On Friday, the judge in the Alston case asked the judge in the O'Bannon case to review whether the two actions should be bundled together, as both address the compensation of players. The new lawsuit Kessler filed is broader in scope. It makes no claim on specific revenues, only that athletes should be treated like other students, who are not subject to educational or financial compensation caps by agreement among universities. High-value students in areas like physics receive whatever the market will bear, in some cases a full scholarship plus cash.
Ramogi Huma, a former UCLA linebacker and central figure in several of recent actions against the NCAA, told ESPN's "Outside the Lines" he advised Kessler as the lawsuit was being assembled. Huma is both president of the National College Players Association, a longtime advocacy group, and the College Athletes Players Association, a newly created entity which submitted the union cards to the NLRB on behalf of Northwestern players.
"The players couldn't have secured better representation than Jeff Kessler," Huma said. "The NCPA endorsed this lawsuit in large part because Jeff is the lawyer and he's focusing on injunctive relief."
Huma was involved in a lawsuit several years ago that began to chip away at the NCAA's unquestioned control over player compensation. White vs. NCAA asked a federal court to allow schools to cover the cost of attendance, and scored a major victory when the judge certified the players as a class, raising the prospect of trebled damages if they prevailed at trial. But lawyers settled the case, to the regret of Huma, who felt more progress could have been made if legal fees had not piled up. The NCAA agreed to make more funds available to athletes to cover miscellaneous expenses but did not commit to allowing cost of attendance, much less change its compensation model.
Since then, NCAA president Mark Emmert and major-conference commissioners have expressed a desire to push the value of scholarships up to the cost of attendance but so far have been rebuffed by colleges with lesser resources. Emmert has said that any payment beyond that amount is not a move his constituents would ever support, and he has expressed his commitment to preserving a ban on outside, athletics-related income as well.
Kessler said he is confident the courts will strip the NCAA of its ability to retain those controls, given the media revenues flowing into college sports. In 2010, CBS and Turner Sports agreed to a 14-year contract to televise the men's NCAA tournament worth $11 billion, a 41 percent bump. ESPN paid $5.64 billion over 12 years to create the College Football Playoff, which will be introduced with the 2014 season.
"I can't say enough about the courageous players standing up for the rights of current and future college athletes," Huma said. "America is a capitalist nation with laws to protect the free market. We've fought wars and lost soldiers to defend our economic system. The NCAA's cap on players' compensation is both un-American and illegal."
It's hard to predict how college sports might be impacted if players are granted the equivalent of free agency, Kessler said. But he warned against assuming the worst and expressed confidence that if his players win their challenge, college sports will emerge in a better place.
"This will end up saving college sports," he said. "It will end up with fair treatment for athletes and a more sustainable, attractive product and system that everyone can get behind, just like in football, basketball, baseball and hockey at the pro level. The owners in the 1970s said free agency and competition for players would destroy those sports. All you have to do is look at those sports today -- just the opposite has happened."