“That’s why I’m on this case.”

You’ve read about O’Bannon.  You know about the NLRB ruling.  Now meet Jeffrey Kessler, whose antitrust suit may be the biggest threat of all to college football as we know it.

Kessler is essentially asking the courts to decide that players are employees whose compensation is being illegally constrained (to the amount of an athletic scholarship), and to lift those restrictions to open the market. Under such a scenario, the “total competitive landscape will change,” he says. “Maybe Ohio State will say, we’re going to pay X amount a year, which we’ll put in trust for when they leave school. The more years they stay, the more they’ll get. Another school might not offer more than the scholarship.

“That’s what happens in a market. It doesn’t force the schools to do anything except what they decide.”

And even here, again, comes an invitation to stop the bleeding:

Kessler acknowledges the possibility that a settlement could occur that “puts some system in place” to provide meaningful compensation for all future football and men’s basketball players.

What exactly that would look like is unclear, but he hinted that the sorts of changes that some people within the NCAA are talking about now — in which the wealthier sports programs might offer provide scholarships valued up to the full cost of attendance, or give some sort of small stipend — would not cut it.

While another lawyer without Kessler’s resources and resume might be willing to get a nice payday for his clients, “if I get my class certified, there won’t be any settlement without real change in the system,” he says.

I doubt anyone’s listening now, but it will be worth watching to see if attitudes change should O’Bannon not go in the NCAA’s favor.  My bet is it’ll take Congress not riding to the NCAA’s rescue to shake things up.


Filed under College Football, It's Just Bidness

41 responses to ““That’s why I’m on this case.”

  1. The article makes him look like he has only the best interest of the athletes at heart. He wants 33% of whatever a class action suit gives him. He made it clear that a full-cost scholarship isn’t sufficient and that’s only because 33% isn’t going to fill his firm’s coffers. All the people involved in this like Emmert, the conference commissioners, the unionizers, and the lawyers are such noble people. They all want what’s best for the student-athlete. This whole thing is making me sick. If you believe that, I have some beautiful waterfront property in Ware County to sell you.

    • Deutschland Domiciliary Dog

      Ware County, in fact, abounds in beautiful waterfront property.

    • Hogbody Spradlin

      At least he didn’t say ‘It’s not about the money.’


    • I’m not trying to get in the way of anyone wanting to do some lawyer-bashing, but do you understand how big time Kessler’s antitrust practice is? He can pick and choose cases. There are others he could take that would generate a lot more in fees than this one will.

      • That’s fine if he has a big practice, but the self-righteous, “I’m doing this for the kids” tone is a bit phony to me. Notice he’s suing in New Jersey. Take his action in Ohio (since he specifically mentions tOSU) and see if he wins. He’s doing this for publicity and for the contingent fee.

        • I don’t understand how the choice of venue is related to his motives.

          He doesn’t need the publicity.

          Why shouldn’t he get paid if he wins?

          • Senator, do you really think he wins in Ohio, Texas, Alabama, Georgia Kentucky, or Florida? His choice of venue is a blue state that has no significant college sports. He picks as friendly of a jury as it gets.

            Publicity? During the trial, this guy will be on SportsCenter every night.

            I don’t have a problem with his getting paid if he wins. If there wasn’t big $ available for a contingent fee, would he think this is worth his firm’s time and effort, or would he still do it for the kids? It’s about the money.

            • Deutschland Domiciliary Dog

              But the lawsuit isn’t against the U of …. It’s against the NCAA.

              I don’t think Georgia fans are so much NCAA fans.

              In fact, didn’t UGA successfully sue the NCAA for anti-trust violations just a generation or so ago?

              • I’m certainly not an NCAA fan, but he is indirectly suing the institutions because he wants them to consider athletes as employees. He wants the change at that level. He just wants the money to come from the NCAA. The NCAA is a target that he can get everyone to focus on, but he’s really going after each of the member institutions.

                • DawgPhan

                  Son, we live in a world that has laws, and those laws have to be guarded by men with briefcases. Who’s gonna do it? You? You, internet commenter? I have a greater responsibility than you could possibly fathom. You weep for amateurism, and you curse the lawyers. You have that luxury. You have the luxury of not knowing what I know. That amateurism’s death, while tragic, probably saved lives. And my existence, while grotesque and incomprehensible to you, saves lives. You don’t want the truth because deep down in places you don’t talk about at parties, you want me in that courtroom, you need me in that courtroom. We use words like honor, tradition, loyalty, pride of the old red and black. We use these words as the backbone of a life spent defending something. You use them as a punchline. I have neither the time nor the inclination to explain myself to a man who rises and sleeps under a red and black blanket of the very freedom that I provide, and then questions the manner in which I provide it. I would rather you just said thank you, and went on your way, Otherwise, I suggest you pick up a copy of Federal Antitrust Policy, and sit in a courtroom. Either way, I don’t give a damn what you think you are entitled to.

