Category Archives: See You In Court

Donald Remy may be gone, but his spirit lives on.

The NCAA gets smacked in court.  Again.

A federal judge in Pennsylvania on Wednesday denied the NCAA’s request for dismissal of a lawsuit that seeks to have Division I athletes classified as employees of their schools who are entitled to hourly wages.

The ruling was the second in four weeks in which U.S. District Judge John R. Padova refused to dismiss the NCAA from the case. In the first, Padova ruled that lawyers for the plaintiffs had met the basic standard of plausibly alleging that athletes “are employees … for purposes of the” Fair Labor Standards Act (FLSA).

Ominously,

… under an amended complaint that Padova is allowing the plaintiffs to file, a new set of schools will be added to the case, including the University of Oregon, the University of Arizona, Notre Dame, Duke and Purdue.

Plaintiff’s counsel does a good job of boiling down his clients’ position to this:

And he contends that the evidence will show that “anytime a student does non-academic work that benefits the university,” the student gets paid. “If the student showing you to your seat or selling you popcorn meets the standard” of being an employee, then “the students who are at the heart of the enterprise” do, as well.

Cue the NCAA’s patented whistling in the dark.

The NCAA said in a statement Wednesday night: “The ruling is based on a preliminary view of the plaintiffs’ allegations, and we are confident that when the court has a chance to see the actual evidence, it will agree with the many previous courts who have held that student-athletes are not employees.”

It’s as if Alston never made it to the Supreme Court.  Oh well, as long as they keep paying the lawyers’ bills…

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How’s that whole “revered tradition of amateurism” thing going?

I forgot to mention this yesterday, but there’s a federal judge who just refused to dismiss out of hand the idea that college athletes are employees of the schools they… well, work at.

Here’s the money graf, so to speak.

Gasp!  You mean to say schools aren’t doing it for the kids?

Maybe this is a tempest in a teapot, sure, but, then again, it probably would be prudent at this point to remember Kavanaugh’s concurrence in Alston before jumping to conclusions.

Read the entire Twitter thread and judge for yourself whether this thing has real legs to it.

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Dear Idiots,

You’ve got to hand it to the Alliance geniuses.  One day in, and they’re already making enemies.

Maybe all the PR bullshit wasn’t such a good idea, eh?

Meanwhile, Greg Sankey’s all “if you don’t hang out with the other mean kids, you can’t violate antitrust law”.

Roll Safe GIFs | Tenor

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Filed under ACC Football, Big Ten Football, Pac-12 Football, See You In Court

The cost of doing (their) business

Well, ain’t this a kick in the pants.

The NCAA has told its 32 Division I conferences that they are on the hook for 90 percent of the $37.9 million in Alston plaintiff’s legal fees accrued during the landmark U.S. Supreme Court case, according to a confidential August 4 memo obtained by On3 Sports that the NCAA sent to all Division I conference commissioners.

The three-page memo details that the 11 co-defendant conferences are required to pay 64.2 percent of the fees ($24,355,875). The 21 conferences that were not co-defendants in the case still are required to pay a combined total of 25.8 percent of the fees ($9,773,233). The NCAA Board of Governors accepted a recommendation that the association will pay 10 percent ($3,792,123).  [Emphasis added.]

You’re a conference that wasn’t even part of the lawsuit and the NCAA is telling you that you have to pony up and your group has to put in more than twice what it’s contributing?  And that the NCAA will put less in the pot than it paid Emmert and Remy, the architects of the legal disaster they’re asking you to help pay for?  If that’s not chutzpah, I don’t know what is.

If I were one of those commissioners, it sure would be tempting to go all Michael Corleone on the NCAA.

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This program was made possible by support/contributions to plaintiffs’ counsel by Mark Emmert.

Shot.

Chaser.

That this is reality now is only thanks to the NCAA’s strategic blunder to appeal the Alston case to the Supreme Court.  That decision may not be as doomed as getting involved in a land war in Asia, but it’s close.  Well played, Mark.

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Kessler, on his victory lap

Compare this Q&A with Alston’s winning attorney to the nonsense Emmert spewed:

SI: What’s your response to the schools that say: This is going to turn into an arms race, and sorry, we don’t have $5,000 worth of computer equipment and iPhones and other educational benefits to bestow on our students, we just don’t have the resources?

