SBJ/June 23-29, 2014/In Depth

College sports' legal battleground

At no point have more legal challenges been in play that could change the face of college sports. Here’s what to watch as attention shifts from the playing court to the court of law.

With all of the legal challenges the NCAA faces, one thing is for sure: Attorneys and law firms will have a lot of work to do for years to come. As a result, law firms and the NCAA have beefed up their expertise, with the many parties now involved reading like a who’s who in sports law.

Scott Bearby, the NCAA’s general counsel, said the number of cases facing the organization “is basically the same as it always had been.” What’s different, Bearby said on a panel at the Sports Lawyers Association in May, is that the lawsuits in play are striking at rules that have been on the NCAA’s books for decades, and at the NCAA’s contention that student athletes are not employees.

Gene Marsh, former chair of the NCAA’s university compliance committee and a former member of its infractions committee, joined national law firm Jackson Lewis to work on college sports cases, and he agreed with that assessment.

“There has always been a pretty regular stream of litigation,” Marsh said. “But as far as macro lawsuits, global litigations that challenge the overall NCAA model, there never has been a time like now.”

The NCAA is being attacked on four legal fronts, said Gary Roberts, a sports law professor at Indiana University, who formerly worked at Covington & Burling, the NFL’s outside law firm. Those four areas are: antitrust law, labor law, right-of-publicity law, and legal issues pertaining to concussions and other injuries that student athletes suffer (see chart).

The antitrust litigation, which is being heard in federal court in Oakland (see story) seeks to strike down the rules the NCAA has set governing how much student athletes can be compensated.

The concussion litigation involves about a dozen lawsuits that were consolidated in January in federal court in Chicago and are seeking damages for college athletes who suffered head injuries while competing for their various schools.

The right-of-publicity litigation involves whether student athletes should be paid if their likenesses are used in commercial endeavors and involves a case brought by former college and professional basketball player Ed O’Bannon.

The labor legal issue is not before a court at this time, but before the National Labor Relations Board and involves the question of whether Northwestern University football players are employees and can form a union.

All four areas, lawyers say, are “cases of first impression,” meaning the issues have not been determined before in a legal forum. No matter how the cases are decided, lawyers expect there will be appeals, as well as copycat litigation and follow-up litigation.

“With cases of first impression, it’s hard to anticipate all of the additional issues as a result of the ruling,” said Hillary Hughes, a partner with law firm Garvey Schubert Barer, which represents professional athletes. But whatever the courts rule in the key cases, those decisions will likely “be scrutinized and give rise to additional litigation,” she said.

If you look at the four issues, they all address things a worker can expect from an employer in a workplace, said Jon
King, attorney with Hagens Berman. The law firm is involved in lawsuits against the NCAA in four cases involving antitrust law, right-of-publicity law and concussions.

“These four issues all address the rights a worker has in a normal workplace,” King said. “You would expect a safe workplace. You would expect fair wages and that your employer is not colluding with [other employers] on what to pay you. You would expect, if someone put you in an advertisement or video game, that you’d be paid for it.”

Mary K. Braza, co-chair of the sports industry group for law firm Foley & Lardner, which represents professional teams, owners and universities, said she views the concussion litigation as different than the other legal issues facing the NCAA.

“It doesn’t matter if you are an amateur or a professional, if you are a ward of the university, they still have duties to protect you,” Braza said.

“The other three I think are all attacks on amateurism,” Braza said, adding “they all flow from the increasingly enormous sums that are going to the schools as a result of broadcasting and overall popularity of collegiate sports.”

Bringing in the big guns

As the stakes have gone up, the NCAA has lawyered up, hiring some of the best attorneys at some of the most powerful national and international law firms.

The NCAA announced last fall that it had hired Munger, Tolles & Olson to handle trial work in the O’Bannon case,
The NCAA has hired some of the best attorneys at some of the most powerful national and international firms.
Photo by: Getty Images
and former U.S. solicitor Seth Waxman, now of WilmerHale, for future appellate work in the case. Glenn Pomerantz, the attorney who is defending the NCAA in the O’Bannon trial, has represented major television networks, record companies and film studios in copyright and antitrust cases.

Sean Berkowitz is the NCAA’s lead attorney in the concussion litigation in Chicago.
Berkowitz is the global chair of litigation for international law firm Latham & Watkins, and was a former assistant U.S. attorney. He also was the director of the special task force created to investigate the Enron corporate scandal.

Skadden Arps attorney Jeffrey Mishkin is defending the NCAA in antitrust lawsuits brought against the organization that challenge its rules of how much colleges and universities can offer student athletes who will play Division I basketball and football. Mishkin has worked for all of the major leagues and was formerly executive vice president and chief legal counsel of the NBA.

Additionally, the Pac-12 Conference, one of the defendants in the antitrust lawsuits, has hired national law firm Proskauer, which has served as outside counsel to all of the four major leagues in labor negotiations, to defend it in the litigation.

One of the key antitrust lawsuits facing the NCAA, Jenkins v. NCAA, was brought by Jeffrey Kessler, a partner at Winston & Strawn who has served as outside counsel for the NFL Players Association and the National Basketball Players Association.

Kessler’s firm is among those that have bolstered their collegiate expertise with new hires. Late last year, Winston & Strawn brought in Tim Nevius, an attorney and former NCAA investigator, to help start a college sports law practice. Jackson Lewis, a law firm that represents management exclusively in labor disputes, made a similar move this year when it hired Marsh to anchor its collegiate sports practice.

King said it is telling that elite law firms and powerful attorneys with vast experience in professional sports and/or entertainment issues are being engaged.

“It means they are deploying all these law firms to put out fires in all of these courts around the country,” he said. “I view it as a barometer of the major risks and threats that all of these cases pose to college sports.”

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