When the O’Bannon ruling came down, I noted that the big challenge going forward for Jeffrey Kessler would be dismantling the one argument made by the defense that Judge Wilken accepted – that there is some level of student-athlete compensation that would adversely affect college athletics’ business model.
It sounds like Kessler is going to have to deal with that issue sooner than later.
The NCAA and a group of 11 Division I conferences on Thursday filed a motion to dismiss lawsuits challenging the NCAA’s scholarship limits, arguing the claims contradict a ruling from the same judge in the Ed O’Bannon case…
“Plaintiffs seek to be compensated immediately for their participation in intercollegiate sports in an unlimited amount based on their individual athletic ability or the quality of their individual performances,” the NCAA and conferences wrote. “Such a claim is entirely inconsistent with (Wilken’s) decision in O’Bannon. Indeed, plaintiffs contend that defendants would still be liable for antitrust violation if … they adopted the very student-athlete compensation limits” that Wilken approved in O’Bannon.
While this is the crux of what Kessler has to overcome to win, I don’t think it’s necessarily the end of the world for the schools and the NCAA if Wilken denies their motion. She may simply be wanting to see what kind of evidence Kessler can marshal in support of his position. As to whether she comes ultimately to a different conclusion than she did in O’Bannon, that’s probably not a big concern for her, because if Kessler wins, that result will essentially supersede the earlier ruling, anyway.