            • Do I think he can win in a red state? Some of the ones you mention (Alabama, for instance) hate the NCAA more than anything, so, yeah, I can see him winning there. But, again, what does venue have to do with his motives? No matter what, he wants to win the case.

              LOL about SC. He’s not an agent. He’s handled high profile a/t cases against sports leagues. His reputation’s already made.

              If he loses, he doesn’t get paid. I would suggest that to some extent that is doing it for the kids.

              • I understand he wants to win the case. I do think he selected New Jersey to file the case, so he could get the most friendly jury possible. Nothing wrong with that, but just making the comment that the state is blue and has no significant college sports (yes, I include Rutgers in that).

                He’s doing this for his own self-interest (money, publicity, etc.). Once again, I find nothing wrong with that, but the article makes him out to be this crusader. I just question all of that.

                If he’s doing this for the kids, I still say his attention is targeted in the wrong place. He needs to cross the river in north Jersey and have a conversation with Roger Goodell and his attorneys on Park Avenue about their eligibility rules.

                • FWIW, he’s fighting against the case being moved to California. Again, I see how forum shopping matters if you want to win, but I don’t see how it matters to him personally.

                  He’s already sued and beaten the NFL before with an a/t claim. He’s not afraid of Goodell and his attorneys. But he knows that the NFL is immune on the eligibility front as long as it cuts a deal with the NFLPA.

                  • “But he knows that the NFL is immune on the eligibility front as long as it cuts a deal with the NFLPA.”

                    That’s why he suing the NCAA and indirectly the member institutions because that’s where the money is.

                    • Nope. He’s suing the NCAA and the schools because they’re taking advantage of the NFL’s position to engage in price fixing. Which is illegal, last time I checked.

                    • I guess we will agree to disagree on his motives. I don’t think he’s doing this for the student-athlete. If this was about principle, he should have sued years ago before the money in college sports exploded to what it is now.

                      The genie is out of the bottle now. The question is now what solutions could be put into place to solve the problem. The problem is you have attorneys on both sides dug in – one who is saying pure pay-for-play and one who is saying the status quo.

                      Guess who gets the shaft at the end of the day? Student-athletes and alumni/fans …

            • Yeah, he doesn’t want to lose his case. Lawyers are selective with their choice of venue for a reason. He doesn’t have to fight this in every state to win, so why make things more difficult on yourself than they have to be?

      • Hogbody Spradlin

        And, it’s going to be tough to structure the legal fees in this case. The remedy could easily not be ‘damages’, but some kind of restructuring instead. How would the lawyer get his share of that?

        Maybe antitrust laws provide legal fee awards for prevailing plaintiffs.

  2. Hogbody Spradlin

    College sports administrators dealing with the free market? That would be humorous. I get a mental picture of athletic directors begging economics professors to go find the dusty 1960’s editions of their treatises, from when the free market was actually taught in colleges.

    • Gravidy

      I’m not quite old enough to have attended college in the 60s, but I’d be shocked if it was widely taught even then.

      • Normaltown Mike

        You can find it in the Econ dept. I know two profs there and they both say that “the Chicago school” of thought dominates faculties nationwide, with a few notable exceptions.

  3. Deutschland Domiciliary Dog

    The Senator is probably correct that the NCAA won’t compromise on anything until Congress refuses to pull its chestnuts from an open fire.

    Problem is, once Congress “fixes” anything, it’s not so clear the “fix” is better than what was broken.

    To make things worse, the NCAA has a false image of its own public perception. There are plenty of constituent groups influential in both major parties that would have no problem with the courts sticking it to the NCAA.

  4. Go Dawgs!

    The NCAA leadership is so… SO stupid. They could have avoided ALL of this just by giving up a little instead of being so hardline on every single issue of player compensation. Any legislative body that actually considered the distribution of cream cheese to be a competitive issue deserves every last drop of the beating it is now taking.

  5. Dog in Fla

    Who better than Winston Wolff to wage class warfare against Emmert and Remy’s outfit

    “Mr. Kessler is also one of the most prominent lawyers in the country regularly engaged in high-profile sports litigation. He has litigated some of the most famous sports-antitrust cases in history, including McNeil v. the NFL, the landmark antitrust jury trial which led to the establishment of free agency in the National Football League (NFL), and Brady v. NFL, which led to the end of the 2011 NFL lockout. Some Some of Mr. Kessler’s clients in the sports law area have included the NFL Players Association (NFLPA), the National Basketball Players Association, the Arena Football League (AFL) Players Association, the National Hockey League Players Association, the Major League Baseball Players Association, the National Invitation Tournament (NIT), CAA Sports, Wasserman Media Group, SCP Worldwide, the NFL Coaches Association, Players, Inc., the Women’s Tennis Benefit Association, Excel Sports, and Adidas. Mr. Kessler has also represented various classes of NBA, NFL, AFL, and MLS players, the North American Soccer League, the United States Football League, and the Cities of San Diego and Oakland, as well as Alameda County, in various sports law disputes.”