JK: So, it’s an argument that sounds good, and makes absolutely no factual sense. And, the reason is, that arms race exists today. It exists when Alabama pays each of its strength and conditioning coaches $550,000 per year. It exists when these schools spend $150 million on some palaces for the athletes to live by themselves and have their own billiard rooms and gold-plated locker rooms, of which you can’t possibly imagine. There is no equality of competition in college sports now. There are the rich and there are the not rich. And, that’s not going to change today. But what will change is instead of Nick Saban making $11 million, maybe he’ll only make $9 million and the athletes will benefit from the difference.

SI: What excess did you come across that offended you the most?

JK: The spending is not what offended me the most. What offended me the most in this record is how the athletes are treated. It’s the fact that the average BCS football players and Division I basketball players work more than 50 hours a week for their schools, before they attend a single class. That they’re told not to pursue majors or classes that they’re interested in because it will conflict with the team. That their first priority is to support their team, not to be students. And then they come in and say, “Oh but we can’t let you have any benefits because you won’t be integrated as students in the campus.” It is so offensive. It is so exploitative. And let’s not forget that the majority of football and Division I basketball players are students of color. That’s what offends me the most.

“But what will change is instead of Nick Saban making $11 million, maybe he’ll only make $9 million and the athletes will benefit from the difference.”  Ditto for the administrators.  That’s what the amateurism fight has been about.  Despite the money rolling in, the suits don’t want to share.  They never have.

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The NCAA’s next nightmare

The ink is barely dry on Alston, and the NCAA is already getting slapped around on something else — by Judge Wilken, as a matter of fact.

The NCAA’s legal problems regarding its limits on compensation for college athletes continued Thursday, when a federal judge denied its request to dismiss a lawsuit that not only challenges any limits on athletes’ ability to make money from their name, image and likeness, but also brings into play the prospect of athletes getting money from college sports TV rights fees[Emphasis added.]

… In addition to asking that the NCAA be prevented from having association-wide rules that “restrict the amount of name, image, and likeness compensation available” to athletes, the suit also seeks unspecified damages based on the share of television-rights money and the social media earnings the plaintiffs claim athletes would have received if the NCAA’s current limits on NIL compensation had not existed.

Such a damages award would be in the hundreds of millions of dollars and, under antitrust law, the basic award would be tripled.

It’s a long way to the finish line, but let’s just say at this point, Emmert’s probably willing to crawl from Indianapolis to DC on his hands and knees to get that antitrust exemption.

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Your post-Alston primer

I saw a lot of apprehension based on misconception in yesterday’s comment thread about the SCOTUS’ Alston decision, so I thought I’d devote a post to what the case means now and where it might lead to.

First, it’s important to note what the decision is exactly about.

The Supreme Court handed down a heavily caveated victory for elite college athletes on Monday. The immediate impact of the Court’s unanimous decision in National Collegiate Athletic Association v. Alston is that many elite student-athletes will receive additional education-related compensations, such as additional scholarship money.

To make it even more limited, that amount was capped by the trial judge at $5900 per athlete, per year.  To give you some perspective on the impact of that amount, try this.

Now, before you cry out “but what about the schools that can’t afford to pay that?”, keep in mind that this isn’t a mandate.  The relief sought by the plaintiffs was simply to prevent the NCAA from imposing limits on education-related benefits athletes can receive for playing college sports (and, as you can see, there is still a financial limit in play).  To put it in other words,

It’s a free market, competitive adjustment.  And it’s specifically tailored to education benefits.  That’s what Alston means in the immediate sense.

That being said, it’s also true there’s a bigger impact from it than just those particular benefits.  The NCAA got smacked in the face, hard, about its belief that it was immune from antitrust law.  As Gorsuch put it in the court’s unanimous ruling,

… to the extent that the NCAA “means to propose a sort of judicially ordained immunity from the terms of (antitrust law) for its restraints of trade—that we should overlook its restrictions because they happen to fall at the intersection of higher education, sports, and money—we cannot agree.”

In other words, the SCOTUS told the NCAA that if it and the schools want antitrust immunity, seek it from Congress, not the courts.  The NCAA’s problem is that right now, it’s naked.

Now, a lot of attention is being paid to Kavanaugh’s stinging concurrence.

In a concurring opinion, Justice Brett M. Kavanaugh wrote: ” … there are serious questions whether the NCAA’s remaining compensation rules can pass muster under ordinary” antitrust legal analysis. Kavanaugh added that the NCAA “must supply a legally valid” justification that “its remaining compensation rules” have sufficient value to promoting competitive balance and that the benefits outweigh the harm being done to the athletes.

“As I see it, however, the NCAA may lack such a justification,” Kavanaugh wrote.

The NCAA and its attorneys have tried yawning past that.

