THESE ARE uncertain days for the NCAA, from the unannounced vote by Northwestern football players to unionize to the Aug. 8 federal court ruling stating that players have a right to be compensated for their names, images and likenesses. Nothing, however, looms as large as a likely federal court showdown in the fall of 2015 in New Jersey. Last March, a suit was filed on behalf of all Division I basketball and football players against the NCAA and the five most powerful conferences, effectively challenging their claim of amateurism.
"This," says a Pac-12 athletic director, "could be the big one."
The lead plaintiff is Clemson cornerback Martin Jenkins. Certainly he doesn't have the wattage of Ed O'Bannon, the former UCLA basketball star and NBA forward who headlined the landmark lawsuit that was decided last month. But what has raised the stakes and rattled the NCAA pooh-bahs in this antitrust case is the name of the plaintiffs' chief attorney, Jeffrey Kessler.
Kessler has been fighting sports leagues since the 1970s. He helped bring about NFL free agency in 1992, and as outside counsel to the NBA players' association, he has figured prominently in each of the league's labor fights over the past two decades.
In an interview with SI last month, Kessler said it is both "grossly unjust" and "illegal" for the NCAA member schools to generate hundreds of millions of dollars in the two main revenue sports without at least giving individual schools the opportunity to decide whether to share some of that money with the athletes. On the same day the O'Bannon decision was announced, the NCAA granted the schools of the ACC, Big Ten, Big 12, Pac-12 and SEC the right to decide how much, if at all, of a stipend to offer student-athletes, but Kessler doesn't think that goes far enough.
The theory behind the Kessler case is that the restriction against paying athletes is a naked restraint of trade without an offsetting justification strong enough to support it. The lawsuit seeks an outcome that would likely rock the foundations of college sports: an absence of restraint from competition. In short, Kessler wants a truly open market, meaning that high school athletes could field offers and sign with the highest bidder.
Before filing the suit last October, Kessler's firm made a potentially crucial hire, bringing aboard Tim Nevius. He knows his way around college sports, both as a former D-I baseball player and as a lawyer who spent five years in the enforcement division of the NCAA.
The defendants will be filing a motion to dismiss shortly. That's a standard move that is unlikely to prevail given the O'Bannon verdict, which was issued by U.S. chief district judge Claudia Wilken, who will oversee the preliminary legal skirmishing in Kessler's case. Then, assuming it is not dismissed or settled, the case will be tried before Judge Freda Wolfson in New Jersey.
Chastened by the O'Bannon ruling, the NCAA is considering asking Congress for an exemption from the antitrust laws, much as the NFL and Major League Baseball enjoy—though, in the case of the latter, it was bestowed by the Supreme Court. Kessler is not worried. "It's difficult for Congress to agree on anything these days," he says. "But Democrats and Republicans can certainly agree that any system under which a coach can make $6 million, an athletic director $2 million and the athletes can't get [cab] fare is not likely to attract a groundswell of support."