The NCAA-Killing Lawsuit Might Finally Be Here

Sports labor attorney Jeffrey Kessler has filed suit against the NCAA and five power conferences, alleging that capping player compensation at the cost of a scholarship is an antitrust violation. Unlike previous suits, this one does not seek damages. It wants to tear down the NCAA. "We're looking to change the system," Kessler said. "That's the main goal."

The suit names as defendants the NCAA, the ACC, the Big 12, the Big Ten, The Pac-12, and the SEC. The plaintiffs are Rutgers forward J.J. Moore, Clemson DB Martin Jenkins, UTEP TE Kevin Perry, and Cal tight end William Tyndall, though as a class action claim, it hopes to represent all FBS football players and D-I basketball players.

The introduction to the suit, which can be seen in its entirety below, sums the argument up well:

The Defendants in this action...earn billions of dollars in revenues each year through the hard work, sweat, and sometimes broken bodies of top-tier college football and men's basketball athletes who perform services for Defendants' member institutions in the big business of college sports. However, instead of allowing their member institutions to compete for the services of those players while operating their businesses, Defendants have entered into what amounts to cartel agreements with the avowed purpose and effect of placing a ceiling on the compensation that may be paid to these athletes for their services. Those restrictions are pernicious, a blatant violation of the antitrust laws, have no legitimate pro-competitive justification, and should now be struck down and enjoined.

Kessler is the biggest hitter yet in the war against amateurism. He's partially responsible for bringing free agency to the NFL, and has served as outside counsel for both MLB and NBA players in labor battles against their respective leagues. He's joined in this suit by Tim Nevius, once the NCAA's associate director of enforcement.


Here, the full suit. And below that, Jonathan Mahler's column from earlier this month, envisioning a totally hypothetical NCAA-busting lawsuit—one that looks an awful lot like this one.

This Is How You Kill The NCAA

Originally posted at Bloomberg View.

Earlier this week, the lawyers for a former West Virginia University running back, Shawne Alston, proposed a class-action lawsuit against the NCAA and the five power conferences.

The suit claims that the NCAA has illegally capped athletic scholarships at a value below that of attending college. It seeks to recover all of the out-of-pocket expenses that former FBS scholarship players had to shell out to cover their costs of living, and also to reverse an NCAA rule that prevents athletes from receiving an extra $2,000 stipend.

Any lawsuit against the NCAA is a good lawsuit, and this one is certainly well-intentioned. Alston had to take out a $5,500 loan during his "free ride." He deserves to get that money back. But he and the rest of his proposed class deserve a lot more. And even if everything breaks their way in the courts, they're not going to get it.

Here's an only slightly cynical view of what may happen if the suit goes forward: The NCAA and the power conferences will settle. They'll agree to allow schools to cover those additional expenses for scholarship athletes. They'll agree to pay some nominal damages to every FBS scholarship athlete from the last four years. And they'll agree to pay the lawyers something for their trouble. In exchange, the plaintiffs will agree to waive any other claims against the NCAA and the power conferences.


This is more or less what happened when the NCAA faced a similar lawsuit, White v. NCAA, in 2008. It ended with a paltry $10 million settlement—for "bona fide educational expenses"—made available over the course of four years to some 12,000 student athletes. Ramogi Huma, who helped bring the suit as the executive director of the National College Players Association, has said he always regretted that the case settled, and with good reason.

Sure, incremental change is better than the status quo. But what we need, clearly, is a different kind of lawsuit—one that will bring down the NCAA once and for all. What would such a lawsuit look like?

It couldn't be a class action. While class-action suits may promise much bigger paydays in the end, they are necessarily more drawn-out and complicated. The sideshow arguments that go with them — are all the plaintiffs really the same? — only distract attention from the core issue. (In this instance, is the NCAA system illegal?)


No, what we need is a single, well-aimed shot. Imagine, for our purposes, a college athlete, or better yet a high school senior, facing a stack of NCAA documents demanding that he waive all of his financial rights in exchange for the privilege of enriching a university.

The suit on this young man's behalf would not seek damages, which would eliminate the need for complex and expensive damage studies. More to the point, if the plaintiff isn't asking for money, it's much harder (if not quite impossible) for the NCAA to buy its way out of trouble, as it did in the White case.

Instead of seeking compensation, the suit would simply ask the court to rule that the NCAA's caps on student-athlete compensation violate anti-trust laws. It would ask the court to call NCAA "amateurism" by its proper name: price-fixing.


Let's say our imaginary plaintiff wins. Just like that, it would become illegal for schools to collude to restrict athletes' pay, capping it at the value of college tuition. Instead, big sports schools would have to pay whatever the market would bear for current and future college athletes. With that precedent set, lawyers would be tripping over one another to sue for damages on behalf of recent graduates. The NCAA would soon be reduced to a heap of smoking rubble, and the only question we'd be asking ourselves is: How did it remain intact for so long?

Jonathan Mahler is a Bloomberg View columnist. Follow him on Twitter.

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