A federal appeals court ruling in the O’Bannon case does nothing but help a lawsuit seeking an injunction to declare NCAA rules illegal under antitrust laws, attorney
Jeffrey Kessler said last week.
“It helps me on the legal issues significantly,” said Kessler, lead attorney in the Jenkins v. NCAA case, which seeks to overturn the rules prohibiting compensation of all Division I college football and basketball players.
The 9th U.S. Circuit Court of Appeals in a ruling late last month rejected a plan in the case brought by former college basketball star Ed O’Bannon to pay college athletes up to $5,000 for the use of their names and likenesses. But the court found the NCAA rules are not exempt from the antitrust laws.
Kessler noted that the decision rejected the defenses the NCAA asserts in every case.
“It says the NCAA has no exemption from antitrust laws,” Kessler said. “It can’t claim that it isn’t commercial. It can’t claim that its eligibility rules are exempt. They can’t claim the Supreme Court gave it an exemption in the Board of Regents case,” the 1980s case over NCAA control that opened the door to more televised college football.
The NCAA declined requests to interview someone for this story, but sent its statement titled “NCAA lauds elements of O’Bannon appeal ruling.”
The NCAA applauded the finding by the court that the difference between offering student athletes education-related compensation and cash was a quantum leap. “The principle of amateurism was something they recognized at the core of this decision,” NCAA President Mark Emmert said in the statement.
Kessler said the NCAA has focused on that rejection of the $5,000 payment. But that was a factual issue, he said, and isn’t relevant because the facts of the Jenkins case are different than those of the O’Bannon case: The O’Bannon case was about allowing students to be paid for the use of their names and likenesses, but the Jenkins case seeks an injunction against NCAA rules that prohibit schools and conferences from deciding whether they want to compensate their players.
“We are going to have entirely different facts,” Kessler said. “We are going to have different experts. We are going to have different, less restrictive alternatives.”
The Jenkins case is before Judge Claudia Wilken, the same federal judge who ruled on the O’Bannon case. Earlier this month Wilken held a hearing on Kessler’s motion to certify the class to represent all college football and men’s basketball players.
Jeffrey Mishkin, the former chief legal officer of the NBA who is now a partner at Skadden, Arps, Slate, Meagher & Flom, and Scott Cooper, a partner at Proskauer, argued at the hearing on behalf of the NCAA. Neither Mishkin nor Cooper returned phone calls.
 |
New Octagon client Clarkson made the NBA All-Rookie team.
Photo by: GETTY IMAGES
|
Kessler said they argued that there were conflicts of interest in the class because some football and basketball players would do better than others if Jenkins were to prevail. Kessler said they argued, “so therefore, there shouldn’t be a class because the class members have winners and losers.”
Kessler said his response is that the argument is speculative as well as not legally permissible. “You can’t argue that class members are entitled to benefits under an illegal system,” he said.
> OCTAGON SIGNS CLARKSON: Octagon has signed Los Angeles Lakers guard Jordan Clarkson.
At Octagon, Clarkson, a second-round pick in 2014 who was named to the NBA All-Rookie first team in May, will be represented by Chris Emens and Jeff Austin. Clarkson was represented by Excel Sports Management, but that agency cut ties with the player last month, according to media reports.
Liz Mullen can be reached at lmullen@sportsbusinessjournal.com. Follow her on Twitter @SBJLizMullen.
