By Joshua Brown
August 21, 2014
INDIANAPOLIS (AP) — The NCAA has notified the 9th U.S. Circuit Court of Appeals that it intends to appeal a judge’s ruling in the Ed O’Bannon case that it violated antitrust laws.
U.S. District Judge Claudia Wilken ruled Aug. 8 that the NCAA broke the law by restricting schools from providing money beyond current scholarship limits to athletes. She said schools should be allowed to place up to $5,000 per athlete per year of competition into a trust fund for football players and men’s basketball players, which they could collect after leaving school.
A formal appeal has not yet been submitted, but NCAA chief legal officer Donald Remy issued a statement Thursday.
“We are appealing the Court’s decision because we do not believe the NCAA has violated the antitrust laws,” he said. “In its decision, the Court acknowledged that changes to the rules that govern college athletics would be better achieved outside the courtroom, and the NCAA continues to believe that the association and its members are best positioned to evolve its rules and processes to better serve student-athletes.”
Remy also noted that the NCAA has been discussing ways to improve the “student-athlete experience” even before the lawsuit was filed, and through the recent decision to give the five richest football conferences more power over the rule-making process.
What’s unclear is how the NCAA’s legal team will attack Wilken’s ruling in a court that has traditionally been more favorable to labor, or in this case the athletes. A recent study from the University of Illinois shows the NCAA wins about 71 percent in the second and third rounds in court, and some believe this case could be headed the U.S. Supreme Court. Remy has promised to take it there, if necessary.
Earlier this week, NCAA officials declined an interview request with The Associated Press to discuss the case. But antitrust and labor attorneys believe the NCAA’s strongest argument might be against the financial cap, a part of the decision the NCAA initially lauded.
“If she’s right that these restrictions are an unreasonable restraint of trade then the cap doesn’t make any sense,” said Robert McTamaney, an antitrust lawyer with the firm of Carter, Ledyard & Milburn. “Then student-athletes should be able to negotiate for whatever they can get.”
Labor attorney Joseph Farelli, who works for the New York-based law firm of Pitta & Giblin, said the NCAA had to file the appeal.
Otherwise, he noted, it could open the NCAA or its member schools to more potential litigation for athletes who are not receiving additional money, including women’s athletes who could cite Title IX law.
“I would expect them to appeal it because now you’re going to have a permanent injunction that says the NCAA can’t regulate what colleges do with their student-athletes,” Farelli said. “If they don’t appeal now you have federal court precedent.”