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NCAA's point man

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A couple of years back, Donald Remy was a high-powered Washington attorney who coached 9- to 17-year-olds in AAU ball on the side.

“They were successful teams – all successful,” he said of his Amateur Athletic Union squads. He’s hoping the legal teams he’s now directing have similar results.

“This was a way for me to turn my hobby into my profession,” Remy said during an interview recently inside the Indianapolis offices of the National Collegiate Athletic Association, where he’s been executive vice president and general counsel since March 2011.

The NCAA faces an array of litigation from current and former players, much of which posits antitrust allegations. With three attorneys working with him at NCAA and a support crew that brings the legal office staff to about 10, Remy said the association could never handle litigation on its own. He said the NCAA seeks out top antitrust and sports law attorneys in the geographic areas where cases arise.
 

remy-donald-mug Remy


A case in point is pending before the U.S. District Court for the Southern District of Indiana. Nine attorneys representing the NCAA from Indianapolis and Michigan firms recently were sent notice of a pending hearing.

Oral arguments on the NCAA’s motion to dismiss John Rock v. the National Collegiate Athletic Association, 1:12-CV-1019, are set for Dec. 5 before Judge Jane Magnus-Stinson. The case involves a former quarterback at Gardner-Webb University in North Carolina who lost his football scholarship in his senior year when a new coach made a change. The case has since been joined by other plaintiffs who seek a class action.

The Rock lawsuit claims the NCAA is a college-sports monopoly and that its former prohibition of multi-year scholarships constituted an illegal restraint of trade. The association, at the urging of President Mark Emmert in February, lifted the prohibition on multi-year scholarships.

“I feel really confident,” Remy said of the Rock case. “The case was filed by the same lawyers who pursued the Agnew case previously. It was the same theory, the same principles, and I think we’ll see the same results,” he said.

Magnus-Stinson in September 2011 dismissed Agnew v. NCAA, 1:11-CV-0293. Both Agnew and Rock were brought by the Seattle firm of Hagen Berman Sobol Shapiro LLP; partner Steve Berman did not return messages seeking comment.

Remy has reason to be confident. Despite numerous claims, the NCAA has succeeded to date in fending off antitrust suits that allege big-time college athletics is a market controlled by an NCAA monopoly.

“We are part of higher education and we are dealing with student athletes,” Remy said. “These students are students first, and then they’re athletes.

“The truth of the matter is, we’re a membership organization, and our members set the rules,” he said.

Experts watch likeness case

Indiana University Robert H. McKinney School of Law Dean Gary Roberts has been involved with amateur and pro sports law for more than 30 years. Of the cases confronting the NCAA, he said one in California involving use of former student athlete likenesses may carry the most exposure for the association.


roberts-gary-mug.jpg Roberts

“That’s clearly the biggest one right now,” Roberts said of In re NCAA Student-Athlete Name and Likeness Licensing Litigation, 4:12-mc-80020-CW. The case involves the right to publicity of former collegiate athletes including Ed O’Bannon, Oscar Robertson, Bill Russell and others whose likenesses were used in video games and in other contexts.

“That’s a case that’s probably ripe for some kind of settlement at some point,” he suggested.


edmonds-ed-mug Edmonds

Notre Dame School of Law professor and Associate Dean Ed Edmonds has taught sports law for more than 25 years and agreed that the likeness case is likeliest to prevail.

“The more I’ve read about the O’Bannon (likeness) case and particularly following the procedures, it’s made me feel like the O’Bannon class has more of a chance of winning that case than I initially thought,” Edmonds said. “It’s much more of a toss-up right now.”

Remy said earlier this month that the likeness case was reeling because plaintiffs attempted to expand the suit to include current student athletes and live broadcasts.

“Their old theory was wrong on the facts, and their new theory is wrong on the law,” Remy said in a Nov. 9 statement. “The U.S. Supreme Court and numerous lower courts have determined that the NCAA’s amateurism rules are fully consistent with the nation’s antitrust laws.”
ncaa-cases-factbox
Edmonds and Roberts said antitrust claims will be tough to prove. But they expect the argument that the NCAA is a collegiate sports monopoly will continue to be raised. The association collected revenue of more than $845 million, according to its accounting statement for the year ending Aug. 31, 2011. Almost $700 million of that was in television and marketing rights.

More than three-quarters of NCAA revenue was distributed to member institutions and programs for Division I, II and III.

Edmonds said the U.S. Supreme Court decision in NCAA v. Board of Regents of Univ. of Oklahoma, 468 U.S. 85 (1984) held that the NCAA’s television rights plan that limited appearances of college football games was a restraint of trade.

“The NCAA is probably in a stronger position than they were in Board of Regents to say, ‘our scholarship rule is really ultimately pro-competitive,’” Edmonds said. Regarding the Rock case, he said Rock’s attorneys had attacked some of the deficiencies that led to the dismissal of Agnew. “Because of the adoption of the rule providing for five-year scholarship offers, I think the NCAA would argue that the issue no longer exists,” he said.

Edmonds said that would leave open Rock’s claim that restrictions on the number of scholarships is restraint of trade.

“The NCAA is always nervous about antitrust claims – so much of what they do restrains the market, and that’s kind of the nature of the business they’re in,” he said. “If they do lose some of these lawsuits, it is going to force them to make some changes that they would really prefer not to have to do.”

Roberts said he thinks the NCAA is to a large degree protected from antitrust complaints because courts have shown deference to its unique status as an amateur membership organization.

“Those cases tend to give the NCAA a lot of insulation.” Roberts said. He said the NCAA’s position in some antitrust cases that would-be athletes are open to participate in the National Association of Intercollegiate Athletics and other smaller college associations might be more tenuous.

