NCAA: Scholarships cut if players are paid
The NCAA and 11 major conferences say that if college athletes are allowed to be paid, the development would “likely lead many — if not most — Division I institutions” to reduce the number of scholarships for less-renowned football and men’s and women’s basketball players.
That’s one of several arguments the NCAA and the conferences made in court documents filed late Thursday night opposing a pair of scholarship lawsuits from becoming class actions. The consolidated Shawne Alston and Martin Jenkins lawsuits are challenging the NCAA’s cap on compensation at the value of a scholarship. The Jenkins case, led by prominent sports labor attorney Jeffrey Kessler, essentially seeks a free market for football and men’s basketball players.
The NCAA and conferences’ motion opposing certification also shows the tangled web between the Alston and Jenkins cases and the Ed O’Bannon ruling over the use of athletes’ names, images and likenesses. U.S. District Judge Claudia Wilken has overseen both cases.
In O’Bannon, Wilken ruled that the NCAA can cap the amount of deferred compensation to players at no less than $5,000 per year and not below the cost of attendance. The NCAA is appealing the O’Bannon ruling while also citing some of Wilken’s previous opinions as a defense in Alston and Jenkins.
The NCAA and the conferences argue that the injunction sought in Alston and Jenkins for unlimited compensation is “markedly different” than the O’Bannon plaintiffs when they sought group licensing that would be equal among all plaintiffs. The NCAA and the conferences cited Wilken’s opinion that the distinction of equal payments “is important because it renders irrelevant any differences in the value of each class member’s individual publicity rights.”
This represents the attempt by the NCAA and the conference to show that the named Alston and Jenkins plaintiffs don’t have the best interests of all football, men’s basketball and women’s basketball players in the proposed class. For the consolidated lawsuits to become class actions, the plaintiffs must show in part that the complaints are common to the entire class attempting to be represented.
The requested injunction in Alston and Jenkins “will cause student-athletes to compete against one another for compensation and, depending on the differences in the value of each class member’s individual talent and skill, some putative class members will be harmed by the elimination of the challenged rules,” the NCAA and the conferences wrote. They said the economics of superstar players would “skew competition in a ‘free and open’ labor marketplace so that only superstar student-athletes would likely earn substantial compensation, while many putative class members would receive little or no financial aid.”
The NCAA and the conferences wrote that Jenkins, a former Clemson football player, testified in his deposition that “he was sure that his teammates who left Clemson early to play professional football would have stayed at Clemson longer if they had been paid to play college football.” The argument: If this would have happened, some potential class members would be replaced and harmed by other potential class members — a “substitution effect” that was a discussion point during the certification stage of O’Bannon.
In citing testimony from Jenkins, Wisconsin basketball player Nigel Hayes and Wisconsin football player Alec James, the NCAA and conferences argued that since athletes are “prepared and able” to play as walk-ons in FBS football and Division I basketball, allowing players to be paid would result in universities focusing on compensating “superstars” while many players would get paid less than they currently receive in financial aid.
The NCAA and the conferences said most Division I athletic departments operate with deficits and face serious financial constraints that would result in cutting scholarships if there’s unlimited payments to players. As an example, the NCAA and conferences cite UAB dropping football last December, “determining that the program was too expensive to be sustainable.” Not mentioned in the filing was the politics associated with the UAB decision and what might happen to UAB’s revenue without football assuming it’s kicked out of Conference USA.
Claims by the Alston and Jenkins plaintiffs that schools could increase the compensation to players by reducing how much head coaches are paid is “economic nonsense,” the NCAA and conferences wrote.
Rather, they said, college football and basketball head coaches who are paid significantly are “likely in the same market as the head coaches of professional football and basketball teams, and their salaries are far more directly affected by the level of compensation for coaches of professional teams than by the level of financial aid for student-athletes.” The NCAA and conferences wrote that James, the Wisconsin football player, said “student-athletes want coaches who are the caliber of professional league coaches.”
The American Athletic Conference, Conference USA, MAC, Mountain West, Sun Belt and WAC are named defendants in only the Alston cost-of-attendance lawsuit. The SEC, ACC, Big Ten, Pac-12 and Big 12 are defendants in both cases. The NCAA and the conferences noted this distinction as a reason an injunctive relief class can’t be certified. Plus, they said, the cost-of-attendance plaintiffs no longer have a proposed representative for the FBS football class since two representatives dropped out during discovery.
A class certification hearing on the two cases is scheduled for July 23. The plaintiffs have until May 28 to respond to Thursday’s filing.
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