Source: USA TODAY
Lawyers for the plaintiffs in an anti-trust lawsuit against the NCAA concerning the use of college athletes’ names and likenesses continued Monday to press their argument for a ruling in their favor without a trial while giving strong indications of what their case may look like if the case does fully play out in a courtroom.
In another voluminous set of filings, they indicated they are prepared to make issues of a variety thorny college sports topics, including commercialization of games, illegal payments to players, academic fraud and low graduation rates, schools’ spending on coaches’ salaries and facilities, and schools dropping various sports teams.
Both sides in the case have filed a motion for summary judgment – a decision based on a case’s pre-trial record of documents and hearings. As a result, both sides have made filings supporting their respective cases for summary judgment and opposing the other side’s case. In addition, U.S. District Judge Claudia Wilken is scheduled to hold a hearing on the issue Feb. 20.
If she refuses to grant summary judgment to either side, a trial is set to begin in June.
However, according to the NCAA, that schedule is threatened by a request for documents from the plaintiffs that the NCAA says is “overbroad” and “would impose undue burden on the NCAA.” In a separate filing Monday, the NCAA reiterated that it has offered a compromise solution to the plaintiffs’ request that would otherwise take “three to four of the five months before trial is scheduled to begin.”
The NCAA’s filing on the dispute said the association has spent “millions of dollars in fees and costs collecting, processing, reviewing and producing more than 90,000 documents (spanning more than 600,000 pages)” and it would likely need to review “well more than 100,000″ additional documents if the plaintiffs’ request is granted. Magistrate Judge Nathanael Cousins has set a hearing on this matter for Jan. 22.
As for the summary judgment fight, the NCAA has argued that plaintiffs cannot claim that college athletes are entitled to compensation for the use of their names and likenesses in live TV broadcasts because the First Amendment protects what is considered under the law to be “non-commercial” speech – in this case, says the NCAA, coverage of “matters of intense public interest.”
In Monday’s filing, lawyers for the plaintiffs wrote that “game broadcasts are commercial speech. Determining what is commercial speech depends upon considering a complex of factors, including the use of advertisements, the economic motivations involved and the reference to a product; the presence of all three support strongly a finding of commercial speech.”
The plaintiffs then went about detailing the various forms of advertising, sponsorship deals and games televised under “hugely lucrative exclusive broadcasting contracts, something hardly consistent with the notion that these are news events in the public domain.”
The NCAA has argued that the preservation of its definition of amateurism helps make college sports more popular with fans than they would be if the NCAA’s restriction on what athletes can receive for playing sports were lifted. The plaintiffs wrote that “despite the NCAA’s pronouncements of amateurism, many colleges and universities also give secret compensation to (student-athletes) in violation of the NCAA’s rules. Every other month seems to bring news of a new scandal involving secret payments to” college athletes.
The NCAA has argued that restricting what athletes can receive for playing sports helps integrate athletes and athletics into colleges’ academic environments – a contention that plaintiffs attempted to refute by citing recent news reports about academic fraud at a variety of schools, most recently the University of North Carolina, and the relatively low graduation rates of Division I football and men’s basketball players.
The plaintiffs’ lawyers also took on the NCAA’s contention that the end of limits on compensation for football and men’s basketball players would have an adverse impact on women’s sports and other men’s sports. They said that “given the vast amounts spent on Division I coaching staffs and hugely expensive football/basketball facilities, some cost-cutting and reallocation of saved money is entirely possible.”
They referred to a report from one of their economic experts, Daniel Rascher, that states the salaries of the top-paid NCAA Division I football coaches rose by 59% from 2007 to 2012 while the salaries of the top-paid NFL coaches rose by 25% during the same period. Rascher’s report also said the salaries of the top-paid Division I men’s basketball coaches rose 112% from 2005 to 2012 while the salaries of the top-paid NBA coaches rose 12% during that period.
In response to the plaintiffs’ filing, the NCAA released a statement Monday in which its chief legal officer, Donald Remy said the plaintiffs “continue to argue legal theories that the courts have repeatedly rejected, and that would have the regrettable effect, if accepted, of reducing athletic and educational opportunities for the overwhelming majority of male and female student-athletes. We look forward to further presenting our arguments in our reply brief, on Feb. 3, and at the Feb. 20 hearing before the Court.”
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