiffs that the NCAA and its member conferences manipulate the concept of amateurism to best serve profitability to the detriment of the athletes themselves. They hold fast to the notion of a “student first, athlete second” depiction with the NCAA refuting, as they did in O’Bannon, that expectations placed on college football and basketball players create in reality an athlete first, student second arrangement caused by excessive hours required to participate in those sports and priority given to scheduling athletic obligations over academic ones. The NCAA argues that these assertions are simply “baseless” because athletes are enrolled in courses, receive college degrees, and their academic performance according to selected metrics has improved over the years.
The NCAA continues to defend its positionthat the rules imposed on college athletes are justified on the basis of their procompetitive effects, the evidence in the record supports such a stance, and that the conclusions reached in O’Bannon recommend a denial of the Plaintiffs’ motion for summary judgement.
Daubert Grounds to Exclude Selected Testimony of Plaintiff’s Expert Witnesses
Using a ruling in Daubert v. Merrell Dow Pharms., Inc (1993), the NCAA accuses the Plaintiffs of trying to avoid the Ninth Circuit’s controlling decision in O’Bannon (2015) by improperly attempting to relitigate holdings through the introduction of contradicting expert opinions. They argue that Rule 702 and Daubert require two things: that there be an alignment or “fit” between opinions offered by experts and the facts of the case and that the expert opinions offered “assist the factfinder”. In effect, the NCAA seeks to invalidate or exclude expert testimony that conflicts with what they present as the Ninth Circuit’s “clear” holding that “the NCAA’s financial aid rules serve the procompetitive purposes of integrating athletics and promotions amateurism” (p. 54).
Conclusions
The NCAA and college conferences rely on enduring arguments that the principle of amateurism guides their decision making, creating an unassailable procompetitive justification that integrates athletics and academics and allows for compensation to be awarded to athletes so long as that compensation is linked to education. And in cases where NCAA rules allow for athletes to accept financial compensation or gifts of value that go beyond the bounds of educational expenses, the NCAA has the right to exercise discretion as it deems appropriate.
The NCAA had previously attempted to get this case dismissed without avail. While the NCAA again argues here that the finding in O’Bannon (2015) forecloses a continuing examination of the issues, Judge Wilken rejected the initial bid for dismissal by noting that O’Bannon forecloses one type of relief that had previously been sought by Plaintiffs. Replies are due November 17, 2017 with a motion hearing set for January 16, 2018.
References
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)
In Re: National Collegiate Athletic Association Grant-in-Aid Antitrust Litigation. Defendants’ Motion for Summary Judgement and Exclusion of Expert Testimony and Opposition to Plaintiffs’ Motion for Summary Judgement. MDL No. 4:14-md-02541-CW. Case No. 4: 14-cv-02758-CW. (September 29, 2017).
O’Bannon v. National Collegiate Athletic Association ,7 F. Supp. 3d 955 N.D. Cal. 2014)
O’Bannon v. National Collegiate Athletic Association, 802 F.3d 1049 (9th Cir. 2015).
NCAA v. Board of Regents, 468 U.S. 85 (1984).
Staurowsky, E. J. (2017, September 15). College athletes seeking relief from NCAA’s cap on athlete compensation file for summary judgement. Sports Litigation Alert 14 (17).