Remy came to the NCAA in March 2011 from Latham & Watkins LLP in Washington, where he chaired its aerospace, defense and government services industry group. He previously had served as a deputy assistant attorney general at the U.S. Department of Justice and as assistant to the general counsel of the Army.

Along with managing the legal challenges the organization faces, Remy is in charge of contract negotiations and oversees legal issues related to enforcement and other matters. He said he’s been impressed with the NCAA’s direction, particularly academic standards and enforcement reforms implemented under Emmert.

“What drew me to the NCAA was its commitment to student athletes,” Remy said. “Since I’ve been here, I do see a commitment to making the right decisions in a way that’s meaningful.”•

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  1. I like the concept. Seems like a good idea and really inexpensive to manage.

  2. I don't agree that this is an extreme case. There are more of these people than you realize - people that are vindictive and/or with psychological issues have clogged the system with baseless suits that are costly to the defendant and to taxpayers. Restricting repeat offenders from further abusing the system is not akin to restricting their freedon, but to protecting their victims, and the court system, from allowing them unfettered access. From the Supreme Court opinion "he has burdened the opposing party and the courts of this state at every level with massive, confusing, disorganized, defective, repetitive, and often meritless filings."

  3. So, if you cry wolf one too many times courts may "restrict" your ability to pursue legal action? Also, why is document production equated with wealth? Anyone can "produce probably tens of thousands of pages of filings" if they have a public library card. I understand this is an extreme case, but our Supreme Court really got this one wrong.

  4. He called our nation a nation of cowards because we didn't want to talk about race. That was a cheap shot coming from the top cop. The man who decides who gets the federal government indicts. Wow. Not a gentleman if that is the measure. More importantly, this insult delivered as we all understand, to white people-- without him or anybody needing to explain that is precisely what he meant-- but this is an insult to timid white persons who fear the government and don't want to say anything about race for fear of being accused a racist. With all the legal heat that can come down on somebody if they say something which can be construed by a prosecutor like Mr Holder as racist, is it any wonder white people-- that's who he meant obviously-- is there any surprise that white people don't want to talk about race? And as lawyers we have even less freedom lest our remarks be considered violations of the rules. Mr Holder also demonstrated his bias by publically visiting with the family of the young man who was killed by a police offering in the line of duty, which was a very strong indicator of bias agains the offer who is under investigation, and was a failure to lead properly by letting his investigators do their job without him predetermining the proper outcome. He also has potentially biased the jury pool. All in all this worsens race relations by feeding into the perception shared by whites as well as blacks that justice will not be impartial. I will say this much, I do not blame Obama for all of HOlder's missteps. Obama has done a lot of things to stay above the fray and try and be a leader for all Americans. Maybe he should have reigned Holder in some but Obama's got his hands full with other problelms. Oh did I mention HOlder is a bank crony who will probably get a job in a silkstocking law firm working for millions of bucks a year defending bankers whom he didn't have the integrity or courage to hold to account for their acts of fraud on the United States, other financial institutions, and the people. His tenure will be regarded by history as a failure of leadership at one of the most important jobs in our nation. Finally and most importantly besides him insulting the public and letting off the big financial cheats, he has been at the forefront of over-prosecuting the secrecy laws to punish whistleblowers and chill free speech. What has Holder done to vindicate the rights of privacy of the American public against the illegal snooping of the NSA? He could have charged NSA personnel with violations of law for their warrantless wiretapping which has been done millions of times and instead he did not persecute a single soul. That is a defalcation of historical proportions and it signals to the public that the government DOJ under him was not willing to do a damn thing to protect the public against the rapid growth of the illegal surveillance state. Who else could have done this? Nobody. And for that omission Obama deserves the blame too. Here were are sliding into a police state and Eric Holder made it go all the faster.

  5. JOE CLAYPOOL candidate for Superior Court in Harrison County - Indiana This candidate is misleading voters to think he is a Judge by putting Elect Judge Joe Claypool on his campaign literature. paragraphs 2 and 9 below clearly indicate this injustice to voting public to gain employment. What can we do? Indiana Code - Section 35-43-5-3: Deception (a) A person who: (1) being an officer, manager, or other person participating in the direction of a credit institution, knowingly or intentionally receives or permits the receipt of a deposit or other investment, knowing that the institution is insolvent; (2) knowingly or intentionally makes a false or misleading written statement with intent to obtain property, employment, or an educational opportunity; (3) misapplies entrusted property, property of a governmental entity, or property of a credit institution in a manner that the person knows is unlawful or that the person knows involves substantial risk of loss or detriment to either the owner of the property or to a person for whose benefit the property was entrusted; (4) knowingly or intentionally, in the regular course of business, either: (A) uses or possesses for use a false weight or measure or other device for falsely determining or recording the quality or quantity of any commodity; or (B) sells, offers, or displays for sale or delivers less than the represented quality or quantity of any commodity; (5) with intent to defraud another person furnishing electricity, gas, water, telecommunication, or any other utility service, avoids a lawful charge for that service by scheme or device or by tampering with facilities or equipment of the person furnishing the service; (6) with intent to defraud, misrepresents the identity of the person or another person or the identity or quality of property; (7) with intent to defraud an owner of a coin machine, deposits a slug in that machine; (8) with intent to enable the person or another person to deposit a slug in a coin machine, makes, possesses, or disposes of a slug; (9) disseminates to the public an advertisement that the person knows is false, misleading, or deceptive, with intent to promote the purchase or sale of property or the acceptance of employment;

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