Getting the player compensation band back together

If you’re the NCAA, the hits just keep on coming.

Attorneys for the plaintiffs in a lawsuit against the NCAA and the nation’s top college conferences that challenges the association’s remaining rules regarding athletes’ ability to make money from their names, images and likenesses reiterated in a filing Friday night that athletes are entitled to a share of the billions of dollars in college sports TV revenue not only now, but also reaching back to 2016.

The filing seeks to have the suit certified as a class action, meaning it would be applicable to thousands of athletes rather than only the named plaintiffs…

And if you’re the NCAA, prepare to welcome back some familiar faces.

The case follows the legal trail carved by the O’Bannon and Alston cases, the latter of which ended with the NCAA losing a unanimous verdict before the Supreme Court. The plaintiffs’ lawyers in this suit are among those who were involved in either or both of the earlier cases, led by Steve Berman and Jeff Kessler. (Kessler argued for the Alston plaintiffs before the Supreme Court.) And this case currently is pending before U.S. District Judge Claudia Wilken, who presided over the early phases of the O’Bannon and Alston proceedings.

In the filing, they claim that more than 7,000 college athletes are entitled to damages.

I have the feeling this isn’t going to end well for the schools.

Getting the finger

You’ll be pleased to know our long national nightmare is over.

A lawsuit filed by the parents of a former Georgia football offensive lineman against the University of Georgia Athletic Association and the Board of Regents of the University System of Georgia and others has come to an end after more than two and half years of legal maneuvering.

An attorney for the parents of Cade Mays filed with the State Court of Clarke County on Aug. 25 to “dismiss the action with prejudice.”

A dismissal “with prejudice,” often means the case has been settled by the parties.

Kevin and Melinda Mays were seeking damages after the father’s right pinky finger was partially amputated on the hinge of a folding chair in Sanford Stadium’s club level as he attempted to stand up during a recruiting official visit at UGA on Dec. 15, 2017.

In a statement to the Athens Banner-Herald, UGA athletics said: “We are pleased the lawsuit is resolved, and we wish the Mays family the best.”

No word on whether the chair ever faced internal discipline from Coach Smart.

Oh, my, Miz Scarlett.

Hale Almand, Jr.:  No lawyer is ever going to make a more embarrassing argument in court than I did with my ”We may not be able to make a university student out of him, but if we can teach him to read and write, maybe he can work at the post office rather than as a garbage man when he gets through with his athletic career.”

NCAA and SEC lawyers:  Hold our beers, Junior.

… In repelling previous efforts by college athletes to gain recognition as employees under the FLSA, the NCAA emphasized case law (Vanskike v. Peters) indicating that while the 13th Amendment abolished slavery and involuntary servitude, there is a so-called “slavery loophole” for prisoners and, arguably, college athletes. The key question for the Third Circuit is whether Judge Padova applied the appropriate test in dismissing the NCAA’s motion to dismiss.

McDonald, while referencing a South Park episode that satirized the NCAA and member schools as slaveholders, finds it telling that a core defense against paying college athletes is the slavery loophole. “The fact the NCAA—and now SEC—actually rely upon legal precedent about the 13th Amendment slavery loophole to defend the exploitation of free Student Athlete labor shows, in this case, truth is stranger than fiction.”

And to think some of y’all believe all that plantation talk was over the top.

College football, a target rich environment

BREAKING: UC Regents to discuss UCLA's move to Big Ten next week, "litigation" cited https://t.co/qmrQpDliWk

— Jon Wilner (@wilnerhotline) July 12, 2022

I’m not sure who has it better, Jimmy Sexton, or the trial attorneys who get to clean up the messes the people running the sport make.  It’s a good living, either way.

The NIL Summit

It was just hosted in Atlanta.  David Hale’s summary is pretty spot on.

Another common refrain from many of the NIL Summit’s attendees was a reminder that this is all still new. For all the “what comes next” questions, there were very few answers. NIL has undoubtedly moved college sports away from traditional amateurism, but it’s still unclear whether it’s also a big step toward a pro model. While some experts theorized unionization and collective bargaining was the ultimate end point, few athletes seem to have given this much thought, and several attorneys and agents said the path to unionization would be incredibly difficult, suggesting instead that a group licensing model could be a better fit.

While school presidents and administrators have begged for federal NIL oversight, few in attendance in Atlanta believed that was forthcoming after a recent effort from Greg Sankey and George Kliavkoff to engage Congress resulted in no serious movement.

More likely, said several sources, was litigation that would more clearly define a framework for the marketplace. What happens when an athlete who unwittingly signed over NIL rights to a collective wants out of that contract? What happens when a company decides an athlete hasn’t performed well enough to warrant payment? What happens when the IRS comes calling because they’re not sure why a sports collective needs nonprofit status? The results of potential lawsuits might end up defining what NIL looks like down the road.

No shit. It’s way too early in the process to start drawing any hard conclusions about where this is headed.

By the way, this is what caused Mark Emmert to spend millions on lawyers:

The one constant refrain on money, however, was that much of what has been reported in the media is widely out of step with reality. Yes, some athletes have found deals into seven figures, but that’s incredibly rare. The median return for a social media post, for example, might be as little as $20, while even big-name athletes with large followings rarely land deals in excess of $20,000.

Kinda seems wasteful, but what do I know?

No love lost

Remember how bad the blood got between Alabama and Tennessee when Fulmer was still tromping on the sidelines in Knoxville?  At one point, Fulmer was served with a subpoena in Hoover when he was attending SEC Media Days.

Boys, I’m starting to think we’ve got a worthy successor to that on our hands.