It’s like force of habit for them.  And, sure, it’s not like they have much else they could say, but while Kavanaugh’s opinion doesn’t have the weight of a full court ruling behind it, it’s certainly a warning about the road the NCAA takes from here.

The lower courts struck down the NCAA’s limits on education-related compensation for athletes, but left in place other limits on compensation — and the Supreme Court upheld this baby-splitting result in Alston.

But, as Gorsuch notes in his opinion, a major reason why the Supreme Court did not go further is that the plaintiffs did not ask them to do so. As he writes, “the student athletes [did] not renew their across-the-board challenge to the NCAA’s compensation restrictions” when their case reached the Supreme Court.

Although the full Court did not weigh in on whether elite student-athletes should be entitled to more compensation than the Alston opinion requires, Justice Brett Kavanaugh wrote a separate concurring opinion where he argues that “the NCAA’s remaining compensation rules also raise serious questions under the antitrust laws.”

As Kavanaugh writes, “the NCAA’s business model would be flatly illegal in almost any other industry in America.” Among other things, the NCAA “controls the market for college athletes;” it “concedes that its compensation rules set the price of student athlete labor at a below-market rate”; and it “recognizes that student athletes currently have no meaningful ability to negotiate with the NCAA over the compensation rules.”

That’s exactly the sort of iron grip over pricing that antitrust laws are supposed to prevent.

It remains to be seen whether Kavanaugh’s opinion will someday become the law, but it will likely signal to student-athletes that they should consider filing a new lawsuit challenging the NCAA’s remaining restrictions on compensation.

Given the NCAA’s track record in such litigation…

… you’d think that would freak the membership out.  It also presents an opportunity for them to get their heads out of their collective ass.  (History defying as that may be, I know.)

Will they take it?  College athletes’ NIL compensation presents an immediate test.  Early results are muddy.

… A group of six conference commissioners, three from the Power 5, are encouraging the DI Council to scrap its long-readied NIL proposal and instead adopt an alternative plan. Under the plan, the NCAA would exempt itself from NIL completely. Schools in states with an NIL law may follow that law without penalty, and schools located in states without a statute are granted permission to each create and administer their own NIL policy, as long as they use two guiding principles: no pay for play or recruiting inducements.

The latest revelation has further delayed the long-awaited NIL vote and hurtled high-level administrators into a space of disagreement during the 11th hour of a process that began two years ago.

“In hindsight, I’m saying ‘S—, why didn’t we act on this in January?’” says one NCAA decision-maker. “We’ve done it to ourselves. Everybody has their own agenda. If we come out of this without doing anything, we are dysfunctional.”

“What a mess,” says another, both granted anonymity to speak with SI. “That’s exactly the right term. It’s a mess. If it doesn’t pass, you’ve got chaos.”

To summarize,

“This decision not only puts at risk any new legislation that might be put forward on NIL, but it puts at risk all restrictions the NCAA has on athlete compensation,” says Gabe Feldman, a Tulane law professor and expert on NIL matters.

The NCAA’s long-constructed NIL legislative proposal is rife with athlete restrictions. Most notably, the proposal prohibits athletes from using school marks and logos in endorsements, outlaws them from using school facilities for NIL activities and bans them from using university-provided content in NIL ventures.

“I don’t know how you can read the Supreme Court decision and not be concerned about being overly restrictive,” says one member of the DI Council. “It should cause everybody to take a deep breath. The proposal establishes restrictions.”

Or, if you prefer the tl;dr version:

“It feels like the NCAA is between three rocks and four hard places,” Feldman says. “There are so many forces closing in on them.”

It’s a mess of their own making.  Alston took seven years to resolve!  Mark Emmert’s had plenty of time to settle for something the schools could have lived with and it likely would have been less than it’s going to take to settle now.  Congress may not be populated with a bunch of rocket scientists, but one thing you can say about most politicians is that they know how to leverage a favorable situation.

Sen. Maria Cantwell, as the chair of the Commerce Committee, the most powerful lawmaker in the NIL debate, says the court’s decision “gives new urgency” to negotiations. Sen. Richard Blumenthal, at the center of negotiations, told SI that the ruling is “a gigantic kick in the butt” for congressional talks and that it’s possible an agreement can be reached by the time lawmakers break for August recess.

“It clears away the myth of amateurism,” he says. “Unanimous Supreme Court decisions are rare, particularly for this court. There will be additional force as a result of this one. ‘Force’ meaning not only legal persuasiveness, but also practical support for athletes rights.”

