Plaintiffs ask court to reject NCAA's motion for a stay in O'Bannon case
Lawyers for the plaintiffs in the Ed O’Bannon antitrust case on Monday colorfully and combatively urged the 9th U.S. Circuit Court of Appeals to reject the NCAA’s request for a stay of an injunction that on Saturday would allow schools to begin offering football and men’s basketball players as much as $5,000 per year in deferred compensation for the use of their names, images and likenesses.
The injunction was issued in August 2014 by U.S. District Judge Claudia Wilken, who found that the NCAA's rules at the time that basically limited athletes to tuition, room, board, books and fees “unreasonably restrain trade” in violation of antitrust laws. It is due to take effect Saturday, when schools can begin sending written offer letters to athletes who are heading into their senior year of high school.
Incoming and returning Bowl Subdivision football players and Division I men's basketball players could begin receiving credit for the deferred pay beginning in the 2016-17 school year.
However, on July 17, the NCAA asked the court for a stay, arguing that the association “and many schools and students” will be “irreparably harmed” if the injunction takes effect as scheduled, even if it is later vacated by the 9th Circuit or by the Supreme Court. The 9th Circuit heard oral arguments on the NCAA’s appeal in March, but has not yet ruled.
On Monday — the last day of a 10-day period in which they were allowed to respond — lawyers for the plaintiffs said 9th Circuit should recognize the NCAA’s bid for the stay “as nothing more than a frantic defendant hoping to preserve a profitable anti-competitive scheme for a few more months."
The NCAA has seven days to respond to Monday's filing, but it is likely to do so as quickly as possible.
NCAA spokeswoman Stacey Osburn said the association had no comment on the plaintiffs’ filing.
The maneuvering comes as the NCAA and schools are facing a potential quandary about how to proceed if the injunction takes effect as scheduled — especially given a combination of the NCAA Division I rules and an interpretation that the NCAA made in October 2013 regarding athletes who intend to graduate from high school midyear and enroll in college in the same academic year, as some football players now do.
If the injunction takes effect, it theoretically will be possible that on Saturday, a school could offer — and a recruit could sign — an institutional financial aid agreement that includes the deferred compensation. Because NCAA rules now generally prevent schools and coaches from choosing not to renew an athlete's scholarship for athletic reasons — these could become multiyear commitments.
On a wider scale, schools can make written offers beginning Aug. 1, but athletes cannot sign them until the beginning of the applicable National Letter-of-Intent signing period. This year’s early signing period for basketball and other sports begins Nov. 11.
“We haven’t had any formal discussions” about how to proceed, Kentucky deputy athletics director DeWayne Peevy told USA TODAY Sports on Monday. “But this is one thing that could be a little competitive among schools.”
Ohio State athletics director Gene Smith said his school does not send out written offer letters until the Letter-of-Intent signing periods, but he added: “There are lots of questions around.” He said that there are previously scheduled Big Ten Conference meetings later this week, and “hopefully we’ll get some guidance.”
Meanwhile, the plaintiffs made their case against the stay, beginning by noting that the NCAA had begun its effort for the stay eight months after filing its opening appeals brief and nearly a year after Wilken’s ruling.
They called the NCAA’s argument concerning the potential for irreparable harm if the injunction takes effect “hardly a sympathetic position.” They wrote that under the injunction, “member schools that have the resources and desire to offer more as part of their recruiting package will do so, unilaterally. That they might wish to avoid this sort of competition and those financial resources for other purposes is not a reason for a stay.”
They added that “it is difficult to comprehend how financial offers of a small fraction of a school’s annual room, board and tuition might trump a college athlete’s consideration” of where it is best for him to attend school. “The NCAA’s paternalism knows no bounds,” the plaintiffs added.
“The simple fact,” they wrote, “is that no member school needs to change a thing under the injunction if it does not wish to do so. If the NCAA is correct, and modest compensation to college athletes is truly so thorny, no member school will choose to offer it after Aug. 1, 2015.”