This podcast is a must listen for anyone involved in college athletics.
Jeffrey Kessler is one of the attorneys representing the college athletes in House v NCAA and the newly filed Carter v NCAA case.
For those that might not be aware of the difference between the two cases, House is focused on the NCAA rules that limit #NIL compensation. It’s seeking damages for the #NIL compensation that has previously been denied to college athletes, and to eliminate rules that prohibit schools and conferences from paying NIL compensation to athletes.
Carter is focused on the NCAA’s so called “pay for play” rules, the rules that prohibit college athletes from being paid for their athletic performance. It’s seeking damages for these payments that athletes were unable to receive in the past, and the elimination of the rules preventing payment for athletic performance.
There are a number of important points made by Kessler during the podcast. He also has a few memorable and prescient quotes.
-Kessler said the new damages calculations in the House case are significantly higher than the previous $1.4 billion that was included in class certification briefing. And remember that damages are tripled under antitrust law. So the real damages facing the NCAA/P5 in House could be close to $10 billion.
-Kessler said he’s open to settling the House and Carter cases if the NCAA is willing to agree to a model that is fair for college athletes. And he said Charlie Baker’s new athlete compensation proposal is not that model. A model that fits here would need athlete participation and representation.
-On that topic, Kessler called Baker’s proposal an admission that rules restricting schools from directly paying athletes violate antitrust law. It eliminates the argument that rules restricting payments from schools to athletes are needed to differentiate college sports from pro sports.
-Relatedly, Kessler said the NCAA has no procompetitive justification arguments left for its athlete comp limits. This means the rules would be found to violate antitrust law under a rule of reason analysis.
-Kessler called arguments that schools will cut non-rev sports if limits on athlete compensation are eliminated “ridiculous.” As he noted, that argument is always made when schools may be required to share more revenue with athletes.
For example, it was made in opposing cost of attendance payments, Alston payments, allowing NIL compensation, etc.
And the non-rev/Olympic sports still exist.
Kessler said look at DIII. They receive almost zero revenue support for athletics and have many sports.
Further, the threatened elimination of non-revenue sports argument isn’t an antitrust defense.
I’ll end with a couple of his quotes:
“What our lawsuits will do is allow competition to allocate it ($) to the people who generate that money, which are the athletes.”
“This long battle to bring down the NCAA cartel is coming to a head.”
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