What does the Kessler antitrust lawsuit vs. the NCAA mean? Michael McCann explains
A high-profile attorney filed an antitrust suit against the NCAA on Monday, presenting another challenge to the organization's longtime model of amateurism.
Sports labor attorney Jeffrey Kessler filed an antitrust suit against the NCAA and the five power conferences in which he argued that the value of student-athletes has been unlawfully capped at athletic scholarships. In reporting the suit, ESPN's Tom Farrey described the antitrust suit as "the most direct challenge yet to the NCAA's longstanding economic model." Kessler has significant experience in sports labor cases, having played a key role in the establishment of free agency rights in the NFL, and lockouts in both the NFL and the NBA.
What does this new legal pursuit mean for the NCAA going forward? Campus Union caught up with SI.com legal analyst Michael McCann to find out.
SI: How significant is Jeffrey Kessler's lawsuit in comparison to other legal challenges facing the NCAA, such as the Ed O'Bannon case?
Michael McCann: I think it’s a big deal because it involves current players who are essentially asking for the right to become free agents. Basically they’re asking for a world where college athletes are like college coaches: They can sign with any college that pays them the most money. That’s a very different model from the college sports that we all know. It’s a lawsuit that tries to drive a stake into the model of college sports that we’re all familiar with.
SI: Much is being made of Kessler's involvement with this suit, given his experience in legal situations with both the NBA and the NFL. What's the takeaway here?
MM: It’s a significant development that Kessler is the primary lawyer in this case. He has a track record of some success. I think he has his share of critics, but his major success was the Freeman McNeil case against the NFL in 1992, which helped establish free agency rights for NFL players. Critics, of course -- especially those connected to the NBA and the NFL -- would argue that Kessler's advice to players during those lockouts was not successful. I know that some NBA executives are not big fans of his.
But it’s significant in that Kessler has the reputation and probably the financial wherewithal to litigate this for a while. Some lawyers don’t have the resources to have a very long case, if they’re spending a lot of money on discovery, drafting documents and whatnot. Kessler and his firm have the wherewithal to play this out for a while.
SI: Kessler's suit is already being compared to that of Shawne Alston, a former West Virginia football player who filed an antitrust suit against the NCAA earlier this month. Are these two cases similar?
MM: They are very similar. The similarities are that both lawsuits are bringing antitrust arguments against the limits on scholarship. Both of them are arguing that the NCAA and member schools of conferences have joined hands in an anti-competitive way to limit what players can get. That point is essential to both lawsuits.
It’s also worth noting that while the Alston complaint expressly asks for money damages, it also asks for an injunction. So the two suits are similar in that regard as well. They’re both asking for a judge to say, "This system is unlawful."
SI: What does an injunction mean for both cases?
MM: Basically you can ask for two things in a lawsuit: The first is money for past harm, like if I made a video game with you in it without asking your permission. The other thing is an injunction, so you can ask the judge to command some action, such as asking the judge to say, “You, the NCAA, cannot use this rule.” Kessler’s lawsuit is only focused on getting a judge, by decree, to end amateurism. It wants a judge to say student-athletes can sign for any amount of money that the market dictates with a school. So star players could get a lot more in this world than they currently get.
SI: Kessler's lawsuit includes a handful of current student-athletes as well as former ones. Is that important for his case?
MM: It’s significant in that it builds a stronger case for an injunction. These players are currently impacted by these rules, as opposed to Alston and potentially others who come to his case, who are former players. So, in that regard, it’s a stronger argument because they are currently being harmed, allegedly, by these rules.
SI: Northwestern made news a few weeks ago when a group of players joined in an effort to unionize. The efforts are ongoing, but how might these two cases affect one another?
MM: They’re on separate tracks, this lawsuit and the unionization effort. But they're related in the sense that, if college athletes were in a union, they may be able to demand higher pay. It may be easier, you could say, for college athletes to get more money as a form of compensation if they were in a union than if they were independent persons. But that’s sort of speculative. The cases are very different.
Of course, you could argue that if you’re a star college player, maybe you don’t want to be in a union. If there were a union of college athletes, it could potentially negotiate collective bargaining agreements with the NCAA. That could create limits on scholarships all over again. But the unionization effort is unlikely to prevail.
SI: It's important to note Kessler's antitrust suit is not calling for specified compensation for NCAA student-athletes, correct? His suit only calls for restrictions on compensation to be taken away.
MM: That’s exactly right. Kessler wants to eliminate caps on scholarships, not guarantee pay for players. So some players may end up with less. And also, this could lead to a system -- and I think the NCAA would argue this -- that is anti-competitive in its own right because some schools could afford to pay more, and therefore resources could be hoarded by some schools. It could make college sports prohibitively expensive for universities that don’t have the budgets of other schools.
SI: Could Title IX throw a wrench into Kessler's legal efforts against the NCAA?
MM: I think it’s definitely a factor. It’s not part of the lawsuit; it’s a separate legal issue that would have to be resolved because in a world where star college athletes can obtain their market value, men in all likelihood would disproportionately benefit. That could lead to imbalance in gender equity in college sports. You would have star college basketball players -- predominately men -- who are getting paid a lot more money than female athletes. There would likely be a Title IX challenge to a world without scholarship caps.
SI: Where does Kessler's lawsuit go from here? What is the timeline for any sort of resolution? MM: It’s going to be a while. At least months, but more likely longer. The NCAA will file an answer to this complaint. Of course, how it responds to the Alston lawsuit will be a great preview of how it will respond to this lawsuit. The NCAA will likely mention several cases that have come up in the past for this issue, such as the Agnew v. NCAA case that I wrote about previously. I talked about the defensive strategy in that case, and the NCAA is going to make the same core arguments in this case.