Q&A: Jeffrey Kessler Discusses Alston v. NCAA’s Ninth Circuit Appeal and the Fight to Compensate Student-Athletes
Jeffrey Kessler, Esq. is one of the nation’s top legal advocates for athletes, having represented the U.S. women’s national soccer team, NBA players, NFL players, and NCAA student-athletes.1 Currently, he is leading the most recent antitrust case against the NCAA: Alston v. NCAA (In re NCAA Grant-in-Aid Cap Antitrust Litigation v. NCAA).2 That case—the trial court ruling of which resulted in an injunction against NCAA limits on athletes’ education-related benefits, such as graduate school tuition and paid internships—is now on appeal to the Ninth Circuit.3. On February 27, Jeffrey Kessler and I sat down for a conversation about this case and more. Below is the transcript of the interview, which has been condensed and edited for IPLJ Blog purposes.
Can you tell me about how you decided to become a lawyer?
When I was in high school, I got interested in both the legal and political issues of the times. I was in high school in the late ’60s, graduated in ’71…it was a very turbulent time in our country; there was a civil rights movement, birth of feminism, the anti-war movement, and many other things that were going on. I became aware of the power of legal issues to influence our society and at that time I thought I would go into politics as well. All that led me to think that my ultimate educational objective would be to go to law school.
What led you to litigating specifically on behalf of student-athletes?
Accident. I went to Columbia Law School and became very interested in antitrust. And as a result of that I joined Weil, Gotshal & Manges, which at the time had maybe the largest antitrust practice in New York City. Most antitrust practices were based in Washington, D.C. at that time and some other places. But they had a very large antitrust practice in New York. I liked the firm and the people, and I joined them. It happened that at that time Weil was just settling one of the only antitrust sports cases. It was called the Oscar Robertson class action on behalf of NBA players.4 As a result, when I joined the firm as that case was settling, I started as a very young lawyer doing a little bit of antitrust counseling work for the NBA Players Association. Then, a year later, in 1978, because I joined in ’77, an old soccer league called the North American Soccer League, which has the same name as a new soccer league called the North American Soccer League because they bought the rights, came to Weil. The old North American Soccer League came because of the Oscar Robertson case, to bring an antitrust case against the NFL over a rule that would stop NFL owners from investing in soccer teams. I got assigned to that case based on the work I had done on the Robertson case, and we ultimately went to trial and won in the Second Circuit. That case started to make us a destination for both players associations who had antitrust issues and other litigants who wanted to challenge the leagues. So, as I continued to develop as an antitrust lawyer, I also started to develop independently as a sports lawyer. And it took off from there. But when I went to Weil, I had no idea they even had a sports case. And it has some sense of irony and completion because one of the political issues that inspired me back in the 60s was athletes who were standing up for their legal rights like Muhammad Ali, John Carlos, Kareem Abdul-Jabbar, and people like that.5 And lo and behold, as my sports practice developed, I ended up working on very similar issues later in my career.
What specifically about the student-athlete compensation issue would you say is important, legally and generally?
It’s a fundamental economic right that we all should be subject to a competitive system to determine what value we’re adding as workers who generate revenues for those who are utilizing our services. And that’s what the athletes are in Division 1 Basketball and FBS Football. They are not just engaged in extracurricular activities. They are working at full-time jobs that generate billions of dollars. And yet they are not entitled to gain that compensation in a competitive system, so it is wrong legally and fundamentally unjust. Compounding the issue from a social justice standpoint is that the majority of these players are African American. So, you have both an economic unfairness to the entire classes and you have a skewed unfairness to people of color.
Absolutely. And speaking of that case, when can we expect a ruling on the appeal and cross-appeal of Alston v. NCAA?
Well, on March 9, I am arguing the appeal. So, we will hopefully get a decision within several months thereafter.
Regarding student-athlete name, image, and likeness licensing to third parties, do you anticipate there being future litigation about this particular issue?
There was. That was the O’Bannon case.6 There very likely could be further litigation about that depending on what now happens with the states and Congress. So, the state of California has passed a law that will require all California schools to allow their athletes to earn independent revenues from licensing their names, images, and likenesses. That takes effect, I believe, in 2023. The NCAA is both working on its own proposals to start allowing that and has also threatened to sue over the California legislation. There are also many other states who are in the process of enacting laws and Congress is looking at this issue. So, will litigation again come out of that mix? I think there is some significant chance that it will, but we’ll have to see how that develops.
And generally speaking, in antitrust analysis, obviously the courts look at consumer welfare as one of the primary factors. Do you think the analysis is perfect the way it is now, or would you like to see factors other than consumer welfare added?
