On the heels of last week’s filing of Alston v. NCAA, a group of plaintiffs have filed another antitrust suit against the NCAA relating to the limitations placed on athletics aid. This group is represented by famed antitrust/labor lawyer Jeffrey Kessler who is commonly known for representing the NFLPA and NBPA. Although Jenkins v. NCAA is similar to Alston v. NCAA, it is also quite different. Specifically, the Jenkins plaintiffs are not arguing that student-athletes should be entitled to receive athletics aid up to the full cost of attendance. The Jenkins plaintiffs claim they are entitled to compensation and, thus, the athletics scholarship model is a price fixing restraint on athlete compensation.
Historically, courts have sided with the NCAA and upheld the virtues of amateurism when faced with similar claims. In cases like Jones v. NCAA and McCormack v. NCAA, courts have relied on language from Board of Regents v. NCAA that states most NCAA rules will fall under the framework of amateurism as a procompetitive justification to anticompetitive restraints. To the contrary, recently in O’Bannon v. NCAA the court concluded that the United States Supreme Court has never addressed whether student-athletes can be compensated. Accordingly, the court in O’Bannon v. NCAA decided against following the United States Supreme Court dicta relating to amateurism. Over the last few years, the attitude at the courthouse has seemed to change and be less favorable for the NCAA. Although the NCAA has an enormous history of success in antitrust litigation, these many mounting cases seek to change the fortune of student-athletes and the model for intercollegiate athletics. In fact, Mr. Kessler has specifically stated that is the goal of Jenkins v. NCAA.