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When the NCAA announced its latest concession to athletes and lawyers fighting to upend the college sports marketplace, the nonprofit conglomerate's statement - released just after 10 p.m. Friday - included a line that made famed sports labor lawyer Jeffrey Kessler laugh.
"The NCAA and conferences will continue to vigorously oppose the remaining portion of the lawsuit seeking pay for play. Plaintiffs' lawyers want to dismantle college sports, which has provided billions of dollars in scholarships and the opportunity for millions across 24 sports to earn undergraduate and graduate degrees," said the statement, which announced a $208.7 million settlement of part of a class-action lawsuit. The settlement, if approved by a judge, could send awards of $5,000 to $7,500 to thousands of current and former college football and basketball players.
In a phone interview Tuesday morning, Kessler, one of the lawyers the NCAA referred to in its statement, said he's moving "full speed ahead" with the rest of the class-action antitrust case, which ultimately seeks to undo the NCAA's restrictions against compensating college athletes.
If he and his clients win in court, Kessler reiterated Tuesday, no school will be forced to pay its football and basketball players. Schools would have the option to offer money to prized recruits, which Kessler contends would pave the way for a more equitable distribution of the billions of dollars generated at the top levels of college football and basketball.
"The NCAA's position is they will fight to the death because if ⅛Alabama football coach⅜ Nick Saban had to give back a few million dollars out of his $9 million contract so some impoverished kids could get a little bit more of the financial benefits out of the millions of dollars they generate, the world of college football and basketball would collapse as we know it? It's ridiculous," Kessler said.
Friday's settlement, if approved, will end a portion of a complex case that is actually a combination of multiple lawsuits, all filed by current and former college athletes. The settlement would send payments to thousands of athletes who played between 2009 and 2016 who did not receive "cost-of-attendance" stipends.
The stipends, which generally range from $3,000 to $6,000 per year, are calculated by schools and are intended to cover living expenses of college such as food and travel home. Many colleges, particularly in the wealthier so-called "Power Five" conferences, started offering these stipends to scholarship athletes in 2015.
The cost-of-attendance stipends are among several benefits colleges in the top tier of Division I have added for athletes over the past few years, as legal challenges to the status quo of college sports mounted by Kessler and others have gained momentum. Other changes include more generous food offerings and guaranteed four-year scholarships.
The NCAA's statement indicated the cost-of-attendance stipends represent a line in the sand in the continued litigation.
"The agreement maintains cost of attendance as an appropriate dividing line between collegiate and professional sports. In fact, the NCAA and conferences only settled this case because the terms are consistent with Division I financial aid rules," the statement read.
Regardless of the legal stance taken by the NCAA and college conferences, Kessler believes that in an open marketplace, some schools would decide to offer money to prized recruits. NCAA officials and conference commissioners argue this would force schools to slash money-losing sports. Kessler maintains schools could re-allocate cash that currently produces rising pay for coaches, front office administrators, and continuous renovation and rebuilding of facilities intended to attract talented high school football and basketball players.
Money could be offered in funds tied to graduation, Kessler noted, to incentivize staying in school.
"No one is going to force a school to pay anything," Kessler said. "It's all going to be about school choice, and schools will make intelligent decisions about this."
Kessler has handled numerous high-profile sports cases over the years, including McNeil vs. NFL, the case that effectively created free agency in the NFL. He also has represented players' unions in the NBA, NHL, and Major League Baseball, as well as several top players on the U.S. women's national soccer team who filed a federal complaint last year accusing U.S. Soccer of wage discrimination. (That complaint has not yet been resolved, Kessler said.)
Kessler said he and his colleagues have taken 30 or 40 depositions so far of officials at all levels of college sports — from the NCAA to conferences to coaches and athletic administrators at individual schools — and hope for a trial either later this year or in early 2018.
Kessler didn't rule out a settlement, but noted such a resolution would have to include structural changes to what colleges can offer athletes in the big-money sports of football and men's basketball who will never go on to play professionally.
"Could the NCAA sit down with us and craft a new system that is much fairer to the athletes, just like we've been able to do for the NBA and NFL? Absolutely, that's a possibility," he said.