Attorneys acting on behalf of two former college athletes on Tuesday filed a federal antitrust lawsuit against the NCAA and the Power Five conferences that seeks retroactive damages for thousands of college athletes based on the nearly $6,000-a-year academic-achievement payments that were allowed by a U.S. district court judge in March 2019 and unanimously upheld by the Supreme Court a little more than two years later.
Tuesday’s filing is certain to be cited by the NCAA as another illustration of why it says it needs a federal law covering college athletes’ ability to make money from their name, image and likeness that also would include protection from antitrust suits. A form of such protection was one feature of a bill that has been offered by Sen. Roger Wicker, R-Miss., although not in the current Congressional session.
The plaintiffs’ lead attorneys, Steve Berman and Jeff Kessler, told USA TODAY Sports they have no concerns about this case strengthening the NCAA’s position with lawmakers.
Said Kessler: ‘I’ve spoken to many members of Congress about this the last several years. I know Steve has, too. We have yet to find members of Congress who don’t worry about the athletes as the victims of the exploitation. They’re not really terribly concerned about the NCAA’s claim that, somehow, it’s the victim. So, I don’t think there’s any real desire in Congress to grant immunity to the NCAA any more than they would grant immunity to Amazon.’
NCAA officials were not immediately available for comment.
The new case was filed in U.S. District Court in the Northern District of California’s Oakland Division. It is the same venue through which other antitrust suits against the NCAA related to college-athlete compensation have proceeded over the past 14 years. In the two cases that have gone to trial there before Judge Claudia Wilken, the NCAA has been found in violation of antitrust law. She already is overseeing another case that has reached the phase in which she will determine whether it will proceed as class action.
Lawyers at the center of Alston case involved
Tuesday’s suit is the fifth antitrust case against the NCAA that has been led or co-led by the Seattle-based firm Hagens Berman Sobol Shapiro LLP. Not all of those cases have fully succeeded. But Berman, one of the firm’s name partners, was at the center of the case that went to the Supreme Court on behalf of former West Virginia football player Shawne Alston and has served as the launch point for this litigation.
The Alston case began as a quest for both an injunction that would prevent the NCAA from having limits on the compensation athletes could receive from their schools, and damages based on the difference between the value of a cost-of-attendance-based scholarship and the value of a traditional scholarship mainly comprising tuition, room, board, books and fees. The NCAA and a group of 11 conferences settled the damages portion for $208.7 million.
During the injunction phase of the case, Berman joined forces with Kessler, a New York-based lawyer with Winston & Strawn LLP known widely for his work in sports cases. Kessler ended up arguing the case before the Supreme Court.
Berman and Kessler also are leading the case already pending before Wilken that seeks to build on the Alston case in a different way. That case not only asks that the NCAA be prevented from having association-wide rules that “restrict the amount of name, image, and likeness compensation available” to athletes but also seeks unspecified damages based on the share of television-rights money and the social media earnings it claims athletes would have received if the NCAA’s current limits on NIL compensation had not existed. Those damages, conservatively, could total hundreds of millions of dollars.
Several thousand athletes could be covered in new suit
The case filed Tuesday also seeks to be a class action. It is connected directly to Wilken’s injunction in the Alston case. She ruled that the NCAA’s limits at the time on benefits related to education for athletes playing Division I men’s or women’s basketball or Bowl Subdivision football violated antitrust law.
Under the injunction, the basketball and football players were permitted to receive payments for academic achievement in an amount equivalent to the maximum cash value of awards they could receive for athletic achievement. Those awards are the items given for winning championships or participating in bowl games, which have provided athletes with gift cards and and/or an array of merchandise. Based primarily on the dollar-value limits listed in the NCAA Division I rulebook, Wilken determined their maximum cash value to be $5,980.
To comply with the injunction, the NCAA changed its rules for Division I men’s or women’s basketball players and Bowl Subdivision football players in August 2020.
After the Supreme Court’s ruling, the NCAA in October 2021 allowed schools to award the academic-achievement payments to athletes in any sport.
Schools that have adopted these payments have set varying requirements that athletes must meet to receive them, but some schools have made them contingent only on maintaining “minimum academic eligibility under NCAA standards,” according to the lawsuit, which alleges that is the case with at least 16 schools. The suit claims that, overall, more than 50 schools are paying academic-achievement awards.
The goal of Tuesday’s lawsuit is to obtain a damages award that covers all current and former athletes who competed on a Division I team on or after April 1, 2019 “who would have met the requirements for receiving an Academic Achievement Award under the criteria established by their schools for qualifying for such an Award.”
The four-year reach-back from filing date is allowed under federal antitrust law. In addition to covering athletes at schools that already are providing academic-achievement awards, the suit proposes to cover athletes at any school that starts to provide the awards between now and the date the case is certified by a judge as a class action. A ruling on that issue could be at least a year or two away. Also, if a jury decides to award damages to an antitrust plaintiff, the amount is tripled.
The suit says the plaintiffs “are informed and believe that there are several thousand” athletes who would be covered. Kessler said: ‘We know that it’s going to be thousands — probably tens of thousands — of athletes, but we can’t really be more precise at this moment.’
How amounts owed to athletes could be determined
How the suit proposes that this would work was illustrated by its claims regarding the named plaintiffs, former Oklahoma State football player Chuba Hubbard and former Oregon and Auburn track and field athlete Keira McCarrell. Both plaintiffs’ athletic and academic achievements are included in the lawsuit.
Hubbard played for Oklahoma State from 2017 through 2020-21 season. According to the lawsuit, Oklahoma State announced in March 2022 that it would begin offering annual $5,980 academic-achievement awards.
As “a direct result of the NCAA rules prohibiting OSU from offering such payments sooner — rules that have since been determined to violate the antitrust laws — Hubbard was deprived of receiving the $5,980 Academic Achievement Awards that he would have earned each year that he attended OSU,” the lawsuit alleges.
McCarrell competed for Oregon in 2017-18 and ’18-19, then for Auburn for three years. In February 2022, Auburn started paying academic-achievement awards, and Oregon also started doing this during the 2021-22 academic year, the lawsuit states. “ … McCarrell was deprived of receiving Academic Achievement Awards that she would have earned each year that she attended Oregon and the first two years that she attended Auburn,” the suit alleges.
