Daily Compliance Item 1/24/14- Current Event

Ed O’Bannon lawyers: New NCAA rules support benefits


Lawyers for the plaintiffs in an anti-trust lawsuit against the NCAA concerning the use of college athletes’ names and likeness reiterated in a filing Friday night that they will use recent, and proposed, changes to the NCAA’s rules about what athletes can receive for playing sports to attack one of the association’s defenses in the case.

The new filing was made in conjunction with the plaintiffs’ effort to obtain more draft documents like one they included Friday night from an NCAA committee that said, in part, recent small additions to the benefits athletes can receive, like medical expenses, do “not appear to be disrupting fair competition opportunities either in recruiting or on the playing field.”

The draft document goes on to say “substantial (athletic) revenue increases are expected by a third of the Division I membership by 2015” and schools’ evaluation of whether to more significantly increase what Division I athletes can receive for playing sports would not be “contrary to reasonable standards of ‘Fair Competition’ or ‘play for pay’ Amateurism principles.”

The plaintiffs are seeking to obtain a legal ruling that would stop the NCAA from placing limits on what athletes can receive in exchange for colleges using their names and likenesses – essentially an end to limits on what schools can give athletes for playing sports.

The NCAA has argued that its amateurism rules enhance competitive balance among schools, and that those considerations are sufficient justification for the limits on what athletes might otherwise receive if they were able to offer themselves to schools in an open market.

Friday night’s filing came as part of a dispute over the plaintiffs’ access to NCAA documents pertaining to deliberations about recent changes in NCAA rules that have made some new benefits available to athletes and proposals that could add even more benefits – especially for athletes who play for schools in the five richest conferences: the Atlantic Coast, Big Ten, Big 12, Pacific-12 and Southeastern.

Changes in the NCAA’s governance structure that could give those conferences greater autonomy in setting rules relating to areas including athletes’ compensation were a major topic of discussion at this week’s NCAA convention in San Diego.

The plaintiffs argue that they are entitled to a wide range of documents, in part, because they are relevant to the NCAA’s defense of the need for its athlete-compensation limits.

“The NCAA argues that its ‘amateurism’ … rules are the least restrictive rules conceivable,” the plaintiffs’ lawyers wrote Friday. ” . . . The documents sought here all relate to recent changes and proposed changes to ‘pay’ as defined by the NCAA.”

The NCAA maintains that the plaintiffs’ document request is overly broad and that the process of locating and producing everything the plaintiffs seek would place an unfair burden on the association.

“The lawyers for the plaintiffs are on an unsupported and unsupportable quest to professionalize college sports, and the request for more discovery is just a tactical attempt to drive up the costs of this litigation,” the NCAA’s chief legal officer, Donald Remy, said in statement Friday night.

U.S. Magistrate Judge Nathanael Cousins is scheduled to hold a hearing on the dispute on Wednesday.

Meanwhile, each side has asked U.S. District Judge Claudia Wilken to decide the overall case in its favor without a trial – a matter on which Wilken is scheduled to hold a hearing on Feb. 20.

The draft document the plaintiffs included with Friday night’s filing came from work in April 2013 by the NCAA’s Student-Athlete Well-Being Working Group, a panel that, according to the plaintiffs, was “the lead group behind the efforts to institute a ‘stipend’.” The group included college presidents, conference executives, a coach and a member of the NCAA Student-Athlete Advisory Panel, and it had been working on what was titled “Preamble Statement for the Evaluation of a Possible Increase in the Value of a Grant-in-Aid.”

A “grant-in-aid” is NCAA parlance for what is commonly known as an athletic scholarship – an award that, at present, can cover only the costs of tuition, fees, room, board and required course books. (A variety of other benefits are available to athletes, including access to funds that can be used to pay for an array of other needs.) But it is widely acknowledged within college sports that, on average, an athletic scholarship in its current form falls several thousand dollars short of covering the full cost of attending school – costs such as transportation to and from school.

The Student-Athlete Well-Being Working Group draft document said:

“The recent commitment to ‘fair competition’ over ‘competitive equity’ fostered by the Rules Working Group project recognizes that there are differences among institutions due to factors such as geography, resources and facilities, which may also support abandonment of a one-size fits-all solution to financial aid, especially if such a change would not substantially upset opportunities for fair competition among Division I members. Examples of benign increases in student-athlete assistance include former prohibited “extra” benefits that are now considered incidental to a student-athlete’s participation in intercollegiate athletics (e.g. medical expenses), and which are now permitted at the discretion of the institution. Such permissive legislation does not appear to be disrupting fair competition opportunities either in recruiting or on the playing field.

“Substantial revenue increases are expected by a third of the Division I membership by 2015, while most other members of the division will see only modest increases through NCAA distributions in the foreseeable future. The growing revenue and expense gaps will increase stresses on spending and debates about necessary and appropriate benefits to individuals, student-athletes and athletics programs. …

“Accordingly, evaluation of possible enhancements to the value of a grant-in-aid that might cover additional educational expenses up to the applicable cost of attendance is neither contrary to the ‘Collegiate Model’ of intercollegiate athletics where education is paramount, nor contrary to reasonable standards of ‘Fair Competition’ or ‘play for pay’ Amateurism principles.”

This article was selected for educational purposes only.

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