The NCAA and 11 major conferences sought help from a familiar court Friday night, filing a petition with the U.S. Ninth Circuit Court of Appeals to appeal the class-action status of two scholarship cases that want to redefine the NCAA’s limits on compensating athletes.
Two weeks ago, U.S. District Judge Claudia Wilken granted class-action status to the two cases — the Martin Jenkins lawsuit brought by prominent sports attorney Jeffrey Kessler and a similar case from attorney Steve Berman. The plaintiffs allege the NCAA and its conferences violate antitrust law by conspiring to impose a cap on the amount of money a school can provide a college athlete.
In certifying the class, Wilken rejected arguments by the NCAA and the conferences that the issues aren’t common to a wide class. The NCAA and conferences had argued some athletes would benefit more than others by being allowed to get paid beyond their current scholarship value. But Wilken concluded those theories “depend on the assumption that schools could not afford to spend more money compensating all student-athletes rather than cutting payments to some.”
The NCAA and conferences also predicted that an injunction would increase the costs to FBS and Division I schools and some would stop participating at that level or reduce their costs, such as offering fewer scholarships. But Wilken called those predictions “flawed” and wrote that the plaintiffs are not seeking an unrestricted market for player competition.
“Defendants assume that any increase in student-athlete compensation resulting from an injunction would force schools to offset such cost by disadvantaging some members of the proposed classes,” Wilken wrote. “The Court finds insufficient basis for such an assumption, because of schools’ past behavior and alternative available sources of funds.”
On Friday, the NCAA began the process of trying to appeal the certification decision to the Ninth Circuit Court of Appeals, which has proven to be more favorable to the NCAA than Wilken. Wilken was also the judge in the Ed O’Bannon case over commercialized use of players’ names, images and likenesses.
The Ninth Circuit recently upheld Wilken’s decision in O’Bannon that the NCAA violated antitrust laws, but the panel voted 2-1 to eliminate Wilken’s plan that would have allowed schools to provide football and men’s basketball players deferred compensation of about $5,000 per year. Earlier this week, the Ninth Circuit rejected O’Bannon lawyers’ petition to rehear portions of the appeal. Both sides have said they are considering a petition to the Supreme Court.
The scholarship lawsuits received class certification for football, men’s basketball and women’s basketball players in the 11 Football Bowl Subdivision conferences (including the Western Athletic Conference, which no longer exists).
One of the cases was brought by former West Virginia football player Shawne Alston, who is no longer a named plaintiff. That case got certified to seek an injunction to change the NCAA rules, and it also wants monetary damages for the NCAA’s previous rules that until this year prevented cost of attendance stipends to players. Class certification for the damages portion of the case hasn’t been filed yet.
The other case was brought by Jenkins, a former Clemson football player. Two current athletes — Wisconsin basketball star Nigel Hayes and Wisconsin football player Alec James — are also named plaintiffs. This case, led by Kessler, seeks an injunction and not damages.
In the petition to the Ninth Circuit, the NCAA and conferences stated that Wilken improperly shifted the burden of proof from the plaintiffs to defendants, speculated that the effect of the requested relief would not materialize, and ignored controlling legal authority regarding conflicts of interest among the class members.
“In particular, the district court hypothesized that either defendants could protect non-superstar absent class members from the effects of a free and open market by adopting new rules to prohibit schools from reducing or eliminating existing athletic scholarships, or the court itself could impose such rules,” the NCAA and conferences wrote.
In a statement Friday, NCAA chief legal officer Donald Remy said: “The errors in the district court’s decision to grant a class are clear, especially when examining the irreconcilable conflicts of interest among the class members, the failure to protect absent class members who benefit from the current rules and the unprecedented speculation on fashioning of future rules and remedies. This class should never have been certified and we would like the chance to explain the reasons in detail to the appellate court.”
Follow and read more from Jon Solomon on Facebook and Twitter.