SBD/March 18, 2014/Colleges

Kessler Files Class Action Lawsuit Alleging Price-Fixing By NCAA, Power Conferences

Kessler called the lawsuit a "frontal attack on the basic unfairness of the system"
Attorney Jeffrey Kessler yesterday filed a class action lawsuit in federal court "against the NCAA and the five richest college conferences on behalf of college football and men's basketball players" that "seeks an injunction to prevent the enforcement of NCAA rules limiting the amount of financial aid players can receive," according to George Schroeder of USA TODAY. The injunction "in essence ... would allow them to be paid." The plaintiffs "accuse the NCAA and five power conferences -- the ACC, Big Ten, Big 12, Pac-12 and SEC -- of 'price-fixing,' creating artificial restraints by capping scholarship amounts to restrict competition." Kessler, a partner at Winston & Strawn and Chair of Antitrust & Competition Practice, said that the filing's intent is to "'strike down the rules that prevent (players) from getting a share' of the revenue generated by college football and basketball at the highest levels." The lawsuit "joins others pending against the NCAA." But Kessler said, "The other fights are on secondary aspects. This is a frontal attack on the basic unfairness of the system." Four players are listed as plaintiffs in the suit: Clemson DB Martin Jenkins, a junior -- who "has eligibility left" -- Cal OL Bill Tyndall, UTEP TE Kevin Perry and Rutgers basketball F J.J. Moore, all seniors who "have completed their college careers." Kessler said that "more current players will be added to the lawsuit, which seeks certification as a class action." The suit "does not seek class action damages, but the four players seek individual damages." The suit is "modeled in part after a 2006 suit, which was certified as a class action but was settled before trial" (USATODAY.com, 3/17).

A SHOCK TO THE SYSTEM: ESPN.com's Tom Farrey wrote the lawsuit is "the most direct challenge yet to the NCAA's longstanding economic model." Kessler said, "The main objective is to strike down permanently the restrictions that prevent athletes in Division I basketball and the top tier of college football from being fairly compensated for the billions of dollars in revenues that they help generate. In no other business -- and college sports is big business -- would it ever be suggested that the people who are providing the essential services work for free. Only in big-time college sports is that line drawn." Kessler added, "We're looking to change the system. That's the main goal. We want the market for players to emerge." Farrey wrote the suit "highlights the willingness of players to challenge the once-feared NCAA," following the "launch of a union movement at Northwestern" in February led by former NU QB Kain Colter (ESPN.com, 3/17). Kessler: "We believe that the business has grown so big in Division I men's basketball and in the football championship series system that we believe that judges, jurors, the public, the media and many in college sports themselves recognize that change has to come" (WALL STREET JOURNAL, 3/18).
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