NCAA legal chief prepping for jury or bench O'Bannon trial
The NCAA is less than a month away from a trial with Ed O'Bannon plaintiffs, who decided this week not to pursue individual claims. NCAA legal chief Donald Remy weighs in.
Jury trial or not, the NCAA is prepping for a fight with Ed O’Bannon plaintiffs that’s less than a month away.
The NCAA’s plan to aggressively defend the amateurism model doesn’t change in light of news this week O’Bannon plaintiffs will no longer pursue individual damages, NCAA legal chief Donald Remy told CBSSports.com.
The plaintiffs now seek only an antitrust class-action injunction over name, image and likeness with a bench trial for U.S. District Judge Claudia Wilken. Basically, the case is no longer divided -- O’Bannon aims to change NCAA rules that prohibit football and men’s basketball players from being paid.
CBSSports.com’s Jon Solomon on Thursday reported Wilken is leaning toward a June 9 bench trial.
“Whether it’s a jury or the judge, we’re going at it the same way,” said Remy from the Sports Lawyers Association Annual Conference at the Fairmont Hotel in downtown Chicago. “It’s the same result. I don’t know if they think something about the judge or are trying to avoid the jury. It’s still on for June 9 as far as I know.”
Now, individual plaintiffs will not be paid, but O’Bannon lawyer Michael Hausfeld told Solomon “the case was always about the system, not an individual players’ monetary recovery.”
Remy is still trying to figure out the plaintiffs’ motives.
“I suppose it is a strategic move,” Remy said. “We didn’t learn about it until late last night. For us it was a surprise move, an 11th-hour move. At the end of the day, I don’t know what it suggests. Are they not wanting to try the case before a jury? I’m not sure.”
On May 29, Remy will appear before a multidistrict litigation panel, which will determine whether the Martin Jenkins vs. NCAA case -- filed by prominent antitrust attorney Jeffrey Kessler, who has experience litigating at the highest levels of football -- will be consolidated with several others challenging the NCAA model. That panel of judges will determine whether to keep the cases separate or put them in front of one judge.
The Jenkins case, because of Kessler’s perceived presence as a shark, could be the biggest threat yet to amateurism. The suit claims the NCAA limits financial aid players can receive. A victory would essentially allow players to be paid. Jenkins is a Clemson defensive back and one of four plaintiffs in Kessler's case.
But O’Bannon, with both sides in battle for years, appears headed to closure before the others.
Though it was believed the NCAA wanted a jury trial, Remy said the NCAA doesn’t have a preference.
“The judge would call it like she sees it. She’s a fair jurist,” Remy said. “I can’t speak as to why the plaintiffs want to move away from a jury, but we believe either way the law is the law.”
Remy on Thursday appeared on a five-person Sports Lawyers Association panel, where player rights and new NCAA governance were among chief topics.
Remy said he believes the NCAA’s model, spanning decades in history, is “solid,” but that the new changes granting high-resource schools more legislative power will “free up some of the members to do more for student-athletes.”
Gary R. Roberts, dean emeritus and Gerald L. Bepko professor of law at Indiana University, said about bigger schools having more power: “In some ways that makes them look more like a commercial enterprise.”
Roberts added change in college athletics can be like “turning a battleship that’s been beached.”
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