First of all, it’s important to understand that consumer welfare in economics doesn’t just mean consumers buying the products and doesn’t just refer to the end product consumers. For example, when you have a labor cartel (the equivalent of the consumer), depending on which side you’re looking at it, the parties to the transaction are the employer and labor. So, if it [the market] is a monopsony the victims are the employees and it could be in reverse too. You could have a labor cartel where the employers are the victims. But the point here is the consumer in that case is one of those two parties depending on which side of the market you’re looking at; it’s not the ultimate [product] consumer. In retail markets, and other markets, the ultimate consumer is who you would popularly think of as a consumer. Defining consumer welfare that way [where the consumer is not necessarily the person buying an end product] I think is the proper way for antitrust to be applied. When you look at other objectives [that one may have], there are a lot of very important objectives. There are privacy objectives, there are social policy objectives. I don’t think antitrust is a particularly useful mechanism for trying to achieve those because it’s not really finely tuned to do that. You should pass other laws to deal with those objectives, or other regulations, in my view. People sometimes will seize upon antitrust and say let’s use it for those purposes too. The problem is that the legal rules aren’t really designed to achieve non-economic objectives, so it would be kind of a clumsy instrument. Antitrust may have indirectly some of those [non-economic] effects. So for example, if you stop a merger, you may have beneficial effects for some other social policies…and a lot of times which I happen to see sometimes in oversees antitrust, you see antitrust law used for all sorts of other policy objectives and it really isn’t a great instrument for doing that.
Do you anticipate any other—any newer, perhaps—types of legal claims made on behalf of NCAA student-athletes? Obviously, we have had antitrust litigation, we have had unionization attempts…
I think we’ll just have to wait and see. I’m so focused on antitrust because that’s what I do, but certainly there are a lot of other claims out there. There are always Title IX claims out there that student-athletes are bringing against the schools. There is concussion litigation out there you know that’s pending against the NCAA and the schools. And I think one of the suits is in the process of being settled. But you know I’m sure there are other people looking at other rights that the athletes have.7
Jason Grant, Attorney of the Year Finalist: Jeffrey Kessler, LAW.COM (Oct. 21, 2019), https://www.law.com/newyorklawjournal/2019/10/21/attorney-of-the-year-finalist-jeffrey-kessler/ [https://perma.cc/RLJ2-7SH6].↩
Sherif Farrag, Fight Between NCAA and Student-Athletes Continues in Forthcoming Appeal, Fordham Intell. Prop. Media & Ent. L.J.: Blog @ Fordham IPLJ (Oct. 28, 2019), http://www.fordhamiplj.org/2019/10/28/fight-between-ncaa-and-student-athletes-continues-in-forthcoming-appeal/ [https://perma.cc/E763-MBLG].↩
This case settled, with one of the settlement provisions being the Oscar Robertson Rule. The rule eliminated the reserve clause in NBA players’ contracts, which was how team management prevented players from changing teams. The Oscar Robertson Rule: landmark court decision changed the balance of power in professional sports, Oscar Robertson: Player of the Century (Mar. 13, 2020 6:55 pm), https://www.oscarrobertson.com/oscar-robertson-rule [https://perma.cc/SQM3-L8JR].↩
John Carlos and Tommie Smith were part of the iconic podium fist raise of the 1968 Olympics. For their expression of solidarity with the civil rights movement, the International Olympic Committee kicked them out of the Olympics. The USOC suspended them from the US team. Their commercial endorsement opportunities vanished, and they received death threats. Nancy Armour, Opinion: ‘We were wrong,’ as USOPC finally do right by Tommie Smith, John Carlos, USA Today, https://www.usatoday.com/story/sports/columnist/nancy-armour/2019/09/23/olympics-tommie-smith-john-carlos-get-recognition-they-deserve/2423576001/ (last visited Mar. 13, 2020) [https://perma.cc/6SWP-KP95].↩
While O’Bannon recognized that collegiate athletes have rights to their name, image, and likeness, the court did not establish that the NCAA could not restrict players’ ability to license their name, image, and likeness to third parties. See O’Bannon v. NCAA, 802 F.3d 1049 (9th Cir. 2015).↩
Wigdor LLP is currently bringing a class-action in the Eastern District of Pennsylvania arguing that college athletes are employees and must be paid like other students, such as those who participate in work-study programs. Dan Murphy, Lawsuit makes another attempt at wages for all college athletes, ESPN (Mar. 13, 2020, 8:18 PM), https://www.espn.com/college-sports/story/_/id/28029070/lawsuit-makes-another-attempt-wages-all-college-athletes [https://perma.cc/QSP5-CKMA].↩