The recent ruling in the O'Bannon case shows the NCAA and their restrictions are subject to challenge on a number of different fronts. While the O'Bannon case involves intellectual property rights, New York sports law attorney's, David Feher and Jeffrey Kessler have filed a separate federal lawsuit against the NCAA looking to prove that they have been engaging in practices consistent with an illegal cartel for decades, resulting in substantial economic loss for athletes.
The lawsuit filed on March 17 in federal court in New Jersey, on behalf of Clemson defensive back Martin Jenkins, Rutgers basketball player J.J. Moore, UTEP tight end Kevin Perry, and Cal tight end Bill Tyndall - has presented claims that could bring an end to college athletics as they are currently organized and revenue shared. A copy of the action, which was filed in Federal Court in New Jersey, is available here.
On this weeks Speaking of Justice, we were joined by Attorney David Feher who stated that in the past, the NCAA would make the argument that most college sports were appropriately defined as amateur endeavors and that the players on the field were, according to their self created definition, "student athletes". However, in recent years with the awarding of multi-billion dollar TV contracts, multi-million dollar sponsorship contracts and the resulting explosion in coaching contracts and facility construction on university campuses, the claim made by the NCAA and member schools that college football and men's basketball are in any way amateur sports is being viewed as a self serving farce by many.
As the press, courts and citizens increasingly come to the realization that these are billion dollar businesses, and that the NCAA is running commercial enterprises, making huge amounts of money for the NCAA and member schools. That it is clear all kinds of entities and individuals are making a great deal of money off the efforts of the student athlete and that a sense of size and nature of that injustice is building, Feher says. "That's not only wrong but it is also in direct violation of the anti-trust laws of the United States."
In the interview, Attorney Feher refers to the NCAA an "unlawful cartel," because it is set up with rules that don't give the schools the freedom of choice in how they treat or compensate their "student athletes". Under the current governing structure of the NCAA, an agreement is set up between the member schools that they'll pay for athletes up to a certain amount but, that they won't pay a penny more than any other school, which according to Attorney Feher, is a classic price-fixing arrangement in the labor market.
In conclusion, Attorney Feher believes that the NCAA should comply with the anti-trust laws and stop engaging in price-fixing and preventing member schools from deciding what to pay their players and how to fairly compensate them. "There's a need for fundamental change" and not just having a few bones thrown such as expanded meals or slightly better health care.
He also clarified that his case is seeking to get a ruling for injunctive relief and not determine damages at this point in time. As a result he believes the judge should be able to move through this case in an expedited fashion and accelerate a decision on the crucial primary arguments. We are "going to push this thing full speed ahead," according to Attorney Feher.
David Feher is a litigation partner in the firm’s New York office of Winston and Strawn and co-chair of the firm’s sports law sub-practice group. He is one of the leading sports lawyers in the country. He has extensive experience in complex litigation's, negotiations and arbitration's involving contract, intellectual property, antitrust and international issues.
Mr. Feher has been outside counsel for the NFL Players Association and the NBA Players Association for many years. He is one of the prime negotiators of the collective bargaining agreements and antitrust settlements in the NFL (1993, 1996, 1998, 2002, 2006 and 2011) and the NBA (1995, 1999, 2005 and 2011).
Mr. Feher has represented clients in many prominent sports lawsuits and arbitration's, including the Jenkins v. NCAA antitrust action challenging NCAA and major conference restrictions on competition for player services in Division I basketball and Football Bowl Subdivision (FBS) football, the Oakley/Rory McIlroy/Nike litigation (concerning a right of first refusal in Mr. McIlroy’s contract with Oakley, which resulted in a settlement with Mr. McIlroy), the NCAA/NIT litigation (which resulted in a favorable settlement for the five New York City colleges and universities that operated the NIT), the Reggie White and Patrick Ewing class actions, the NFL lockout insurance/network TV contract case,