The NCAA, Pac-12, Big Ten, Big 12, SEC and ACC are asking for an extension to respond to the Shawne Alston and Martin Jenkins antitrust scholarship lawsuits.
In a filing late Wednesday night, the NCAA and the five major conferences cited the recent Ed O'Bannon ruling before the same judge as the reason they need at least 30 days to respond. The NCAA and the conferences “have been reviewing the Court's ruling in that (O'Bannon) action to assess its possible impact on the allegations and claims -- as well as the Defendants' anticipated joint motion to dismiss such claims -- in this action,” according to the filing by a Pac-12 attorney. The plaintiffs in the scholarship cases oppose allowing for a delay.
The Alston and Jenkins cases allege the NCAA and many of its conferences illegally cap the value of scholarships. The cases are consolidated in pre-trial before U.S. District Judge Claudia Wilken, who ruled in the O'Bannon case last week the NCAA can cap the amount of new compensation FBS football and Division I men's basketball players receive while in school but it cannot be less than their cost of attending college.
The NCAA's current athletic scholarship value is less than the cost-of-attendance amount listed by schools when they add in incidental costs and travel expenses. The NCAA Division I board granted the Power 5 conferences autonomy last week to create some of their own new rules, and cost of attendance is the first agenda item for the conferences.
The damages in the Alston case could be hundreds of millions of dollars if the plaintiffs win. Until the NCAA and conferences change the facts on the ground, the potential damages will continue to increase. The Jenkins lawsuit brought by attorney Jeffrey Kessler is the next major challenge to the NCAA moving forward because it seeks a free market for college athletes beyond cost of attendance or the right to some licensing money, as the O'Bannon plaintiffs won in court last week pending appeal.
The NCAA and the conferences had been scheduled to respond to the Alston and Kessler cases by Aug. 20. Because the O'Bannon ruling is “lengthy and detailed” and was issued less than 10 business days prior to the deadline in the scholarship case, the NCAA and the conferences want until Sept 19 to respond.
The NCAA and the conferences state in their court filing that they “not only have to assess the O'Bannon decision for themselves, but they also have to cooperate and collaborate with all of the other Defendants in an effort to develop a common understanding of the O'Bannon decision and a common approach if they are to be able to file a joint motion to dismiss and supporting papers” as ordered by Wilken on June 18. The other five FBS conferences and the Atlantic Sun are also defendants in the Alston suit.
"Speaking for the Jenkins plaintiffs, we do not intend to file an amendment to the complaint in response to the O'Bannon ruling," Kessler wrote in an email to Pac-12 attorney Scott Cooper. "We also do not believe a continuance is necessary, and given our objective to expedite the proceedings in our case as much as possible, we don't feel it appropriate to agree to an extension."
In a filing Friday, Kessler wrote that he believes pretrial proceedings can be completed "relatively quickly" for his injunctive-relief class, allowing his case to be returned to New Jersey for a fall 2015 trial. "But only if this case moves forward in a timely and efficient manner," Kessler wrote. Kessler said the timing of the O'Bannon ruling is not an unexpected development and the NCAA and conferences have had nearly two weeks since the decision to consider its impact on the scholarship cases. The Kessler and Alston cases were filed last March.
Steve Berman, the co-lead counsel for the Alston plaintiffs, wrote in an email that his side doesn't "intend to amend and don't agree to an extension." On Wednesday, Berman filed a motion opposing the extension, arguing that the request for a delay is not supported by evidence and would prejudice active players.
"The Plaintiffs and Class Members, many of whom are as young as 17 or 18 years old, stand in stark contrast to the extremely well-heeled Defendants," Berman wrote. "Compensation via this case is expected is expected to be extremely meaningful and impactful to them. In fact, Defendants have repeatedly stressed the urgency of getting financial resources to Class members."