Walk-on Suit Draws on Law v. NCAA for Strength

Jun 19, 2004

A former walk-on for the University of Washington football team has filed a class-action suit against the NCAA, alleging that the association’s cap on scholarships violates antitrust laws.
The named plaintiff is Andy Carroll, a wide receiver for the Huskies from 1996-2000. His attorneys, Steve Berman of Hagens Berman and Simeon Osborn of Osborn Machler, hope to represent all players, who did not receive a scholarship as a participant in NCAA Division I-A football during the past four years.
Prior to 1977, the plaintiff points out, schools were permitted to offer as many scholarships as they deemed appropriate. The current limit of 85 contrasts with 117, which is the average number of players on a roster of a typical Division I-A football.
“There’s nothing saying that the University of Washington can’t draw the
line at 20 or 30 scholarships,” Berman told the Seattle Times. “But it has to make the decision on its own. It can’t jointly agree (with other NCAA schools).”
Berman and Osborn hope to draw a parallel with the 1998 decision by the 10th U.S. Circuit Court of Appeals in Law v. NCAA, 134 F.3d 1010, which concluded that the NCAA, in fact, had violated antitrust laws by collectively agreeing to pay some assistant coaches a reduced amount of salary. The so-called “restricted earnings case” cost the NCAA approximately $67 million.
Berman described Law as “precedent” for his case. “It disposed of the NCAA
Argument that it’s not really subject to antitrust laws, and a lot of the same defenses they asserted, they will assert here.”
But Law is a 2-edged sword, say some observers.
“Much of the language in that opinion actually goes against the plaintiff’s case,” says Greg Skidmore, a noted sports law blog publisher. Skidmore goes on to note that the court held that the “NCAA’s product required certain horizontal restraints on trade to survive.”
Examples of such horizontal restraints could be rules that “(forbid) payments to athletes and those (that require) that athletes attend class. NCAA v. Board of Regents, 104 S.Ct. 2948 (1984).”
The Supreme Court held in Board of Regents that:
“It is reasonable to assume that most of the regulatory controls of the NCAA are justifiable means of fostering competition among amateur athletic teams and therefore pro-competitive because they enhance public interest in intercollegiate athletics.”
However, the restriction on coaches’ salaries identified in Law does not qualify as a horizontal restraint that would “level the playing field.”
The plaintiff in the instant litigation may be challenged to show a parallel between his case and Law.
It has been a common perception that scholarship limits were initiated to prevent football powers, such as Oklahoma and Alabama, at the time from stock-piling talent to the detriment of other football programs. The courts may determine this to be a “reasonable standard.”
In the meantime, however, the plaintiff and his attorneys are actively trying to highlight the revenues that typical Division I football programs bring in versus the minor expense of giving walk-ons scholarships. Scholarships for all roster players would cost an estimated $600,000 per school, while the average Division I-A football team earns nearly $5 million in excess revenue, according to the complaint.
“Stadiums don’t sweat through two-a-day practices. Coaches with million dollar salaries don’t run hours of wind sprints,” said Berman. “We intend to prove that the NCAA and its affiliated colleges exploit hardworking players while encouraging colleges to spend on superficial adornments.”
The complaint further describes the “extravagant” expansions at colleges such as the University of Oregon, where the football program recently spent $3.2 million to update the locker room with features like three 60-inch plasma televisions and self-contained ventilation systems in each locker to control moisture.
While painting the schools as big spenders, the suit also focuses on “the impact” the scholarship limit has “on poorer students, who may not be able to attend a Division I-A school without scholarships available for walk-ons.
But as much as sympathy as that picture may create, the defense will surely counter that forcing schools to give walk-ons scholarships will lead to fewer opportunities for other student-athletes. This could occur because schools, faced with a new item in the budget, may offer less opportunities for college students overall to play football, fewer opportunities for male student-athletes in men’s minor sports, and fewer opportunities for female student-athletes, a direct threat to Title IX compliance.


Articles in Current Issue