O'Bannon just the beginning: Jenkins case could unhinge NCAA
OAKLAND, Calif. — The courtroom cleared quickly Wednesday afternoon when Judge Claudia Wilken cut off a direct examination of Stanford athletic director Bernard Muir that sounded more like a (quite enticing) recruiting pitch for The Farm rather than a discussion of whether the NCAA's rules represent a price-fixing conspiracy or a set of guidelines designed to protect the union of education and athletics. Muir would be back Friday for his cross-examination in the O'Bannon vs. NCAA case, but talk had already shifted to the testimony of NCAA president Mark Emmert on Thursday.
Outside the courthouse, the plaintiffs' lead attorney Michael Hausfeld broke down the big plays from the testimonies of Muir, University of South Carolina president Harris Pastides and EA Sports chief legal officer Joel Linzer. Later, NCAA vice president Bob Williams offered some background information in advance of Emmert's appearance. As each man spoke, people wearing dark suits kept filing through the courthouse door. They were headed for Wilken's courtroom on the fourth floor.
I promised Tuesday to limit the sports analogies as legal analysis, so allow for a little geekier comparison. If it doesn't make sense, consult Wookieepedia. From the perspective of the NCAA, the schools and the conferences, Darth Maul walked out when Wilken adjourned O'Bannon for the day. Then Darth Vader entered the courtroom.
Less than 30 minutes after the O'Bannon trial adjourned, Wilken called to order a case management conference involving pretty much everyone else suing the NCAA in federal court on antitrust grounds. There were more lawyers than chairs to hold their designer-suited derrières. Among them were attorneys for former West Virginia tailback Shawne Alston, who is suing the NCAA, the ACC, the Big Ten, the Big 12, the Pac-12 and the SEC because his scholarship was capped below the actual cost of attendance. They were joined by attorneys representing former Minnesota and Northern Colorado defensive end Kendall Gregory-McGhee and former West Virginia offensive lineman Nick Kindler, who also sued the NCAA and those same five conferences on similar grounds. On the phone were attorneys for former Tulane cornerback Alex Lauricella, who sued the NCAA and all 10 FBS conferences over the cost-of-attendance gap. Another attorney represented a class led by Minnesota Vikings defensive tackle and former Florida star Sharrif Floyd. That group has sued the NCAA and the 10 FBS conferences alleging the defendants are a cartel that has illegally capped the value of scholarships.
All those cases were filed in different parts of the country, but the U.S. Judicial Panel on Multidistrict Litigation consolidated them and placed them in the courtroom of Wilken, who has become quite familiar with college athletics because of the O'Bannon case. That panel also lumped one more case in with that group, and it's the one that scares the daylights out of athletic directors who aren't really sweating O'Bannon. It's also the case that probably will stand apart from the group described above.
David Greenspan, a partner at the New York firm of Winston and Strawn, stood Wednesday and introduced himself as a representative of "the Jenkins plaintiffs." Across the aisle, the attorneys representing the NCAA and the five wealthiest conferences probably refer to the case differently. They likely are aware of lead plaintiff Martin Jenkins, who plays cornerback at Clemson. But in the world of college athletics, the Jenkinscase is referred to almost universally as the Kessler case.
Greenspan works at Winston and Strawn with Jeffery Kessler, who in 1992 was part of a team that convinced a jury to declare the NFL's Plan B free agency system illegal. That helped usher in the current era of NFL free agency. The Jenkins case, which was originally filed in New Jersey in March, doesn't have the narrow focus of O'Bannon, which involves only name, image and likeness rights. Jenkins seeks to drop a bomb on the business model for college sports, strip away the NCAA's compensation rules and truly open the market for football and men's basketball players.
"The Defendants and their member institutions have lost their way far down the road of commercialism, signing multibillion 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," plaintiffs' attorneys wrote in their initial complaint. "As a result of these illegal restrictions, market forces have been shoved aside and substantial damages have been inflicted upon a host of college athletes whose services have yielded riches only for others. This class action is necessary to end the NCAA's unlawful cartel, which is inconsistent with the most fundamental principles of antitrust law."
