NCAA denied bid to have two lawsuits dismissed
OAKLAND — A judge on Thursday declined to dismiss two lawsuits against the NCAA and a group of major conferences, either of which could eliminate compensation limits to athletes in some sports and one of which is seeking hundreds of millions of dollars in damages.
U.S. District Judge Claudia Wilken denied a motion from the NCAA and the conferences to have the Shawne Alston and Martin Jenkins lawsuits thrown out, citing notable differences between these two cases and the Ed O'Bannon antitrust case in which she ruled earlier this year.
In the O'Bannon case, plaintiffs were seeking to make it possible for Bowl Subdivision football and Division I men's basketball players to receive enhanced scholarships and compensation in exchange for playing and the use of their names, images and likenesses. Wilken ruled that beginning in 2016-17 schools can offer scholarships that cover the full cost of attending school as well as deferred compensation for the athletes, no more than $5,000 per year.
The Alston and Jenkins cases -- the latter of which is more commonly referred to as the Kessler case in reference to lead attorney Jeffrey Kessler -- seek, among other things, to allow athletes to receive greater compensation for their athletic services and is not tied to the use of names, image and likenesses.
The Alston case covers football, men's and women's basketball players. Like the Jenkins case, it seeking an injunction against the NCAA's compensation limits. However, it is additionally seeking class-wide monetary damages based on the difference in the value of the NCAA's current definition of a scholarship — basically tuition, fees, room, board and books — and the actual cost of attending college.
The NCAA and the five power conferences are named as defendants in both suits, each of which seeks a differently worded injunction that would upend the NCAA's current definition of a scholarship. The other five Bowl Subdivision conferences and the Western Athletic Conference are additional defendants in the Alston suit.
Alston is a former West Virginia football player while Jenkins is a senior defensive back at Clemson.
"This is not just about (name, image and likeness) anymore," Wilken said before issuing her ruling to let the cases continue. "This is a damages claim, the other one wasn't. This one includes women, the other one didn't. This one includes a lot more defendants, the other one didn't."
The NCAA had argued that Wilken's ruling in the O'Bannon case was grounds for dismissal of the two lawsuits currently at hand.
"They're asking you to find what you already found opposite," said Jeffrey Mishkin, a lawyer for the defense. "The position that the plaintiffs are urging upon you is that if the NCAA complies fully with the O'Bannon injunction and sets a limit only above where you said we could -- and you eliminated all of the unreasonable elements -- if we do that and comply fully, we are still anti-trust violators. That does not seem plausible to us."
It was an argument that fell on deaf ears during the 45-minute hearing.
"The O'Bannon loss for the NCAA does somehow not turn into a victory here today," said Steve Berman, co-lead counsel for the plaintiffs in the Alston case. "I thought their argument was pretty silly, that somehow they lose O'Bannon and that's a victory that prevents us from getting damages or prevents them from having to pay the full cost of attendance. It was kind of a mind-boggling motion."
Even if there weren't differences in the cases, Wilken said it would be unwise to dismiss the Alston and Jenkins lawsuits based on the O'Bannon ruling because that case is currently on appeal.
"Even though it's my own (ruling), it wouldn't be appropriate," Wilken said.
The judge ordered both sides into settlement talks. Barring an agreement, both cases will proceed though no date has been set for trial. Wilken did set a date of Jan. 7 for both sides to meet with her if they are unable to resolve any issues that might delay the start of the trial.
Kessler said he intends to file a motion for class certification within four weeks. Because his case does not include damages, Kessler had been hopeful of expediting the process. Berman indicated it could take up to four months just to complete the discovery phase.
Wilkens' ruling left open the door for more athletes to join the lawsuits. Kessler said he already intends to add some new names to the list.
"She's already tried this case once," Berman said while standing outside of the courtroom. "I think she's sending us a sign. She kept saying, 'Are you going to take care of the female athletes and are you going to pay past damages?' "
Berman asserted that the plaintiffs are not seeking unlimited compensation and said they would provide potential alternative solutions as the cases proceed.
The difference is that the plaintiffs don't want the NCAA to be the one setting the limits, according to Berman.
"It should not be the case that the NCAA and its school members all sit around in a room and decide what these kids get," Berman said. "That's not competition. Competition is the Big 10, the Pac-12, all the conferences, they decide what they're going to do to give kids compensation. That's the way it should work."
A team of eight lawyers representing the plaintiffs attended the proceedings. Another half-dozen listened in via conference call.
Lawyers for the NCAA and those representing the various conferences involved in the lawsuits left without comment.