Court filing: NCAA, conferences say scholarships could be reduced

The NCAA and a group of 11 major conferences say that if rules restricting what athletes can receive for playing college sports are eliminated, it would "likely lead many — if not most" Division I schools to reduce the number of scholarships for players on football, men's basketball and/or women's basketball teams.

The assertions came as part of filing Thursday night in which the association and the conferences asked U.S. District Judge Claudia Wilken to not allow a pair of lawsuits to proceed as class actions.

The suits seek injunctions that would essentially allow unlimited compensation for Bowl Subdivision football players, as well as for Division I men's basketball and women's basketball players.

One of the cases began on behalf of former West Virginia football player Shawne Alston, who is no longer involved as named plaintiff. It was consolidated with other suits and now covers football, men's basketball and women's basketball players in the 10 FBS conferences and the Western Athletic Conference. It is being led, in part, by lawyers from Hagens Berman Sobol Shapiro LLP, the same firm that is involved in an array of cases against the NCAA and represented former Arizona State and Nebraska football player Sam Keller in a suit before Wilken that also involved video game manufacturer Electronic Arts and eventually settled.

The other case is being pursued on behalf of plaintiffs led by former Clemson football player Martin Jenkins and two current Wisconsin athletes — basketball player Nigel Hayes and football player Alec James. It covers football and men's basketball players in the power conferences, and it is being directed by Jeffrey Kessler, who gained renown for his representation of professional sports players' unions and involvement in a case that set the stage for NFL free agency.

If the cases are not certified as class actions, they become limited to the named plaintiffs only. For them to be certified by a judge as class actions, the plaintiffs must demonstrate, among other things, that the case involves questions of law or fact that are common to the prospective wider class and that the named plaintiffs "will fairly and adequately protect the interests of the class."

In Thursday night's filing, the NCAA and the conference's used an expert's report and excerpts of depositions from various named plaintiffs to assert that elimination of the NCAA's rules "would be sure to produce vigorous recruitment or and substantial payments to the most talented athletes — a group that allegedly includes the named plaintiffs themselves … But there can be no doubt that the requested injunction also would lead to the reduction or elimination of scholarships and athletic opportunities for many of the thousands of less renowned student-athletes whom the named plaintiffs claim to represent …"

If Wilken's ruling and injunction in the Ed O'Bannon antitrust case are upheld on appeal, schools would have little ability to reduce the value of scholarships for FBS football players and Division I men's basketball players. She ruled that while the NCAA would be allowed to cap the amount of compensation that may be paid to athletes while they are in school, the NCAA would not be permitted to set this cap below the cost of attendance.

The NCAA and the conferences wrote that Jenkins said in his deposition that "he was sure that his teammates who left Clemson early to play professional football would have stayed at Clemson longer if they had been paid to play college football." This, said the NCAA and the conferences, would result in some potential class members being on teams in roster slots that would otherwise go other potential class members.

In addition, citing the depositions of Jenkins, Hayes, James and others, the NCAA and the conferences argued that because athletes are "prepared and able" to play FBS football and Division I men's and women's basketball as walk-ons, the lifting of rules limiting athlete compensation would result in schools concentrating their financial resources "on compensating superstars" and in "many players being paid less than they currently receive in financial aid."

The plaintiffs in the two cases have until May 28 to respond to Thursday night's filing. Wilken has scheduled a hearing on the class certification issue for July 23.