College athletes who want to be paid for their services by the National College Athletic Association, have found a powerful allie as they continue to take legal steps against what they consider unfair rules abuse by the governing body for college sports.
Jeff Kessler, a highly successful anti-trust attorney who helped bring free agency to the National Football League, is about to turn his attention to unpaid athletes who generate more than $16 billion in college sports television contracts, primarily in football and basketball. Kessler is a partner at New York-based Winston & Strawn LLP, which is starting the first college-focused division at a major law firm to represent players, coaches, schools and conferences against what Kessler, 59, described as “the unbridled power and influence” of the National Collegiate Athletic Association.
This blockbuster story was first reported by Bloomberg News’ writer Scott Soshnick, who nailed the subject and possible disasterous financial consequences for the NCAA if it loses in court, with some strong reporting.
Ed O’Bannon, a former basketball All-American at UCLA who is suing the NCAA over the use of his image in commercial ventures, reacted to the news by telling Bloomberg, “Wow! Jeff Kessler.”
“If players coming out of high school had some type of representation, or if somebody like Jeff initially made sure the players are represented in the right fashion, where both parties are happy with the deal, then a lot of this stuff wouldn’t even happen.”
The NCAA has refused comment in Kessler’s entrance into an escalating legal battle.
But these are unsettling times in Indianapolis.
Last week, Electronic Arts, Inc. (EA), agreed to settle a lawsuit brought by former college athletes over use of their likeness in video games, leaving the NCAA as the lone defendant. The company canceled plans for next year’s college football game, citing unsettled litigation between the plaintiffs and the NCAA, whose chief legal officer, Donald Remy, told USA Today his organization would take the matter to the U.S. Supreme Court rather than settle.
Kessler has represented the interests of high profile athletes ranging from six-time NBA Most Valuable Player Michael Jordan to three-time Super Bowl-winning quarterback Tom Brady. He has worked for the unions of all four major North American professional leagues, according to his bio released by Columbia University, where he is a lecturer in law. He was the main litigator in McNeil v. the NFL, the landmark anti-trust 1992 jury trial that produced the current system of free agency for players in this country’s most popular league.
Kessler negotiated the current free agency/salary cap systems in the NFL and NBA, and successfully represented Latrell Sprewell in his controversial suspension arbitration. He also represented pro bono Oscar Pistorius, the double amputee athlete, in his successful arbitration to obtain the right to compete against able-bodied athletes around the world.
The plaintiffs in the likeness case say a victory over the NCAA could reduce the $6.4 billion in annual revenue universities earn from athletics by as much as 50 percent. Any drop in revenue from football or basketball could start an avalanche that likely will prompt the elimination of other, less-visible sports or turn them into club sports. In 2011-12, only 23 of the 120 athletic departments with Football Bowl Subdivision programs reported a profit, according to NCAA figures obtained by Bloomberg. Only football and men’s basketball usually turn a profit, it said.
