“The NCAA’s Worst Nightmare’’ the headline on the HuffPost website blared over the weekend.
It turns out the site feels the NCAA’s nightmare is longtime sports lawyer Jeffrey Kessler, who is continuing his legal assault on the NCAA’s gameplan of making billions of dollars without paying the players more than the alleged cost of attending college.
In effect, Kessler is trying to change the system and force the colleges to give the players more compensation.
It’s likely to be a long legal fight that will go to the U.S. Supreme Court, although the NCAA has managed to all but continue the status quo despite some recent legal hits.
First, Ed O’Bannon won his lawsuit last October in the U.S. Court of Appeals for the Ninth Circuit that found the NCAA was violating antitrust law. The Supreme Court let the decision stand.
O’Bannon was arguing that the players should be compensated for the commercial use of their names, images and likenesses appearing on TV broadcasts and on apparel and in video games.
Instead of forcing the NCAA to pay the players for apparel use, the court ruled that the NCAA must offer the purported “full cost” of attending school, although some colleges were already doing that because the NCAA allowed it starting in 2015.
Then the NCAA agreed to pay $208.7 million to settle a class-action lawsuit brought by former West Virginia running back Shawne Alston.
If the settlement is approved, about 40,000 athletes who played Division I football, men’s basketball and women’s basketball since 2010 and didn’t receive the full cost of attending school will get a check.
An athlete who played four years will receive an average of $6,763.
The NCAA decided to settle instead of risking a loss in court, especially since a couple of hundred million is virtual chump change for the NCAA.
But now comes the big one. The class action suit filed by Kessler for former Clemson defensive back Martin Jenkins argues the players should get more than the full cost of attendance.
As Kessler said in a interview last year, “Schools should be free to compensate athletes in any manner that they want to, without NCAA restrictions.’’
The suit has since picked up two other named plaintiffs – former Middle Tennessee football player Anfornee Stewart and former Wisconsin basketball player Nigel Hayes.
Kessler says the total revenue for Division I basketball and football is greater than the revenue for the NBA and the NHL.
Kessler isn’t seeking financial damages, but to change the system. If the system is changed, he knows players will get more compensation than the full cost of attending college.
Kessler said the NCAA will argue that they’ve always argued: amateurism is its Holy Grail.
“The new version of [the NCAA’s line of thought] is that if you pay one penny more than the full cost of attendance, the world will come to an end,’’ Kessler said.
That’s hyperbole, but Kessler has a take-no-prisoners style and doesn’t apologize for that style. During the 2011 NBA lockout, Kessler said the NBA was treating its players like “plantation workers.’’
Before a new deal was reached, former NBA commissioner David Stern called him “the single-most divisive force’’ in the negotiating process and labeled his conduct “routinely despicable.’’
NFLPA head Dee Smith said a lot of lawyers can fight lawsuits.
But he added, “You either have the passion for the morality of the cause or you don’t.’’
Kessler has that passion.
Last fall, U.S. District Judge Claudia Wilken, who oversw the O’Bannon suit, rejected the NCAA bid to dismiss the Kessler suit.
The two sides have conducted depositions and discovery over the past six months and will return to court for hearing later this month. The case will likely go trial in 2018.
There seems to be no chance of a settlement. The NCAA is not ready to offer the players more than full cost of attending school, which means it will likely go all the way to the Supreme Court.
If NCAA officials had any foresight, they would settle the case and set up a new system for the players to get more. How much more would be a subject of negotiations.
But we’ve been down this road before. The pro leagues used to say free agency was going to ruin sports. Instead, it’s been a boon for the pros.
And Judge Wilken, according to Sports Illustrated, has indicated she expects any payments in excess of the value of athletic scholarships to exhibit some degree of relationship to education expenses. It remains to be seen how view that would play out, but it might limit what the players are paid.
In reality, if the NCAA loses, it probably wouldn’t affect college sports that much. The big schools that have more money would offer more for the players and continue to dominate sports. And in college basketball, the top players often only stay a year.
Instead of competing by building Taj Mahals of sports complexes, they could compete by paying the players more.
And does anybody doubt that some boosters aren’t already paying the players more as long as long as they don’t get caught?
A bigger problem for the NCAA would be if the NFL set up a minor league and siphoned off many of the best players. But for the time being, the NFL remains content to have a farm system at no cost to them.
Many tech entrepreneurs dropped out of college to start their businesses. Why can’t athletes do the same? Instead, basketball players have to stay out of the NBA for a year after high school and football players have to sit an unconscionable three years.
And maybe the NCAA could even put more emphasis on getting the players a better education instead of them steering them to easy courses to keep them eligible without getting them a degree.
It’s easy to forget that only a small minority of college athletes make it in the pros.
There are a lot of things wrong with big-time college athletics. The fact the players don’t get paid is just one of them.
But changing that system would be a great start in bringing the NCAA kicking and screaming into the 21st century.