The legal fight to represent the next wave of antitrust cases in college sports has reached into professional sports.
Sports attorney Jeffrey Kessler's antitrust lawsuit against the NCAA and its five major conferences is being supported by the directors of the NFL and National Basketball players associations. Kessler's case is seeking a free market for college players beyond the value of their athletic scholarship.
NFLPA executive director DeMaurice Smith and interim NBPA executive director Ron Klempner filed declarations in court this week supporting Kessler's attempt to lead a group of plaintiffs in litigation alleging that scholarships are illegally capped. Both the NFLPA and NBPA primarily use Kessler and his firm, Winston & Strawn, as outside counsel.
Also, National College Players Association executive director Ramogi Huma gave a declaration in support of Kessler. Huma stated he initially approached Kessler to take the Martin Jenkins case, which is the next big college sports lawsuit after the Ed O'Bannon case that is trying to end the NCAA's ban on players being paid for their names, images and likenesses.
The declarations are part of the effort to determine which lawyers will lead six scholarship lawsuits against the NCAA and many of its conferences. The lawsuits were recently joined together in the Northern District of California for pre-trial proceedings, although the Jenkins case could return to New Jersey for trial.
At a June 18 case management conference, US District Judge Claudia Wilken preliminarily appointed Hagens Berman Sobol Shapiro LLP and Pearson, Simon & Warshaw LLP as interim co-lead counsel, according to a document in the case. Their lawyers filed the first scholarship lawsuit, the Shawne Alston case, in March.
The Sharriff Floyd plaintiffs want their lawyers -- Hausfeld LLP and Zelle Hofmann Voelbel & Mason LLP -- to be co-lead counsel for the plaintiffs and other classes. The Floyd plaintiffs wrote that Jenkins' lawyers “may address issues unique to their claims,” but Winston & Strawn said that contradicts the court's order for Kessler to lead his own case during pre-trial proceedings. To show the qualifications for Winston & Strawn attorneys Kessler, David Feher and David Greenspan, the firm filed declarations from players leaders in the NFL, NBA and NCAA.
Smith cited Kessler's experience representing classes of football players, such as for free agency in the Reggie White case and his challenge of the NFL's 2011 lockout as an antitrust violation.
“Simply put, in antitrust litigation challenging restraints against players, there is no legal team more dedicated to the interests of players nor with more experience or expertise in this complex area,” Smith's declaration said. “Sports leagues have historically raised a host of defenses to try to justify their restraints on players, including so-called ‘competitive balance' justifications and market definition issues unique to sports. Mr. Kessler and his team have fought back all of those efforts, and preserved the economic success of his players.”
Klempner's declaration cited Kessler's success in NBA litigation, such as challenging the league's restrictions on player compensation in 1987 that resulted in a settlement and challenging the NBA's lockouts in 1995 and 2011. The lockout challenges “resulted in the owners dropping their demands for fundamental rollbacks to the free agency system in the NBA,” according to Klempner's declaration.
Kessler began representing the NBPA in the early 1990s. Klempner's declaration credited the efforts by Kessler and Feher for helping NBA player salaries rise to an average of more than $5 million per year.
Huma, who is leading the efforts for Northwestern football players to unionize as employees, said in his declaration that he decided to work with Kessler to bring the Jenkins lawsuit.
“Although I support the efforts of the other athletes who are part of the various suits before this court, I believe the best approach to this case is the injunctive relief-only class being pursued by the Jenkins plaintiffs,” Huma's declaration said. “I support the Jenkins plaintiffs' theory because it offers a quicker path to injunctive relief and is not limited to issues surrounding the cost of attendance.”
The Jenkins lawsuit argues the NCAA, SEC, ACC, Big 12, Big Ten and Pac-12 illegally cap the scholarship value without letting the free market decide. The other scholarship cases largely deal with the gap between the scholarship value and the actual cost of attendance and seek damages and an injunction. The NCAA and its schools are trying to pass legislation next month that would allow cost-of-attendance stipends moving forward.
“Although I support the recovery of past damages for former players,” Huma's declaration said, “I see that as a separate and distinct effort that, if combined with the injunctive relief effort, could significantly delay the primary goal of changing the system for the thousands of athletes who are currently suffering continuing injury as a result of the restrictions.”