A federal judge on Friday denied a request by the NCAA and Football Bowl Subdivision conferences to dismiss class-action lawsuits challenging the association's compensation limits to college athletes.
The decision allows the plaintiffs, led in part by prominent attorney Jeffrey Kessler, to resume their attempt to let schools pay college athletes beyond cost of attendance. Because of a previous ruling in the Ed O'Bannon case, Kessler will have to argue -- at least for now -- that any extra money provided to players is tied to education.
The NCAA and the conferences had argued that the Ninth U.S. Circuit Court of Appeals' decision in O'Bannon required that the separate scholarship cases be decided in their favor immediately. Last September, the Ninth Circuit upheld U.S. District Judge Claudia Wilken's finding in O'Bannon that the NCAA violated antitrust laws and the remedy related to cost of attendance. But the appellate court threw out her decision of allowing up to $5,000 per year payable when the athlete leaves school.
Both the NCAA and O'Bannon lawyers have asked the U.S. Supreme Court to hear the case. The Supreme Court has set a conference for Sept. 26, meaning an announcement on whether it takes the O'Bannon case could come in October.
In their motion for judgment in the scholarship cases, the NCAA and conferences argued the O'Bannon decision was "final and binding" even if parties sought a Supreme Court review. The NCAA and conferences hung their hat on favorable language by the Ninth Circuit that said offering college athletes cash "untethered to educational expenses" was not a less-restrictive alternative to the NCAA's rules under antitrust law analysis.
"The Ninth Circuit's decision in O'Bannon simply forecloses one type of relief Plaintiffs previously sought: cash compensation untethered to educational expenses," Wilken wrote Friday. "... The Ninth Circuit's decision in O'Bannon limits the types of relief Plaintiffs may seek but it does not provide a basis upon which a judgment on the merits can be rendered."
In an interview Friday, Kessler said there is still a "tremendous amount of cash" tied to education that schools can provide for athletes even through a strict interpretation of the O'Bannon ruling.
"There are benefits they can provide that have to be tethered to education," Kessler said. "They can get additional graduate scholarships. They can get better health care while they're in school and afterward. They can have families accompany them on recruiting trips. They can get money if it directly helps further their education. They can get a bonus for graduating, for staying school. Those are all things we think are permissible."
One set of plaintiffs includes former Clemson football player Martin Jenkins and current Wisconsin basketball player Nigel Hayes. This is the case led by Kessler and it's seeking an injunction against the NCAA's rules limiting payment.
The other set of plaintiffs, led by attorney Steve Berman, started on behalf of former West Virginia football player Shawne Alston. In addition to an injunction, it wants damages for past money lost to players when cost of attendance was not previously allowed by the NCAA.
The cases are currently in the middle of discovery. There have been extensive legal disputes between plaintiffs' lawyers and the conferences over what documents the leagues must provide.
"We're proceeding with depositions," Kessler said. "We hope to proceed at a pace that will perhaps get a trial in the second half of next year."
In a statement Friday, NCAA chief legal officer Donald Remy said, "Although the court denied the NCAA and conference motion to end the grant-in-aid litigation, the court acknowledged that the claims made by the plaintiffs are limited by the Ninth Circuit's decision in O'Bannon: pay for play is not an option for them as a valid claim. The plaintiffs have a difficult road ahead to certify a damages class and to articulate what they are really asking for in light of being bound by the O'Bannon decision."