I apologize but I couldn’t resist adding my 2 cents to the NIL discussion.
First, anyone looking at O’Bannon and Alston to try to figure out the legal landscape for NIL and payment of players is potentially at least somewhat behind the curve.
The new case is HOUSE VS NCAA.
The case was filed in 2020 and amended in 2021. The NCAA unsuccessfully sought to get the case dismissed.
The case is in the Federal District Court of Northern California (Oakland).
The case is before U.S. District Judge Claudia Wilken, who presided over O’Bannon and Alston, but is a long way from resolution. Judge Wilken is scheduled to hold a hearing on class certification on May 24, 2023, and a jury trial in Oakland is scheduled for Sept. 26, 2024. With potential appeals, the case could be on the docket well into the 2020s. But time hasn’t been a deterrent to those who seek NCAA reform. Both O’Bannon and Alston took more than six years, and both cases defeated the NCAA.
Co-counsel on the case is Jeffrey Kessler considered the nation’s top sports litigator. He successfully argued the Alston case.
Led by Arizona State swimmer Grant House, Oregon basketball player Sedona Prince and former Illinois football player Tymir Oliver, the consolidated litigation claims the NCAA and its members have illegally conspired, until 2021, to deny both NIL opportunities and pay for college athletes appearing in televised broadcasts. NCAA rules, the players argue, have unduly interfered with the basic tenets of competition and market economies.
If successful, House would lead to an injunction that compels the NCAA to change its rules. It would also bring treble damages—a sizable dollar figure if college athletes should have been paid to be on TV in recent years and if the case is certified as a class action on behalf of tens of thousands of athletes.
Kessler addressed the recent guidance put out by the NCAA.
NCAA leaders have said they failed to anticipate such developments as NIL collectives or all-team endorsement deals, which were never intended to take hold during the interim period. But in Kessler’s mind, these ships have already found their way to open waters.
“The only basis you could have for going after that concern would be some claim that it was necessary to preserve competitive balance,” said Kessler. “But the problem in that argument is that it has already been established that there is no competitive balance in FBS football or Division I basketball. And, if there is no balance, there is no balance to preserve.”
There’s a lot of things the lawsuit attacks but one that really stood out to me is the NCAA’s prohibition about using NIL as a recruiting tool. The lawsuit wants the courts to give the NCAA double Gauldens or the Jordan Beck salute or both regarding its stance on NIL as a recruiting tool.
Kessler, says he is “happily monitoring” the situation surrounding the NCAA’s recent announcement that its Division I Board of Directors had passed specific guidelines aimed at adding enforcement teeth to its nearly year-old interim NIL policy.
“Frankly, I think a lot of this will be talk and very little action, precisely because they know what will happen,” said Kessler.
Kessler maintained that if the NCAA “posts additional restrictions regarding NIL rights,” those restrictions would be challenged under existing claims in the lawsuit. He also contended that other antitrust lawsuits brought by athletes over NIL would likely be brought into House. “We don’t need a new lawsuit,” he stressed, “we already have a lawsuit.” At the same time, Kessler noted that potential antitrust suits brought by boosters and businesses wouldn’t be part of House, which is a players’ case. He added that new cases brought against the NCAA and schools for violating state NIL statutes would have their own trajectories, as well.
The NCAA’s new guidance seems designed to mitigate the risk of litigation. Noticeably, the guideline includes a disclaimer that it “is subject to state NIL laws or executive actions with the force of law in effect.” The guidance also contends it is merely clarifying rules that are already in place, as opposed to instituting new rules.
I think House is probably the Hammer blow to the NCAA as it relates to student athletes and their financial compensation. I think that may also be why we’ve been hearing more scuttlebutt about the P-5 schools in particular taking their revenue sports programs outside of the NCAA. jmo.
Being older as I am, I really hoping I make it to see the outcome of the House case. I love a good fight and I hate, hate, hate the NCAA. jmo.
, and it hurts the real tours. If you wanna watch a bunch of crap exhibition golf with guys making huge appearance money parading as real competition...go for it.
