Lawyers challenging NCAA's compensation limits ask for trial-free decision in their favor

Steve Berkowitz | USA TODAY

Lawyers for the plaintiffs in two lawsuits challenging the NCAA’s current compensation limits for athletes on Friday night asked a federal judge to decide the case in their favor without a trial, saying that “new and undisputed evidence” — much of it developed through depositions of top NCAA and conference officials — make it impossible for the NCAA to show that the limits are justifiable under antitrust law.

Known as a request for summary judgment, the filing asks U.S. District Judge Claudia Wilken to issue a permanent injunction that would apply to Division I men’s and women’s basketball players and to football players at Football Bowl Subdivision schools. The injunction would upend the NCAA’s relatively new rules that allow athletes to receive scholarships that can cover tuition, fees, room, board, books and incidental expenses up to their full cost of attending school.

More: Colleges are spending more on their athletes because they can

The system envisioned by the plaintiffs, as outlined in the new filing: “individual conferences and/or schools would be free to make their own independent determinations about how to fairly compensate” the athletes. “If some conferences or schools wish to enact new rules limiting benefits on a justifiable basis, they could do so,” but the injunction would “ensure that (athletes) enjoy the benefits of competition among the individual conferences and schools that the antitrust laws require.”

To buttress their case, the plaintiffs cited from an array of depositions taken from some of college sports’ most prominent executives, including NCAA President Mark Emmert, NCAA executive vice president Oliver Luck, NCAA vice president Kevin Lennon and Big 12 Conference Commissioner Bob Bowlsby. The plaintiffs also attempted to turn a variety of NCAA rules back on the association, including the ones that allowed scholarships to be enhanced to cover the cost of attendance.

The NCAA’s and the conferences’ “price-fixing justification based on their ever-elusive concept of ‘amateurism’ is simply their version of a three-card Monte game in which the line defining amateurism never stays in the same place,” the plaintiffs wrote. The defendants “will not be able to carry their burden to prove that the challenged restraints are necessary to maintain consumer demand” in college sports.

The plaintiffs wrote that no defense witness “has identified any kind of study … into whether their compensation rules have any positive relationship to consumer demand for college sports.”

“Remarkably,” they added, Emmert “testified it was not even his ‘primary objection’ that ‘impact … on audiences either watching the TV’ or attending could be harmed by college athletes being paid beyond (cost of attendance). Rather, the dominant rationale Emmert has discussed with NCAA members is ‘philosophical.' ”

The NCAA and its conference co-defendants now have until Sept. 29 to file their opposition to the plaintiffs' summary judgment motion and to seek one of their own.

"The NCAA and its members are committed to ensuring student-athletes have a meaningful academic and athletic experience. The principle of amateurism is central to that goal and has been upheld by the courts time and again," NCAA chief legal officer Donald Remy said in a statement Saturday afternoon. "We look forward to responding to the plaintiffs' claims and are confident we will prevail."

The plaintiffs cited testimony from Lennon and Bowlsby to attempt to punch other holes in the NCAA’s case. They noted that while the NCAA seeks to limit scholarships to the full cost of attendance and the 9th U.S. Circuit Court of Appeals ruled in the Ed O’Bannon antitrust case that allowing athletes to receive “cash sums untethered to educational expenses … is a quantum leap” that would irreparably damage its particular brand of sports, NCAA rules already allow athletes to receive benefits that Lennon testified are “not related to the principle of amateurism” and not tethered to educational expenses.

As just one example, the plaintiffs cited the gifts that football players can receive for playing in bowl games — and they wrote that Bowlsby testified, “I’m not sure how [gifts provided in gift suites] could be tethered to education.”

The plaintiffs argue that not only has the provision of cost-of-attendance-based scholarships and other new benefits like transportation and lodging for family members of athletes playing in the College Football Playoff or the Final Four has not hurt consumer demand, it also, according to an NCAA expert in the case "may actually 'foster' demand because consumers may feel positively about colleges doing more for students."

Meanwhile, the plaintiffs argue, NCAA rules “ban myriad forms of benefits … that are tethered to education. For example, NCAA rules do not allow schools to offer guaranteed post-eligibility scholarships to complete an undergraduate or graduate degree at a school of an athlete’s choice, or to subsidize vocational training, or to offer financial incentives for academic progress or a degree.”

In addition, wrote the plaintiffs, while the NCAA contends that limiting athletes’ compensation helps to keep athletes better connected to an educational environment than they would otherwise be, in order to “collectively generate billions of dollars in revenues,” the conferences “surrender control over scheduling games to broadcasters.” To back this up, the plaintiffs filed a nearly completely redacted appendix comprising a multi-page table it titled “Defendant Contract Terms”; one column of the table was labeled “Scheduling Provisions.”

Referring to that that table, and again citing Bowlsby’s deposition, they wrote: “Defendants admit that their ‘stated beliefs and [their] actions are too often inconsistent with one another’ due to television- and revenue-driven conditions like ‘[late] 9:48 tip-off[s]’ on school nights, ‘three days of competition in a row’ and a host of other concessions that place TV broadcasters’ needs ahead of athletes.' ”

The two cases were filed separately in different parts of the country. However, because of their similarity they are going through pre-trial proceedings together in front of Wilken, who oversaw the O’Bannon antitrust case and was assigned the first of the two cases.

That case began on behalf of former West Virginia football player Shawne Alston, and is being led by Seattle-based attorney Steve Berman. Alston remains a named plaintiff, but the initial case was consolidated with other suits involving athletes in other sports. According to a revised filing of the suit in July 2014, it now seeks to cover Bowl Subdivision football players, Division I men’s basketball players and Division I women’s basketball players. Although the NCAA and 11 conferences are named as defendants, other Division I schools and conferences are alleged to have been co-conspirators.

In addition to the injunction, this case also sought damages based on the difference between the value of a scholarship under the NCAA’s former rules and the value of a cost-of-attendance-based scholarship. But those claims are part of a $209 million proposed settlement to which Wilken granted preliminary approval in March.

The second case, being directed primarily by New York-based attorney Jeffrey Kessler, was filed on behalf of plaintiffs led by former Clemson football player Martin Jenkins, former Wisconsin basketball player Nigel Hayes and current Wisconsin football player Alec James. It covers football and men's basketball players in the power conferences.