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."