At closing arguments in the latest challenge to the National Collegiate Athletic Association’s limits on compensating athletes in college sports, a high-profile attorney representing the association seemed to be gearing up for an inevitable appeal.
Beth Wilkinson of Wilkinson Walsh + Eskovitz on multiple occasions during Tuesday’s four-hour hearing told U.S. District Judge Claudia Wilken that she disagreed with the judge and that Wilken was mistaken about some underlying facts.
“That’s just wrong,” said Wilkinson after the judge said that some conferences and schools already enforce compensation rules on their own. Wilkinson also corrected the judge when she implied that teams from different conferences only play each other in the postseason.
The underlying case involves a class of current and former student-athletes in Division 1 football and men’s and women’s Division 1 basketball. Plaintiffs claim that the NCAA’s limits on scholarships and benefits that student-athletes can receive as compensation for their athletic performance violate antitrust law.
Wilken opened Tuesday’s closing arguments by saying that it “seems very clear” that the NCAA violated antitrust laws. But Wilkinson disagreed.
“We have not ever conceded that there was an antitrust violation,” she said. Although Wilkinson conceded that the judge found a “restraint on trade” on summary judgment, she insisted that her client hadn’t conceded that it violated the antitrust laws.
“You want to tell me there is not an agreement to restrain trade?” Wilken asked. “An agreement to restrain trade that affected interstate?”
On summary judgment in March, Wilken sided with the plaintiffs’ team, which includes Hagens Berman Sobol Shapiro’s Steve Berman and Winston & Strawn’s Jeffrey Kessler. The judge wrote that she found “undisputed evidence” that college football and basketball players would be offered greater compensation and benefits during recruitment without the existing NCAA limits.
Wilken’s ruling required lawyers for the NCAA and member conferences to show during the ensuing bench trial that limits on player compensation help drive consumer demand for college sports and create an atmosphere that helps college-athletes integrate into their school communities.
Bart Williams of Proskauer Rose argued Tuesday on behalf of the conferences. Williams said that compensating college athletes could change the incentive structure in ways that cause them to focus on athletics more and their studies less.
“Their incentive to go to class, their whole focus on the academic side of things would change,” said Williams, adding that an increase in compensation to athletes could also drive a wedge between the athletes and their classmates. “There already is a perception on many campuses that the athletes are favored in some way.”
Hagens Berman’s Steve Berman responded for the plaintiffs that the NCAA had produced no evidence during the bench trial showing that an increase in competition to compensate college athletes would result in problems with them integrating into the academic culture. The case, Berman noted, was not challenging the NCAA’s academic eligibility rules. Berman also said that after a prior legal challenge resulted in colleges raising their limits to the actual cost of attendance at schools, graduation rates for athletes actually went up. “There has been a positive relationship between increased benefits and academic” performance, he said.
Wilken asked the lawyers for help in finding a framework to balance the anticompetitive effects of the NCAAs restraints and the procompetitive effects the league claims amateurism has on the college sports market. But when walking through the plaintiffs’ different forms of proposed injunctions, the judge did sound persuaded that the individual conferences could set the compensation rules in ways that might be more beneficial to college athletes.
When the judge asked Wilkinson to walk through which of the plaintiffs’ proposals was most workable to the NCAA, the NCAA’s lawyer urged the judge to leave the current regime in place. The plaintiffs, Wilkinson argued, had offered no evidence of what economic impact their changes would have on college sports as a whole.
“You have a national regulatory scheme that keeps the product in place and popular,” she said.