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Thursday, September 11, 2014
NCAA Relies on O'Bannon Ruling to Support its Motion to Dismiss the Jenkins Lawsuit

Last week, 32 lawyers from 11 law firms signed a motion to dismiss the Jenkins class action.  In support of their motion, which the defendants would like to have heard before Judge Claudia Wilken, the defendants are using Judge Wilken's ruling in O'Bannon against the class in the Jenkins case.  The defendants suggest that a ruling in favor of the Jenkins class would directly conflict with Judge Wilken's decision and injunction in O'Bannon.  On page 1 of the motion, the defendants argue:
In [the O'Bannon case], this Court held that appropriate limits on the amount of compensation that student-athletes may receive while in school are lawful under Section 1 because they serve the procompetitive goals of (i) maximizing consumer demand for amateur student-athlete intercollegiate sports and (ii) integrating student-athletes into the academic communities of their schools, which in turn improves the education the schools offer.  Accordingly, this Court determined that the NCAA and its members mayconsistently with federal antitrust lawagree to limit the compensation that student-athletes in Division I (“D-I”) men’s basketball and Football Bowl Subdivision (“FBS”) football may receive each year for their participation in intercollegiate athletics, provided that those limits are not less than (i) the full cost of attendance, as defined in 20 U.S.C. § 1087ll, and (ii) $5,000 per student-athlete, distributed on a deferred basis.
But in a footnote to that second sentence, the defendants say:
Nevertheless, the NCAA and its member conferences and schools respectfully disagree with the Court’s ruling in O’Bannon, including its determination that the challenged rules constituted an unreasonable restraint of trade, as well as with the Court’s determinations of (a) the appropriate cap on student-athlete compensation, (b) whoas between the Court and the NCAAshould be permitted to set that cap, and (c) the legal significance of the Supreme Court’s statements in NCAA v. Board of Regents of the University of Oklahoma, 468 U.S. 85, 101- 02 (1984), that the NCAA’s eligibility and compensation rules are procompetitive because they differentiate collegiate sports from professional sports and thus give consumers a product that might otherwise be unavailable. 
If your head is spinning right now, you're not alone.

So my first question is, does the NCAA agree with the O'Bannon ruling or not?

If the NCAA disagrees with the ruling, why is it using such ruling to support its motion to dismiss the Jenkins case?

My final question relates to how the motion to dismiss should impact an appeal of the O'Bannon ruling by the NCAA.  If the NCAA is using the O'Bannon ruling as the basis for having the Jenkins case dismissed, should the NCAA be estopped from arguing that the O'Bannon ruling is incorrect?    


It's called arguing in the alternative. Lawyers are permitted to voice even contradictory theories. The judge can dismiss the case either way, by agreeing that the O'Bannon ruling is against the plaintiffs, or by going even further and saying that the O'Bannon ruling is just plain wrong and the NCAA should basically be allowed to keep going as it has been (probably won't happen).

Anonymous Anonymous -- 9/23/2014 10:43 AM  

Typically, arguing in the alternative doesn't entail telling a judge that you disagree with her ruling but would like to use it to dismiss another case against you in front of that same judge....And then subsequently appeal that ruling (the ruling you just relied on to dismiss the other case).

Blogger Rick Karcher -- 9/28/2014 11:52 AM  

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