Mark Emmert said Sunday that the NCAA will appeal a ruling that opens the door for college athletes to receive some of the money they help generate in major sports.
NCAA seeks clarification in O'Bannon ruling
MICHAEL MAROT, AP Sports Writer
The NCAA is going back to court in Oakland, California -- to clarify two points in U.S. District Judge Claudia Wilken's ruling.
Attorneys for the governing body filed a three-page legal brief Monday in California, asking for clarification of which players will be eligible.
Wilken wrote Friday, in the landmark Ed O'Bannon case, that the decision would apply to athletes who enroll in school after July 1, 2016, or the next recruiting cycle.
The NCAA claims the term "next recruiting cycle" could be ambiguous and would like the court to establish a clearer date. NCAA attorneys also wrote that its member schools want clearer language about who the ruling actually applies to.
"Under existing NCAA rules, student-athletes in the next recruiting cycle (i.e., student-athletes who would first enroll in college in Fall 2016) may receive offer letters from colleges starting on August 1, 2015. Bylaw 188.8.131.52. NCAA seeks to confirm that the existing NCAA rules can remain in force until August 1, 2015, although we understand the injunction would not permit the NCAA to adopt or enforce rules inconsistent with the injunction on or after that date," attorneys wrote in the filing, pointing out that is the first day schools can offer scholarships to players in the 2016-17 recruiting class.
On the second point, the NCAA contends, is Wilken's language regarding the "licensing or use of prospective, current, or former student-athletes" could be interpreted to apply to current players.
"This has prompted concerns among colleges and universities that the injunction might, contrary to the Court's opinion, apply immediately to current student-athletes," the attorneys wrote. "Based on the Court's opinion, the NCAA believes the language of Paragraph 1 refers to compensation only for student-athletes first enrolling after July 1, 2016. Otherwise the injunction would permit colleges and conferences to compensate current student-athletes before the NCAA's member colleges have an opportunity to consider new rules consistent with the injunction."
Attorneys wrote that they want the clarifications to ensure that there are no violations of the permanent injunction Wilken imposed, which allows players at big schools to have money generated by television contracts put into a trust fund to pay them when they leave. Wilken said the body that governs college athletics could set a cap on the money paid to athletes, as long as it allows at least $5,000 per athlete per year of competition. Individual schools could offer less money, she said, but only if they don't unlawfully conspire among themselves to set those amounts.
NCAA President Mark Emmert said Sunday that the governing body would appeal "at least in part" the ruling.
"We look forward to presenting our arguments on appeal, and in the meantime we will continue to champion student-athlete success on the field and in the classroom," NCAA chief legal officer Donald Remy said in a statement released after Emmert's announcement.
Winning on appeal could be a major challenge given the venue, California.
Though the NCAA has a stronger historical record in appeals courts, where a recent University of Illinois study found that it wins 71 percent of the time in both the second and third rounds of cases, this would go to the 9th U.S. Circuit Court of Appeals. Legal experts say that court has generally been a "labor-friendly" court, which could hurt the NCAA's chances of victory.
In the NCAA president's first public comments since Friday's ruling, Emmert told ABC's "This Week With George Stephanopoulos" that college sports' largest governing body found a lot in the decision that was "admirable" and some parts they disagreed with so strongly that they could not let it go unchallenged in court.
"Yes, at least in part we will," Emmert said when asked whether the NCAA planned an appeal. "No one on our legal team or the college conferences' legal teams think this is a violation of antitrust laws and we need to get that settled in the courts."
The NCAA's decision to challenge the ruling is hardly a surprise.
Donald Remy, the organization's chief legal officer, had repeatedly said that if the NCAA lost, it would appeal the case all the way to the U.S. Supreme Court if needed. Many legal experts think this case could be heading that direction, though it's unclear whether the nation's highest court would take it.
"We remain confident that the NCAA has not violated the antitrust laws and intend to appeal," Remy said in a statement released following the television show. "We will also be seeking clarity from the district court on some details of its ruling.""
Joseph Farelli, an attorney with the New York-based law firm of Pitta & Giblin who specializes in labor law, said the NCAA didn't have a choice after U.S. District Judge Claudia Wilken on Friday shot down the NCAA's argument that its model of amateurism was the only way to run college sports. Wilken wrote that football players in FBS schools and Division I men's basketball players must be allowed to receive at least $5,000 a year for rights to their names, images and likenesses, money that would be put in a trust fund and given to them when they leave school.
"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 told The Associated Press. "If they don't appeal, now you have a federal court precedent."
If the NCAA allowed that decision to stand, Farelli said, it could lead to even more litigation against the NCAA on hot-button topics such as Title IX and whether there should be any cap on how much money athletes should receive.
Emmert acknowledged Sunday that Wilken's decision could lead to a fundamental shift in college sports.
Historically, the NCAA fares better in the appellate system. According to a study released last month by Illinois professor Michael LeRoy, student-athletes suing the NCAA won 49 percent of the initial cases but the NCAA won 71 percent of the appeals in both the second and third rounds.
This time could be different because of the venue.
"The problem for the NCAA is that the appeal will be in the Ninth Circuit, and the Ninth Circuit is generally a labor-friendly circuit. Looking from the outside, it would likely favor O'Bannon," said Michael McCann, director of the sports and entertainment law center at the University of New Hampshire School of Law. "It depends on which judges get the case and we won't know that."
Emmert did applaud parts of the decision that allow the NCAA to enforce other rules and the imposition of the cap.
But by the time the payments are supposed to begin in 2016, the NCAA could be operating under new rules.
The board of directors voted Thursday to give the five richest conferences more authority to unilaterally change some of the rules, a move that paves the way for giving players enough money to defray all or most of their college expenses including those that go beyond current limit of tuition, room and board, books and fees.
"There's little debate about the need to do that," Emmert said, "and I think this move will finally allow us to get there."