The NCAA is going to have to sue for terms.  They’re likely to get some form of an antitrust exemption, but they’re going to have to give up quite a bit to get it.  What they’d best hope is that they’re not playing the role of Germany in the Versailles Treaty.

Needless to say, this still has a long way to go from here.

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Filed under Political Wankery, See You In Court, The NCAA

9-0, bitchez

The Alston ruling is out, and if you’re the NCAA, it ain’t pretty.

No, this doesn’t mark the end of amateurism, since that was not what Alston was about.  But there’s only so many times a door can get slammed in your face, by the public, by state governments, by the courts and soon to be by Congress, before you get the message you can’t go inside anymore.

The decision the NCAA made to appeal Alston has proven disastrous for them.  Where now?  Sadly, I suspect the NCAA doesn’t have the first clue about what to do, other than continuing to procrastinate.

Meanwhile, the Supreme Court of the United States just declared it’s open season for antitrust lawyers on the NCAA.

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UPDATE:  This part from Kavanaugh’s concurrence, where he roasts the NCAA’s manipulation of the romance of amateurism, is just brutal.

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UPDATE #2:  More Kavanaugh.

If I didn’t know any better, I’d say he’s been reading the blog.

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UPDATE #3:  And, of course, the take you’ve been waiting for.

The man doesn’t miss.

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UPDATE #4:

In other words, they got nothing.

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Alston goes to the Supremes.

If the NCAA felt good about its chances of having the Ninth Circuit’s ruling in Alston overturned — after all, it’s not a stretch to assume the SCOTUS wasn’t taking the appeal simply to pat the 9C on the back for a good job — it probably doesn’t feel that way after the line of hostile questioning its side took yesterday.

In many respects, the justices hammered the NCAA. They pried into the organization’s amateurism policy, criticizing a model that allows coaches, administrators and executives to make millions while “the workers,” says one justice, go unpaid. Several justices questioned the merits of the NCAA’s grievances, referring to them merely as “complaints” that shouldn’t be before the court in the first place. After all, asked Justice Brett Kavanaugh, what’s an extra $5,800 per athlete when executives make billions from television revenue?

“Schools are conspiring, agreeing with competitors, to pay no salaries to workers,” Kavanaugh said. “It seems somewhat disturbing.”

In one of the most significant and maybe stunning moments, Clarence Thomas, another conservative justice who experts say rarely speaks up during cases, prodded Waxman over million-dollar coaching salaries.

“It strikes me as odd,” he said, “that coaches’ salaries have ballooned and they are in the amateur ranks, as are the players.”

Later on, Thomas showed his affinity for the college game, citing the “transfer portal” during one question.

The justices seemed to agree that the NCAA provided no evidence in its filings to suggest that fans would be less interested in college sports if athletes receive greater benefits, striking at the heart of the organization’s case.

On the other hand, several of the justices seemed uneasy about the consequences of siding with the plaintiffs.

Addressing acting solicitor general Elizabeth Prelogar, who joined the arguments for the plaintiff because the Justice Department has taken a position on the case in their favor, Justice Sonia Sotomayor said: “I’m not sure that you have given me comfort on some of the questions that my colleague, the chief justice, asked, which is, ‘How do we know that we’re not just destroying the game as it exists, meaning we’re being told by Mr. Waxman that all of these educational-related payments can become extravagant and, as a result, be viewed by the public as pay for play?’ ”

Or, as Justice Elena Kagan called it during questioning of Kessler, “the kind of floodgates argument – like what’s next? (Athlete compensation) is just going to go up and up and up, and pretty soon it will just be a regular labor market.”

It’s a mug’s game to rely on oral arguments to predict the outcome of the case, so I won’t even try to go there.  Dellinger outlines the four most likely outcomes:

A decision is likely to come in one of four forms: (1) a narrow plaintiff ruling that upholds broader amateurism policies; (2) a more broad plaintiff ruling that destroys the amateurism defense and cracks the door for more legal challenges to the NCAA model; (3) a narrow ruling in favor of the NCAA that strikes down the lower courts’ decision; (4) a more broad NCAA ruling that upholds the amateurism model.

My feeling is that, intellectually, the Court knows the NCAA’s position is untenable.  However, emotionally, there is some sympathy for the abstract notion of amateur athletics that’s tugging at the justices.  Combined, that suggests to me whatever comes as a ruling (probably not until mid-summer) will likely be more narrow than not.

If anything surprised me about the questioning yesterday, it’s how well informed most of the justices appeared to be about the issues and, specifically, about how the NCAA and the schools manage college football.  We’ll find out in a few months where the SCOTUS is letting amateurism head.

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