On Monday, Texas A&M declined comment on a report of an email Bjork sent to SEC Commissioner Greg Sankey, obtained by On3.com, the morning after Nick Saban’s controversial comments that A&M had “bought every player” in its top-rated recruiting class through NIL agreements. Co-signed by TAMU President M. Katherine Banks, the letter to the SEC office called for sanctions on Saban to include not only a public apology, but for consideration of a suspension and a fine as well.

The Tuscaloosa News obtained Bjork’s May 19 email, and while the body of the letter was noteworthy, the timestamp on it was downright hard to believe: 10:29 a.m. Here’s your sequencing from College Station that day:

10 a.m.: Fisher’s press conference begins.

10:19 a.m.: Fisher ends his remarks after scorching the most Earth humanly possible in 19 minutes.

10:29 a.m.: Bjork emails letter to Sankey.

Bjork had just heard his coach call Saban a narcissist with a God complex, suggested he should’ve been slapped as a child, and repeatedly called his ethics into question, while offering nothing in the way of specifics. Then he sends an email complaining about Saban’s comments? That’s a little rich. His email further complained that Saban didn’t cite any facts to support his statement, right after Fisher offered none, either, in leveling vague allegations of his own.

You’ve got to think there’s some enraged member of one of those two fan bases ready to take things to the next step, don’t you?  After all, that’s what you get when It Just Means More.  I just can’t decide who serves whom first.

A day late and a dollar short, again

This isn’t about college football, but you can bet the suits running the NCAA are shitting bricks about it.

The Department of Justice, making a request on behalf of three former minor league teams suing Major League Baseball after the league stripped them of their affiliation, asked a federal court Wednesday to limit the antitrust exemption given to MLB.

The three teams suing MLB were among 43 that lost their affiliation when the league downsized the minors to 120 teams in 2020.

MLB has asked that the lawsuit be dismissed, citing the antitrust exemption. In the filing with the U.S. District Court in New York, the Justice Department asked the court to “define the exemption narrowly.”

… In a Supreme Court ruling in 2021, Justice Neil Gorsuch questioned the legal status of baseball’s antitrust exemption, citing the changes in the market since the initial ruling was made in 1922. The Supreme Court has said that baseball wasn’t subject to antitrust rules because it was a series of exhibitions and not interstate commerce.

I can’t think of a more deserving ending to the NCAA’s fruitless pursuit of amateurism, now in the NIL denial stage, than to watch their hopes for a broad Congressional antitrust exemption get nuked by the courts.  After spending millions more defending it, of course.  It’s the way they roll.

A “novel issue” goes to court

For those of you who wondered last week why Louisiana would need to pass a law that would exempt NIL deals from that state’s open records requirements, an answer may be unfolding locally.

The hot topic in collegiate sports known as NIL — for name, image and likeness — was debated Friday in the Oconee County Courthouse.

Superior Court Judge Eric Norris listened as David Hudson, representing the Athens Banner-Herald, and Edward Tolley, the attorney for the University of Georgia Athletic Association, argued about whether the Athletic Association should release documents through the open records act on UGA athletes with NIL contracts.

You can probably guess the arguments each side raises.

Tolley argued student-athletes have a right to privacy and these NIL contracts are made with an independent third party and not the university. The Athens lawyer likened it to the lottery, where a winner can choose to allow his identity to be known or kept secret.

The student athletes are allowed in the negotiations for an NIL to use a “professional representative, athletic agent or attorney,” according to state code.

Hudson agreed the Athletic Association was a private entity, but because it maintains or receives documents on behalf of a public agency, that information is subject to the open records act.

Hudson also cited previous court ruling involving a Macon Telegraph suit that maintains the Athletic Association is subject to the open records act.

Not sure I buy Tolley’s lottery analogy, but what I’m really curious about is whether the suit winds up shedding any light on how much involvement the program has with its players’ NIL deals.

Morehead to the rescue

From Mike Griffith’s slobbering interview with UGA’s president about the NIL “mess” (Morehead’s term, not mine):

School was back in session when the 65-year-old law professor was chased down by media members in a hotel hallway Wednesday to answer the question as to how the NCAA could govern NIL with the threat of antitrust lawsuits.

“You’re making an assumption that whatever guard rails created are ones that wouldn’t survive a litigation review,” Morehead said. “I’m also a lawyer, and I think we can devise rules that have the potential of surviving scrutiny…

Well, shit, Jere.  That’s all you had to say!  It’s a shame the NCAA blew through millions on attorney’s fees fighting O’Bannon and Alston instead of consulting with you from the get-go.

“Screw it! We know we are going to get sued anyway.”

I’m wondering if, when it comes to the NCAA and NIL, we’ve come full circle.  What I mean by that is illustrated by this quote:

But will the conversations with prospects or prospects’ agents really stop? “Somebody is going to have to be made an example of,” says Eddie Rojas, CEO of the Gator Collective. “There are people out there who are straight up ignoring the rules.”

When you’ve got one guy running a collective pointing a finger at others, you know somebody’s out there crossing a red line.  Maybe it’s time for the NCAA to consult with an antitrust lawyer who knows their business and make an example of somebody doing something truly egregious.  Seriously, what have they got to lose?  The states aren’t coming to their rescue.  Neither is Congress.

“At a certain point, the NCAA is going to have to face it,” says Gabe Feldman, a sports law professor at Tulane who’s been integral in NIL matters. “Either the NCAA is going to defend its current model or it is going to have to get protection from Congress so it no longer has to defend its current model. Or its model will be sued to smithereens and it will no longer exist.”

The irony is thick.  After spending a decade wasting millions fighting a losing battle in the courts, now that the organization is faced with what truly looks like an existential crisis, is it going to sit on its hands?  This being the NCAA we’re talking about, probably.