NCAA's strongest argument might be cap limit

Back to TopCommentsE-mailPrintBookmark and Share

The NCAA's best argument against the Ed O'Bannon ruling may be the financial limits imposed by U.S. District Judge Claudia Wilken — the same ones the NCAA lauded in her decision.

Less than two weeks after the court decision opened the door for college athletes to receive a small portion of the millions of dollars they help generate, several attorneys told The Associated Press they believe the NCAA should now attack that cap. Wilken ruled Aug. 8 that the NCAA violated antitrust law by restricting schools from providing money beyond current scholarship limits to athletes.

She said schools should be allowed to put up to $5,000 per year of competition into a trust fund for football players and men's basketball players, money that could be collected once they are finished with school.

Legal experts question how she reached that number and wonder whether it will hold up on appeal.

"The cap is inconsistent with a judicial decision that the restraint (of trade) is unreasonable," said Robert McTamaney, an antitrust lawyer with the firm of Carter, Ledyard & Milburn. "If the restraint is unreasonable out it goes, there's no partial remedy under the Sherman Act and, frankly, judges aren't supposed to construct one. Either it's good or it's not."

Within an hour of the ruling, NCAA chief legal officer Donald Remy issued a statement noting that the governing body disagreed with the ruling but supported the cap. The NCAA, which faces a Wednesday deadline to appeal the decision, declined to comment Monday.

Wilken said she set the $5,000 annual threshold to balance the NCAA's fears about huge payments to players.

"The number is immaterial, it's the concept," said Jim Ryan, an attorney at Cullen and Dykman. "It does seem rather arbitrary. Why isn't it $3,000 or $10,000? She pulled the $5,000 somewhat out of the air, so it could be $3,000, it could be $10,000, what's a few thousand?"

In October 2011, the NCAA Board of Directors approved a $2,000 annual stipend for athletes, legislation that was shelved when more than 125 schools signed on to an override measure. The five richest conferences are attempting to bring back the stipend now that they have been given autonomy over some of the trickiest issues in college sports.

McTamaney believes if the stipend were already in place and Wilken applied the same logic to the O'Bannon case, the NCAA might have already won in court.

Instead, the NCAA is headed back to a playing field where it has traditionally been successful.

According to a study released last month by Illinois professor Michael LeRoy, athletes suing the NCAA won 49 percent of the initial cases but the NCAA won 71 percent of the appeal in the second and third rounds.

This time, the governing body's lawyers face a vastly different obstacle. The appeal, promised by NCAA President Mark Emmert, will be heard by the 9th U.S. Circuit Court, a venue that has a reputation for siding with labor. Remy has repeatedly said the NCAA will take this case to the U.S. Supreme Court if necessary.

If the ruling stands, some worry it could ruin non-revenue sports and others believe the NCAA could face additional litigation from female athletes who could argue they are not being compensated equally in violation of Title IX laws.

Still, NCAA critics contend Wilken's decision didn't go far enough in compensating players for the merchandise and video games that have produced millions in revenue for the NCAA and its members but not for the athletes themselves. Joseph Farelli, an attorney with Pitta & Giblin who specializes in labor law, argues there should be no cap at all. He's not alone.

"I think how the court framed its injunction, exposed itself to some vulnerability," said Jeffrey Shinder, managing partner of Constantine Cannon and a self-described NCAA critic who declined to go into specifics because he didn't want to give the NCAA any advice.

Even NCAA supporters understand the rationale that if antitrust laws were broken, the players' options should not be limited.

But they're urging the NCAA attorneys to question Wilken's reasoning in setting the cap and continue to argue that college sports will be damaged if players are paid.

"I think the key to this case is whether these restraints are reasonable or not. I personally think that they are," McTamaney said. "If the athletes turn out to be compensated for their performances, the fan perception and alumni perception, I think, would be dramatically different. I think their support of the schools would decline significantly. And all of that sort of comes full circle, because if the restraints are substantial to keeping the fiction of the student-athlete, then they are reasonable."


Post a comment to this story

We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
You are legally responsible for what you post and your anonymity is not guaranteed.
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
Subscribe to Indiana Lawyer
  1. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  2. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  3. Paul Hartman of Burbank, Oh who is helping Sister Fuller with this Con Artist Kevin Bart McCarthy scares Sister Joseph Therese, Patricia Ann Fuller very much that McCarthy will try and hurt Patricia Ann Fuller and Paul Hartman of Burbank, Oh or any member of his family. Sister is very, very scared, (YES, I AM) This McCarthy guy is a real, real CON MAN and crook. I try to totall flatter Kevin Bart McCARTHY to keep him from hurting my best friends in this world which are Carolyn Rose and Paul Hartman. I Live in total fear of this man Kevin Bart McCarthy and try to praise him as a good man to keep us ALL from his bad deeds. This man could easy have some one cause us a very bad disability. You have to PRAISAE in order TO PROTECT yourself. He lies and makes up stories about people and then tries to steal if THEY OWN THRU THE COURTS A SPECIAL DEVOTION TO PROTECT, EX> Our Lady of America DEVOTION. EVERYONE who reads this, PLEASE BE CAREFUL of Kevin Bart McCarthy of Indianapolis, IN My Phone No. IS 419-435-3838.

  4. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

  5. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.