Four college athletes are going to court to force the NCAA and its most powerful conferences to pay their players — just as the cash-machine basketball tournament known as March Madness tips off.
A lawsuit filed in federal court in New Jersey this week claims the NCAA and its conferences are running a “cartel,” illegally shutting the players out of the ever-increasing billions they rake in from football and hoops.
“Even the most casual observer of these two sports can see it,” said Jeffrey L. Kessler, the lead lawyer for the four. “There’s no semblance that it’s anything but a business except for this idea of ‘Let’s not pay the players.’”
Kessler says the timing is coincidental, but the suit is drawing attention at the start of the NCAA men’s basketball tournament. CBS and Turner Sports are paying the NCAA a reported $11 billion over 14 years for NCAA basketball television rights.
Amateurism under attack
The NCAA’s model of amateurism — which holds that players are students first, athletes second, and thus paying them would undermine the educational mission of colleges — is under increasing pressure.
A former football player for West Virginia sued the NCAA and major conferences earlier this month, arguing that the organizations don’t even cover the full cost of school when they award scholarships.
And the National Labor Relations Board is considering an appeal from football players at Northwestern, who in February asked to be recognized as a union that would have the right to bargain for lifetime insurance for sports injuries.
Also, former UCLA power forward Ed O’Bannon, who now sells cars outside of Las Vegas, has sued the NCAA for a cut of its TV revenue and the money it makes selling the likenesses of current and former players to video-game makers. That case is set for trial in June in California, although the judge has urged settlement talks.
Big money at stake
The suit filed this week by the four players — one a junior, three in their last year of NCAA eligibility — attacks the foundation of the NCAA’s amateur model.
It argues that the NCAA and the conferences illegally restrain competition for players’ services, and engage in “price-fixing,” by capping compensation for student-athletes at tuition, fees, textbooks and room and board.
It points to ever-richer TV deals signed by the NCAA and the conferences in recent years for football and basketball. ESPN is paying $5.6 billion over 12 years just for the rights to a three-game college football playoff, according to court papers.
“The schools will be free to decide how they want to compete, just like businesses”
The NCAA and the conferences earn those billions off athletes’ “hard work, sweat and sometimes broken bodies” — and should have to compete on the open market for the best players, the suit argues.
“This really would change the entire landscape of college athletics,” said Alan Milstein, a prominent New Jersey sports lawyer with expertise in antitrust issues.
The four plaintiffs are J.J. Moore, who plays basketball for Rutgers, and three football players: Martin Jenkins of Clemson, Kevin Perry of Texas-El Paso and William Tyndall of Cal. Kessler’s law firm said they were not available for comment.
Kessler said the suit strikes at “the NCAA’s myth that they have to keep all the players amateurs, and therefore exploit them for their own good.”
Colleges competing 'like businesses'
Besides the NCAA, the suit names the five most prominent conferences as defendants — the Atlantic Coast Conference, the Big 12, the Big Ten, the Pac-12 and the Southeastern Conference. The Big Ten, SEC and Pac-12 declined comment; the other two did not immediately return messages.
The suit asks a jury to lift any restrictions on schools’ negotiating individual contracts with players.
“The schools will be free to decide how they want to compete, just like businesses,” Kessler said. “We’ll have to see what the marketplace produces.”
He has taken on powerful leagues before. He argued the case that helped establish free agency in the NFL, has worked for the unions of all four major pro sports and represented double-amputee Oscar Pistorius in his battle to be included in the Olympics.
A NCAA spokeswoman, Meghan Durham, declined comment. But the organization has argued elsewhere that it is devoted to preserving the concept of amateurism.
Step too far?
Milstein said he believes this case goes several steps beyond the other NCAA lawsuits — and probably a step too far.
“I don’t think anybody wants college athletics to become pro athletics”
He stressed that he is a strong critic of the NCAA, which he described as a “walking, talking antitrust violation,” and supports a system under which college athletes would be paid an hourly wage, just as students working the concession stand are.
They could even be allowed to negotiate their own shoe endorsements, he said, but the suit filed this week would lead to universities’ gambling huge sums of money on high school stars with agents, he said.
“I don’t think anybody wants college athletics to become pro athletics,” he said. “This essentially says the schools are going to compete and pay the highest bidder for the star athletes. I think we’re a long way from that ever becoming an eventuality.”
First published March 18 2014, 2:14 PM