On Friday, as March Madness was in full swing, the NCAA filed an appeal of the Jenkins decision explored more fully in a previous post.  Donald Remy, the NCAA’s chief legal officer, issued the following statement:

“The NCAA’s longstanding commitment, supported by its schools and conferences, is to provide student-athletes with the educational benefits they need to succeed in school and beyond. While the District Court upheld the distinction between full-time students who play college sports and professional athletes, it erred by giving itself authority to micromanage decisions about education-related support. We believe, and the Supreme Court has recognized, that NCAA member schools and conferences are best positioned to strengthen and revise their rules to better support student-athletes, rather than forcing these issues into continuous litigation. The NCAA and conference defendants unanimously agree to appeal the District Court’s decision.”


As noted in the prior post, there are many inconsistencies in existing court precedent and in the Jenkins decision itself which do not add up to the conclusion that “NCAA member schools and conferences are best positioned” to regulate the benefits student-athletes receive (not their conduct!) in return for their agreement to perform for their institutions.  It is also somewhat ironic to see the NCAA decry the holding as an attempt to “micromanage” anything.  (Has Donald Remy SEEN the NCAA Manual?)

In her decision, Judge Claudia Wilken of the Northern District of California sought to strike a balance between preserving the traditional deference to the NCAA as the bastion of amateur collegiate athletics while acknowledging the undeniable anti-trust impact of its eligibility restrictions upon student-athletes.  Judge Wilken ultimately determined that NCAA rules restricting schools from competing in the education-related benefits offered student-athletes violate the Sherman Anti-Trust Act.  The decision will now be appealed to the Ninth Circuit.  It is anticipated that the ramifications of Judge Wilken’s holding will be stayed pending the appeal.

The Supreme Court declined to hear the O’Bannon case in which the NCAA’s restrictions upon student-athletes’ capacity to earn revenue from their names, images and likenesses were challenged in front of Judge Wilken and also appealed to the Ninth Circuit.   It remains to be seen if the Jenkins case will be heard by the Supreme Court.  Given the significance of the issues to both parties, however, it is highly likely that, whatever the outcome in the Ninth Circuit, an appeal to the highest court will be forthcoming.

Photo: USA Today





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Helen A. “Nellie” Drew is an expert in sports law, including professional and amateur sports issues ranging from NCAA compliance and Title IX matters to facility construction, discipline of professional athletes, collective bargaining and franchise issues. Drew formerly served as an officer and in-house counsel to the Buffalo Sabres of the National Hockey League, after previously working as outside counsel to the Sabres and the NHL. Among her more interesting experiences were assisting former USSR superstar Alexander Mogilny in obtaining asylum status in the U.S. and working on multiple NHL expansions, including San Jose, Ottawa, Florida and Tampa Bay.
Drew teaches a variety of courses that incorporate topics such as drug testing in professional sports and professional player contract negotiation and arbitration. She is especially interested in the evolving research and litigation concerning concussions in both amateur and professional sports.

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