What makes the case even more interesting — and more terrifying to those wishing to preserve the status quo — is the identity of Kessler and Greenspan's teammate. His name is Tim Nevius, and if it sounds familiar, it's probably because you read the transcript of former Ohio State football coach Jim Tressel's interview with the NCAA's enforcement staff from February 2011. Nevius was the NCAA staffer who conducted the interview. Nevius left the NCAA, where he was an associate director of enforcement, to join Winston and Strawn's sports practice group. Nevius knows exactly where to poke the NCAA. He probably also has a very good idea which documents to request from the defendants during discovery to do maximum damage should the case ever go to trial.
If it does, that likely will happen back in New Jersey. While the panel lumped Jenkins with the other cases, Kessler's group wants the case to stand on its own because its scope differs from the other cases being consolidated before Wilken. Basically, it seeks to end all financial restrictions on college athletes. No case before has taken such direct aim at the business model, and by including the five wealthiest conferences, the NCAA and schools can't use one another as shields. The schools, which actually make the rules, will have to answer as well. Discovery alone will be a nightmare for all these entities as Kessler's team unearths as much embarrassing material as it can find. A loss in that case would fundamentally change college sports.
Losing O'Bannon would mean schools might have to budget differently if they lose a chunk of broadcast revenue to the players, but the schools in the Power Five were already planning on giving more money to the players. Also, the ability of players to market their own names could change recruiting a bit, but a lot of the rules would remain in place and unchanged.
Losing Jenkins could mean that the NCAA could no longer enforce scholarship limits or the amount schools could pay for scholarships. It would be an open market, and the finances could change considerably.
Given the NCAA's halfhearted defense in O'Bannon, it's difficult to imagine it mounting a better one inJenkins. Wednesday, Pastides and Muir did a great job explaining why college and college athletics are good, but they failed to explain why athletes would be harmed by gaining the ability to market their name, image and likeness rights — which is all that really matters in terms of the case. Asked what might happen if players gained such rights, Pastides said this: "It would render athletes who don't receive these rewards as second-class citizens. It would make them feel worse about themselves." In the real world, people whose efforts generate more revenue tend to receive more compensation than people whose efforts generate less revenue. Feelings don't usually enter the equation. And in sports, the pecking order gets posted every day when the first team takes the practice field. The backups probably feel terrible about it, but for some reason Pastides doesn't seem to think they need rescue from that fate in the form of mandatory playing time rules.
Emmert likely will make many of the same points, but even the actions that seem conciliatory could be used against him. For example, Emmert led the charge in 2011 for a rule that would allow schools to offer an additional $2,000 stipend to all athletes. That ultimately got shot down as much because of how Emmert tried to pass it — ramming it down everyone's throat via a secretly planned presidential retreat — than because of financial complaints by less wealthy schools. Still, Emmert tried to get athletes more money. That should score him some points, but it might wind up hurting the NCAA's case based on what happened to Pastides on Wednesday.
Pastides is one of the presidents leading the charge for an autonomy plan that would allow the five wealthiest conferences to change NCAA rules to give athletes more money and longer-term healthcare. Hausfeld used the fact that South Carolina can't simply do those things right now — because of NCAA rules — to help bolster the plaintiffs' claim that the NCAA and the schools are a cartel. Expect the plaintiffs' attorneys to try to box in Emmert using the same logic.
It's easy to believe that the Thursday-Friday fireworks of Emmert and Big Ten commissioner Jim Delany on the stand represent the climax of the legal fight between the NCAA and the attorneys who have identified it as a poor man's Big Tobacco. The guys who tout the virtues of amateurism on one hand while scooping cash from whopping media rights deals with the other will get their day in court. But it's not that simple.
This is only the beginning of the fight for the Emmerts and the Delanys of the world. OK, maybe I will use just one sports analogy. The O'Bannon plaintiffs are the 2012 Alabama offensive line. The Jenkins plaintiffs are Eddie Lacy taking the handoff and running downhill.
Can anyone on the side of the status quo make a tackle?